STATE v. MARCUM ( 2014 )

LUMPKIN, Judge,

Specially Concur.

T1 I concur in the Court's decision and agree there is no expectation of privacy in text messages held by a third party. I write separately to address the issue in Proposition II, of whether Mareum had the legal capacity to claim the protection of the Fourth Amendment. Her "expectation of privacy" is no more than her "standing" to contest the warrant. It is not a trump over the search warrant. As I stated in my separate writing to State v. Bass, 2018 OK CRT, 300 P.3d 1193, while the Supreme Court in Rakes distinguished between the traditional concept of "standing" and the "capacity to claim the protection of the Fourth Amendment", the term "standing" is still used by many courts. See Davis v. United States, - U.S. -, 131 S.Ct. 2419, 2481, 180 L.Ed.2d 285 (2011); Kentucky v. King, - U.S. -, 181 S.Ct. 1849, 1854 n. 1, 179 L.Ed.2d 865 (2011); Brendlin v. California, 551 U.S. 249, 259, 127 S.Ct. 2400, 2408, 168 LEd.2d 182 (2007); United States v. Christian, 48 F.3d 527, 530-31 (10th Cir.1994); United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir.1984); Marshall v. State, 2010 OK CR 8, ¶ 48, 232 P.3d 467, 478; State v. Howerton, 2002 OK CR 17, 119, 46 P.3d 154, 158; Anderson v. State, 1999 OK CR 44, 118, 992 P.2d 409, 417; Munson v. State, 1988 OK CR 124, ¶ 34, 758 P.2d 324, 334.

2 Regardless of this dichotomy of labels, the bottom line is the courts are to determine the legal capacity of a defendant to challenge an issue based on the analysis of an "expectation of privacy". Once a court determines the legal capacity of a defendant to challenge the evidence at issue, the court can then address the substantive issues relating to the objection to the evidence.

13 In the present case, even if Marcum had established she had a reasonable expectation of privacy, or standing, to raise an objection to the search and seizure of the business records, she has not shown that the execution of the search warrant and resulting seizure of evidence was unreasonable under the Fourth Amendment. See State v. Sitingdown, 2010 OK CR 22, 117, 240 P.3d 714, 718 ("[the exclusionary rule is not applied when a law enforcement officer has conducted a search in 'objectively reasonable reliance' upon a search warrant issued by a magistrate and has abided by the terms of the warrant even if the warrant is subsequently determined to be invalid" citing United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984).