Does a Defendant Have Standing to Challenge a Warrantless Search of a Co-Defendant’s Cellphone?
The Massachusetts Supreme Judicial Court will hear oral arguments in a case on November 2nd addressing who has standing to challenge the illegal search of a phone. Does a person sending a text message have standing to challenge the illegal search of a phone.
This issue came up in the case of Commonwealth v. Delgado-Rivera. This case is on appeal from Superior Court allowing a Motion to Suppress on behalf of Mr. Jorge Delgado-Rivera. The issue in this case is whether the trial court erred in ruling that Mr. Delgado-Rivera has standing to challenge a warrantless search of a Co-Defendant’s cellphone on the grounds that Mr. Delgado-Rivera had sent the Co-Defendant text messages. Standing means does a person have a right to have the court hear their claim that their 4th Amendment rights were violated. Simply put, this means did the person have a expectation of privacy that society deems reasonable. This case is very important as more and more information is shared over technology.
What happened in Delgado-Rivera?
Jorge Delgado-Rivera and other co-defendants were indicted on charges of drug trafficking pursuant to G.L. c. 94C, § 32E(b), conspiracy to violate Drug Law pursuant to G.L. c. 94C, § 40, and money laundering pursuant to G.L. c. 267A, § 2. Law enforcement searched Co-Defendant’s Garcia-Castenda’s vehicle, cellphone, and himself without a warrant and allegedly without consent.
Co-Defendant Leonel Garcia- Castaneda moved to suppress all evidence seized because of an alleged traffic violation stop and search. One of the items seized was Mr. Garcia-Casteneda’s cell phone which included text messages sent by Mr. Delgado-Rivera. Shortly after, Delgado-Rivera joined in on the motion.
The trial court allowed the Motion to Suppress based on the finding that Mr. Delgado-Rivera had standing on the matter and the prosecution’s only witness, the officer who searched Mr. Garcia-Castaneda’s phone, pleaded the 5th and did not testify.
The Defense argued that Delgado-Rivera had a reasonable expectation of privacy that his text messages would only be seen by those to which they were sent and accordingly he had standing to challenge the illegal search. The Commonwealth relied on the doctrine of disclosures to a third-party defeat any expectation of privacy. The third party disclosure doctrine is undated given all of our data in some respects goes through third parties. This third party disclosure doctrine would eliminate many of our long standing expectation of privacy.
Cell Phone Data and Conversation receive 4th Amendment Protections
The defense lawyer argued that there is a right of privacy relying on the case of Commonwealth v. Almonour, 482 Mass. 35 (2019) where the SJC emphasized that privacy rights cannot be left at the mercy of technology but must be preserved and protected as new technologies are adopted and applied by law enforcement. Additionally, in Commonwealth v. Fulgiam, 477 Mass. 20, 33 (2017), the Supreme Judicial Court held that a search warrant was required to obtain the text messages from a defendant’s cellphone and that the defendant has a reasonable expectation of privacy in the content of the messages. The SJC has also ruled in Commonwealth v. Augustine, 467 Mass. 230 that persons have an expectation of privacy in their historical cellphone information. The United States Supreme Court also recognized the privacy interest in cell phone in Riley v. California, 573 U.S. 373 (2014) t finding that police officers must secure a warrant before searching a cellphone incident to an arrest. The recent trend in the case law is to recognize the privacy interest in cell phones and protect the data as private information.
Text Message are no different than Oral Communications
The defense argued that text messages are no different than oral communications; if someone makes a phone call to another person, there is a reasonable expectation that the call is a private call, absent a warrant. The fact that the data runs through a third party and stays on the phone does not change that expectation of privacy. Text messaging has evolved the way people communicate and the defense correctly argued that changing technology should not diminish Constitutional protections under the 4th Amendment.
The Massachusetts SJC stated in Almonor that “society reasonable expects that the police will not be able to secretly manipulate our personal cellphones for any purpose, let alone for the purpose of transmitting our personal location data.”
To determine if there is a reasonable expectation of privacy the Court looks to:
- whether the defendant has a manifest subjective expectation of privacy n the object of the search;
- whether society is willing to recognize that expectation of privacy as reasonable.
In this case, the defense argued that these two elements have been established; the defendant expected the text message to stay private. Additionally, since text messages have become the primary form of communication, a text should receive at minimum the same level of Constitutional protection as a private phone call.
The Defense argued that the Wiretapping law reveals a publish policy to protect private communications. Under the wire tap law, it is a crime to secretly record a conversation. This is true whether the conversation is in person or over the telephone. The Massachusetts Wire Tap statute reveals a Public policy to keep private communications confidential.
As a Massachusetts Criminal Defense Lawyer, I would expect the SJC to continue find that the sender of text messages does have standing to challenge the illegal search of the phone of another person. It is the communication that receive the protections of the 4th Amendment; the fact that it is stored for a longer period of time does not change the principal that communications are expected to be private regardless of the technology used to carry out the conversation. The case will be argued Monday and I will Blog about the arguments and follow this case closely.
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