State v. Roden , 179 Wash. 2d 893 ( 2014 )

González, J.

¶1 We are asked to decide whether Washington’s privacy act protects text messages intercepted by a detective who possessed the intended recipient’s cell phone after a warrantless seizure. Ch. 9.73 RCW. A police detective spent 5 to 10 minutes browsing through a cell phone officers took from Daniel Lee incident to his arrest for possession of heroin. The detective noticed several text messages from Jonathan Roden, responded to Roden with a new text message, and arranged a drug deal. Roden was consequently arrested. Roden contends that the detective’s conduct violated the privacy act and the state and federal constitutions.

¶2 We agree that Washington’s privacy act was violated because a detective intercepted private communications without Lee’s or Roden’s consent or a warrant. We reverse the Court of Appeals’ decision and Roden’s conviction.

Background

¶3 Longview police arrested Lee for possession of heroin and seized his iPhone. The iPhone, which continually received calls and messages at the police station, was handed over to Detective Kevin Sawyer when he started his shift that evening. The police apparently did not place the phone in an evidence or inventory locker or otherwise secure it after Lee’s arrest. The record does not indicate how long officers kept possession of the phone before giving it to Detective Sawyer.

¶4 Detective Sawyer looked through the iPhone for about 5 or 10 minutes and saw a text message from a contact identified as “Z-Jon.” It read, “I’ve got a hundred and thirty for the one-sixty I owe you from last night.” Verbatim Report of Proceedings (VRP) (Apr. 29,2010) at 11. Posing as Lee, Sawyer sent Z-Jon a text message reply, asking him if he “needed mor e” Id. Z-Jon responded, “Yeah, that would be cool. I still gotta sum, but I could use some more. I prefer to just get a ball, so I’m only payin’ one eighty for it, instead of two Ts for two hundred.” Id. Detective Sawyer recognized that Z-Jon was using drug terminology, and through a series of exchanged messages, Detective Sawyer arranged a meeting with Z-Jon purportedly to sell him heroin. When Roden arrived for the transaction, he was arrested.

¶5 Roden was charged with attempted possession of heroin. Roden moved to suppress the evidence obtained from the iPhone, claiming the evidence was obtained in violation of article I, section 7 of the Washington State Constitution; the privacy act, ch. 9.73 RCW; and the Fourth Amendment to the United States Constitution. The trial court denied the suppression motion and found Roden guilty on stipulated facts.

¶6 On appeal, Roden argued that the detective’s conduct violated the privacy act. The Court of Appeals affirmed, State v. Roden, 169 Wn. App. 59, 279 P.3d 461 (2012), and Roden petitioned this court for review under both the privacy act and the state and federal constitutions. We accepted review. State v. Roden, 175 Wn.2d 1022, 291 P.3d 253 (2012).

Standard of Review

¶7 This court reviews a trial court’s legal conclusions on a motion to suppress de novo. State v. Schultz, 170 Wn.2d 746, 753, 248 P.3d 484 (2011) (citing State v. Smith, 165 Wn.2d 511, 516, 199 P.3d 386 (2009)).

Analysis

¶8 Washington’s privacy act broadly protects individuals’ privacy rights. See ch. 9.73 RCW; State v. Williams, 94 Wn.2d 531, 548, 617 P.2d 1012 (1980). It is one of the most restrictive electronic surveillance laws ever promulgated. State v. Faford, 128 Wn.2d 476, 481, 910 P.2d 447 (1996) (citing State v. O’Neill, 103 Wn.2d 853, 878, 700 P.2d 711 (1985) (Dore, J., concurring in part, dissenting in part)). The act prohibits anyone not operating under a court order from intercepting or recording certain communications without the consent of all parties. RCW 9.73.030, .040, .090(2). Overall, the act “significantly expands the minimum standards of the federal statute [, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520,] and offers a greater degree of protection to Washington citizens.” O’Neill, 103 Wn.2d at 879 (Dore, J., concurring in part, dissenting in part).

¶9 The act states:

[I]t shall be unlawful for . . . the state of Washington, its agencies, and political subdivisions to intercept, or record any:

(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.

RCW 9.73.030(1).¹ Evidence obtained in violation of the act is inadmissible for any purpose at trial. RCW 9.73.050.

¶10 There are four prongs we consider when analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device that was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication. State v. Christensen, 153 Wn.2d 186, 192, 102 P.3d 789 (2004) (citing RCW 9.73.030). At issue here is whether the text messages were “private communications” and if so, whether they were “intercepted” within the meaning of the statute. We answer both questions affirmatively and do not reach Roden’s constitutional arguments.²

A. Whether the Text Messages Were Private Communications

¶11 The act does not define the word “private,” but we have adopted the dictionary definition: “ ‘belonging to one’s self . . . secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something ... a secret message: a private communication ... secretly: not open or in public.’ ” State v. Townsend, 147 Wn.2d 666, 673, 57 P.3d 255 (2002) (alterations in original) (internal quotation marks omitted) (quoting Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992)). The question of whether a particular communication is private is generally a question of fact, but one that may be decided as a question of law if the facts are undisputed. Id. (citing State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384 (1996)). In determining whether a communication is private, we consider the subjective intention of the parties and may also consider other factors that bear on the reasonableness of the participants’ expectations, such as the duration and subject matter of the communication, the location of the communication, and the presence of potential third parties. Id. at 673-74 (citing Clark, 129 Wn.2d at 225-27). We will generally presume that conversations between two parties are intended to be private. State v. Modica, 164 Wn.2d 83, 89, 186 P.3d 1062 (2008).

¶12 Roden’s messages to Lee were private communications. Text messages encompass many of the same subjects as phone conversations and e-mails, which have been protected under the act. See Faford, 128 Wn.2d at 488; Christensen, 153 Wn.2d at 200-01; Townsend, 147 Wn.2d at 680. Roden manifested his subjective intent that the text messages would remain private by sending them to the cell phone of a personal contact. Roden did not use a group texting function, which enables text messages to be exchanged between multiple parties, or indicate in any other manner that he intended to expose his communications to anyone other than Lee. See VRP (Apr. 29, 2010) at 25. Moreover, the illicit subject matter of Roden’s text messages indicates that he trusted the communication was secure and private.

¶13 We reject the State’s argument that a subjective expectation of privacy in a text message conversation is unreasonable because of the possibility that someone could intercept text messages by possessing another person’s cell phone. In the context of new communications technology, we have continually held that the mere possibility of intrusion will not strip citizens of their privacy rights. Faford, 128 Wn.2d at 485 (citing State v. Young, 123 Wn.2d 173, 186, 867 P.2d 593 (1994); State v. Myrick, 102 Wn.2d 506,513-14, 688 P.2d 151 (1984)); see also Townsend, 147 Wn.2d at 678.

¶14 Sophisticated text messaging technology enables “ [1] ayered interpersonal communication[s]” that reveal “intimate ... thoughts and emotions to those who are expected to guard them from publication.” State v. Patino, No. P1-10-1155A, slip op. at 83, 70 (R.I. Super. Ct. Sept. 4, 2012). Text messaging is an increasingly prevalent mode of communication, and text messages are raw and immediate communications. State v. Hinton, 179 Wn.2d 862, 877, 319 P.3d 9 (2014). Individuals closely associate with and identify themselves by their cell phone numbers, such that the possibility that someone else will possess an individual’s phone is “unreflective of contemporary cell phone usage.” Patino, slip op. at 70.

¶15 The possibility that an unintended party can intercept a text message due to his or her possession of another’s cell phone is not sufficient to destroy a reasonable expectation of privacy in such a message. The Court of Appeals below relied on State v. Wojtyna, 70 Wn. App. 689, 855 P.2d 315 (1993), where it noted that one who transmits a message to a pager “ ‘runs the risk that the message will be received by whomever is in possession of the pager.’ ”70 Wn. App. at 694 (quoting United States v. Meriwether, 917 F.2d 955,959 (6th Cir. 1990)). The Court of Appeals’ reliance on Wojtyna overlooks the significant differences between pager and text message communications. There, the court held that Wojtyna’s phone number, as displayed on a pager that he messaged, was not a private communication under the privacy act. Id. at 695-96. The back-and-forth text messaging conversation here is much more like e-mail exchanges and telephone calls — which the act plainly protects — than a simple informational statement that is sent to a pager. Unlike pagers, cell phones convey substantive, often confidential information and provide options to password-protect their contents. As text messaging increasingly becomes a substitute for more traditional forms of immediate communication, text messages should be afforded the same protections from interception that are recognized for telephone conversations. See State v. Clampitt, 364 S.W.3d 605, 611 (Mo. Ct. App. 2012) (noting that “society’s continued expectation of privacy in communications made by letter or phone call demonstrates its willingness to recognize a legitimate expectation of privacy in the contents of text messages”). We have repeatedly affirmed traditional expectations of privacy in the context of new communications technology notwithstanding some possibility of interception.

¶16 We find Townsend more instructive than Wojtyna. In Townsend, a detective set up a sting operation by establishing an Internet e-mail account and an ICQ chat room account using a screen name of Amber, a fictitious 13-year-old girl. 147 Wn.2d at 674. Townsend began communicating with Amber, sending e-mails and ICQ messages containing graphic discussions about sexual topics. Id. at 671. The detective eventually made arrangements with Townsend to meet Amber at a motel to have sex. Id. We held that Townsend’s “subjective intention that his communications were private was [not] unreasonable under the circumstances,” even though “interception of these messages was a possibility.” Id. at 674. We concluded that the communications were private but that Townsend consented to the recording and therefore the act was not violated. Id. at 678-79.

¶17 Similarly, in Faford, when the Fafords’ neighbor purchased a police scanner and eavesdropped on their cordless telephone conversations about a marijuana grow operation, we were presented with the question of whether the act protected phone calls made using the then-new technology of cordless telephones. 128 Wn.2d 476. We noted that “[defendants . . . clearly intended the information related in their telephone conversations to remain confidential . . . regardless of their use of a cordless telephone instead of a conventional telephone,” and we found that the scanner interception violated the privacy act. Id. at 485, 488.

¶18 In Christensen, we held it was a violation of the privacy act for a woman to listen to her daughter’s phone conversation using the speakerphone function of the base unit of the cordless phone. 153 Wn.2d 186. The ease with which the interception could take place did not defeat the daughter’s reasonable expectation of privacy in her phone call. Id. at 193.

¶19 Like in Townsend, Faford, and Christensen, it is evident that Roden intended for his communications to remain private, and despite the possibility of intrusion due to the medium he used, Roden did not voluntarily expose his communications to the public in a way that removes them from protection under the act. See Hinton, 179 Wn.2d at 873-74. We have found information willingly imparted to an unidentified stranger falls outside the protection of the act, as do some conversations that take place in “the presence of one or more third parties” in a “marketplace atmosphere.” Clark, 129 Wn.2d at 228. But the text messages here did not involve statements voluntarily made to strangers or routine sales conversations on public streets. Cf. Clark, 129 Wn.2d at 228; Kadoranian, 119 Wn.2d at 190 (concerning inconsequential nonincriminating statements made to a stranger); State v. Goucher, 124 Wn.2d 778, 881 P.2d 210 (1994) (voluntary statements made to a stranger). Roden’s text messages were private communications that the act protects from interception.

B. Whether There Was an Interception or a Recording by a Device

¶20 The Court of Appeals resolved this case under Townsend, finding there was no violation of the privacy act because Roden impliedly consented to the recording of his text messages. Roden, 169 Wn. App. at 67 (noting that Roden “anticipated that the iPhone would record and store the incoming messages”). But Townsend turned on a different question than the one presented here. In Townsend, we held that Townsend’s communications to Amber were private but that the act was not violated because Townsend knew e-mails are inherently recorded and thus he impliedly consented to the recording. 147 Wn.2d at 678-79. Here, the question is not whether a recording was lawful; the question is whether the messages were intercepted under the act. Because we find the privacy act was violated by the interception of the private text messages, we do not address whether they were unlawfully “recorded” within the meaning of the act.

¶21 The messages that Roden sent to Lee were opened, read, and responded to by an officer before they reached Lee. The statute does not define the term “intercept.” Where there is no statutory definition to guide us, words should be given their ordinary meaning. See State v. Athan, 160 Wn.2d 354, 369, 158 P.3d 27 (2007) (looking to ordinary meaning — often supplied by dictionaries — to determine whether saliva on an envelope is a “communication” within the scope of the privacy act); Kadoranian, 119 Wn.2d 178 (looking to the ordinary definition of “private”). Finding the detective’s action to be an interception is consistent with the ordinary definition of “intercept” — to “stop . . . before arrival ... or interrupt the progress or course.” Webster’s Third New International Dictionary 1176 (2002). Unlike in Townsend, where the defendant communicated directly with the officer’s fictitious online profile, the detective here intercepted text messages directed to an actual acquaintance.

¶22 We reject the contention that the detective did not intercept the messages because he was a party to the communication. Amicus curiae Washington Association of Prosecuting Attorneys (WAPA) cites foreign case law finding that a caller cannot claim an interception of a private communication where that caller elected to continue a phone conversation with an officer who answered a third party’s phone and posed as the intended recipient of the call or as that person’s accomplice. See, e.g., United States v. Pasha, 332 F.2d 193, 198 (7th Cir. 1964), cert. denied, 379 U.S. 839, 85 S. Ct. 75, 13 L. Ed. 2d 45 (1964); State v. Lamontagne, 136 N.H. 575, 618 A.2d 849 (1992). But see United States v. Chong In Kim, 803 F. Supp. 352 (D. Haw. 1992) (finding an unlawful interception where an officer who possessed a suspect’s phone pursuant to a statutory forfeiture provision answered it and impersonated the suspect). While a caller placing a voice call hears the recipient’s voice and has the opportunity to detect deception, sending a text is more like mailing a letter. The sender addresses mail to a particular individual and reasonably expects the communication to be routed to and received by the addressee. Reading a letter addressed to another individual certainly does not render that person the intended recipient, and the ordinary meaning of “intercept” would encompass opening and reading a letter in someone else’s mailbox before they receive it. See Webster’s, supra, at 1176.

¶23 WAPA also suggests that there was no interception because once the text messages reached the phone, they were in electronic storage and fell outside the scope of the act. See Br. of Amicus Curiae WAPA at 12. WAPA calls to our attention to federal cases that exclude stored electronic and wire communications from the protection of the federal wiretap statute. United States v. Steiger, 318 F.3d 1039, 1048 (11th Cir. 2003); Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003); Konop v. Haw. Airlines, Inc., 302 F.3d 868, 876 (9th Cir. 2002).

¶24 Federal cases on this issue are not instructive given the significant differences between the state and federal statutory schemes. The federal statute defines terms with greater technical specificity and expressly governs stored communications under separate provisions, evidencing Congress’ intent to treat communications differently based on technical distinctions. See Steiger, 318 F.3d at 1048; 18 U.S.C. § 2510. The Washington statute does not include technical definitions or independent provisions for stored communications, and we have consistently interpreted its terms broadly. See, e.g., State v. Gunwall, 106 Wn.2d 54, 69, 720 P.2d 808 (1986) (concluding that a pen register intercept comes within the definition of a “private communication transmitted by telephone”). In Christensen, we declined to find that interception can occur only with a device separate from the one used to communicate, 153 Wn.2d at 197, and in Faford, we rejected the trial court’s narrow definition of “transmit” and expressly chose an alternative and broad definition “[i]n light of the breadth of the act’s purpose,” 128 Wn.2d at 483-84.

¶25 Detective Sawyer did not merely see a message appear on the iPhone. Instead, he manipulated Lee’s phone, responded to a previous text from Roden, and intercepted the incoming text messages before they reached Lee. Whether it is also a violation of the act to access text messages that have already been received by the intended recipient and remain in storage is not the question before us today. We decline to find there was no interception here based on the fact that the messages were in electronic storage when they reached the phone — a technicality that has no relevance under our state statute.

Conclusion

¶26 When the detective intercepted Roden’s text messages to Lee, officers had already booked Lee into jail, and the State does not argue that exigent circumstances required a warrantless search of the phone. There is simply no evidence that there was insufficient time for law enforcement officials to seek a court order. We find that the privacy act was violated because the detective intercepted Roden’s private communications without Lee’s or Roden’s consent and without a court order. We reverse the Court of Appeals and reverse Roden’s conviction without prejudice.

C. Johnson, Fairhurst, Stephens, and Gordon McCloud, JJ., concur.

1 The statute provides for several exceptions that are not relevant here. For example, police and fire departments are permitted to record incoming telephone calls. RCW 9.73.090(1). It is also lawful to intercept oral communications when one party consents and an officer has obtained a court order based on probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony. RCW 9.73.090(2). Finally, interception or recording is permitted upon a finding by a judge or magistrate that there is probable cause to believe that the communication concerns enumerated criminal acts relating to controlled substances. RCW 9.73.090(5).

2 We accepted review of another case stemming from this set of facts, and there we had occasion to consider whether a text message conversation is protected under article I, section 7 of the Washington State Constitution. State v. Hinton, 179 Wn.2d 862, 319 P.3d 9 (2014).