State v. Roden
321 P.3d 1183, 179 Wash. 2d 893 (2014)
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Rule of Law:
Washington’s privacy act (RCW 9.73.030(1)) protects text messages from warrantless interception by law enforcement, and a police detective's act of accessing, reading, and responding to incoming text messages on a seized cell phone by posing as the intended recipient constitutes an unlawful interception without the consent of all parties or a court order.
Facts:
- Longview police arrested Daniel Lee for possession of heroin.
- Police seized Lee's iPhone incident to his arrest.
- The iPhone continually received calls and messages at the police station.
- Detective Kevin Sawyer took possession of Lee's iPhone and spent 5 to 10 minutes browsing through it.
- Detective Sawyer saw a text message on Lee's iPhone from a contact identified as “Z-Jon” (Jonathan Roden) regarding a drug debt.
- Posing as Lee, Detective Sawyer sent a text message reply to Z-Jon, asking if he “needed more.”
- Through a series of exchanged messages with Z-Jon, Detective Sawyer arranged a meeting to purportedly sell heroin.
Procedural Posture:
- Jonathan 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 state and federal constitutional provisions and the privacy act.
- The trial court denied Roden's suppression motion and found him guilty on stipulated facts.
- Roden appealed the trial court's decision to the Washington Court of Appeals, arguing a privacy act violation.
- The Court of Appeals affirmed the trial court's decision, ruling that there was no violation of the privacy act.
- Roden petitioned the Washington Supreme Court for review under both the privacy act and the state and federal constitutions.
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Issue:
Does a police detective violate Washington's privacy act (RCW 9.73.030(1)) when, without a warrant or consent, the detective takes possession of an arrestee's cell phone, reads incoming text messages, and poses as the arrestee to engage in a text message conversation with a third party, thereby "intercepting" private communications?
Opinions:
Majority - González, J.
Yes, a police detective violates Washington's privacy act when, without consent or a warrant, the detective accesses an arrestee's cell phone, reads incoming text messages, and engages in a text conversation with a third party by posing as the arrestee. The court held that Roden's text messages were "private communications" under RCW 9.73.030(1) and that Detective Sawyer's actions constituted an "interception." The court reasoned that text messages are private communications, akin to phone conversations and e-mails, and a subjective intent of privacy is presumed, especially given the illicit subject matter. The court rejected the State's argument that the mere possibility of intrusion, such as someone possessing a cell phone, destroys an expectation of privacy, distinguishing text messages from pagers and affirming privacy rights in new technologies, consistent with precedents like State v. Faford and State v. Townsend. Regarding "interception," the court defined it according to its ordinary meaning: to "stop... before arrival ... or interrupt the progress or course." Detective Sawyer's actions of manipulating Lee's phone, responding to Roden's text, and intercepting incoming messages before they reached Lee fit this definition. The court distinguished this situation from cases where an officer is an original party to a communication and rejected the argument that messages in electronic storage fall outside the act, emphasizing the Washington privacy act's broad interpretation compared to federal statutes. Since the detective acted without Lee's or Roden's consent or a court order, the interception violated the act.
Dissenting - Wiggins, J.
No, Detective Sawyer did not violate Washington’s privacy act because there was no "interception" as the text messages reached their intended destination, the iPhone, without interruption. The dissenting opinion argued for a strict construction of the term "intercept" in RCW 9.73.030, particularly because it is a criminal statute. It reasoned that "interception" should refer to the acquisition of a communication during transmission, meaning it must be stopped or interfered with while it is actively moving from one point to another. Once a message has arrived at the phone, it is no longer "in transmission" and therefore cannot be intercepted. The dissent highlighted the historical context of the privacy act's enactment in 1967, where the legislative concern was with wiretapping and electronic eavesdropping of ongoing communications, not accessing stored messages on mobile devices, which did not exist at the time. It also pointed out practical difficulties with the majority's broad interpretation, such as potentially criminalizing an ordinary citizen who finds a lost phone and attempts to return it. The dissent concluded that the detective merely viewed and responded to texts after they had already arrived at the iPhone, which should not constitute an interception under a strict reading of the statute and its original legislative intent.
Analysis:
This case significantly broadens the scope of Washington’s Privacy Act (RCW 9.73) to include text messages, treating them similarly to traditional forms of communication like phone calls and emails. It clarifies that accessing and responding to incoming text messages on another's phone, even if the phone has "received" them but the intended recipient has not yet processed them, constitutes an "interception" requiring consent or a warrant. The decision reinforces Washington's strong protection of privacy rights in electronic communications, diverging from stricter federal interpretations that focus on "contemporaneous with transmission." Future cases will likely build on this precedent to define "interception" in the context of other evolving communication technologies and the distinction between accessing "incoming" versus "stored" data.
