State v. Carle
Case # A150975
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A150975.pdf
During a police search of another person, officers found a phone that had just received a text message. The police flipped open the phone and saw a message from Carle asking if the recipient wanted to buy methamphetamine. The police texted a message back to Carle, and the two parties arranged a sales transaction for methamphetamine. Carle was subsequently arrested and convicted for conspiracy to commit delivery of methamphetamine. Carle now appeals her denied motion to suppress evidence of the initial text. She argues that the police committed an unlawful search under both Oregon and United States Constitutions when they viewed the text message that appeared on the recipient’s phone. That unlawful search, in turn, violated her privacy interest in the text message.
The appellate court addresses whether Carle retained any protected privacy interest in the text message once it was delivered to the recipient’s phone. If there remains a possibility that a defendant will reclaim something given to a recipient (e.g., collateral), then the defendant retains a privacy interest in that thing. State v. Tanner, 304 Or 312, 323, 745 P2d 757 (1987). If, however, a defendant gives up all rights to control disposition of something (e.g. garbage put to the curb for pick up by a sanitation company), then the defendant retains no privacy interests in that thing. State v. Howard/Dawson, 342 Or 635, 643-44, 157 P3d 1189 (2007).
The court of appeals determines that a text message is not like collateral but is more like garbage put to the curb. Once a recipient receives a text message, the sender has no control over what the recipient does with that message. The recipient could delete the message, forward it, or show it to someone. Because a sender gives up any right to control a recipient’s use of the sender’s text message, that sender also gives up any protected privacy interest in the message.
As such, Carle had no protected privacy interest in the message she sent to the recipient’s phone. The police, therefore, did not conduct a “search” under the Oregon Constitution or the United States Constitution, and Carle’s motion to suppress was properly denied.