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Is Observing a Phone’s Notifications a “Search” Under the Fourth Amendment? Supreme Court May Decide.

A sex abuse and Fourth Amendment case is currently pending before the United States Supreme Court. In the case of Ohio v. Deuble, undercover officers viewed a defendant texting on his phone and observed the notifications on the phone to use as cause to arrest the defendant.

This case asks two questions; the first question being whether probable cause existed under the Fourth Amendment to the U.S. Constitution to detain a person suspected of soliciting sexual activity from an undercover officer posing as a minor through social medial where the person’s identity is corroborated through the person’s actions.

In this case, the Respondent never actually “met” the “teenage girl” he was sexting with online. But, the Respondent agreed to meet the law enforcement officer posing as a minor for sexual activity and was the only person observed at the agreed meeting location using his cell phone as the law enforcement officer posing as the minor sent communications to the suspect through a social media application.

The second question asks whether a phone is searched under the Fourth Amendment where law enforcement officers do not affirmatively access the phone’s content.

What happened in the Deuble case?

A man by the age of 21 was chatting with a person he met on the lesser-known social media app “Whisper.” The man suspected he was chatting with 15-year-old “Bella Jane.” However, “Bella Jane” was actually a law enforcement officer posing as a teenager online to catch sexual predators.

Respondent initiated the conversation with “Bella Jane” with a bold first message that included a detailed description of his penis. “Bella Jane” responded, and the Respondent messaged back with more crude language and a photo of his penis. That morning, several investigators conducted surveillance, and Respondent sent a message to “Bella Jane” around the time he was supposed to meet her. After more sexting, the Respondent arranged to meet “Bella Jane” later that morning at a park nearby at 10:00 am. He said that he would be driving a green Honda. However, Respondent drove by the park and noticed police vehicles. He then messaged “Bella Jane” and said, “I drove by, and there was a cop, I am not trying to get arrested.”

An hour later, he returned to the park and began playing basketball. The undercover officer continued to message the Respondent through the app. Every time the officer would message the Respondent, the Respondent was observed to use his phone and reply. Based on this observed evidence, the officer radioed another officer to have Respondent arrested.

Once Respondent was detained, the officers collected his phone from the basketball court and sent a “test message.” to confirm that he was the person chatting with the undercover officer. He was taken into a truck for questioning and read his Miranda warnings. He admitted that he had come to the park that day to have sex with a 15-year-old girl. The officers sent a message to Respondent and saw that a notification appeared on the screen. The officers used this information for cause to arrest Respondent. Testimony during the suppression hearing supports the contention that law enforcement officers did not access the phone’s contents but observed a notification on Respondent’s phone screen.

At trial, the Respondent moved to suppress evidence, which the trial court denied. He sought to suppress all evidence at trial, which included his statement and the contents of his cell phone. He asserted that he was arrested without probable cause and that all of the evidence gathered should be excluded under the Fourth Amendment’s right against unreasonable seizure.

The appellate court applied Riley v. California to the case and held that the Respondent had a reasonable expectation of privacy when it came to his phone notifications. However, other circuits have found that there is no such expectation of privacy. Some courts compare notifications to a cell phone ringing; there is no reasonable expectation of privacy when it comes to one’s ringtone. However, notifications are much more detailed and give more information than just a ringtone.

The Supreme Court should grant cert because the tactics used in this case are commonly used in many child sex crime investigations. The Supreme Court should clarify if observing a phone’s notifications without actually “going through” the phone constitutes a search under the Fourth Amendment. As illustrated in this case, it is common for the law to lag behind technology. However, when the law fails to catch up, it can result in severe consequences.

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