Warrant Needed To See A Defendant's Text Messages

Posted by Doug Murphy | Apr 17, 2017 | 0 Comments

The most severe punishment a defendant can face for a criminal conviction in Texas is the death penalty. The Lone Star state has executed more people than any other state by far since the death penalty was reinstated in the U.S. in 1976. One man on death row, Albert Leslie Love Jr., was recently granted a second trial by the Texas Court of Criminal Appeals. This court is the court of last resort for criminal cases in the state. On December 7, 2016 the court handed down its decision in Love's case.

Love was convicted of capital murder for his role in the deaths of two people and given the death penalty. He appealed his conviction to the Court of Criminal Appeals arguing a number of different points, including that the trial court had erred in allowing text messages from Love's cell phone to be admitted into evidence because the messages were seized without a warrant.

The court looked at whether or not Love's Fourth Amendment rights were violated. The court stated, "[t]he question in this case is whether appellant had an expectation of privacy in his service provider's records of his cell phone use, and whether society would regard that expectation as reasonable or justifiable under the circumstances."

The law typically does not protect a person's right to privacy when that person voluntarily reveals the information to a third party. Some information that is on a person's cell phone has been deemed public information such as the phone numbers that people dial. The court noted, however, that content was different, stating, "Records containing personal content, on the other hand, seem to require more protection."

Courts have already decided that "the government must first obtain a search warrant before it may search the contents of a person's cell phone that has been taken from the person of a defendant." The court looked at whether the same would hold true for text messages that the defendant sent because the messages were transmitted through a service provider and can remain stored in the provider's servers. The court asked, "Has the content of that communication been voluntarily disclosed to a third party such that the sender may no longer claim to have—or at least may reasonably claim to have—an expectation of privacy in it?"

The court found that Fourth Amendment protections do in fact extend to text messages, finding them analogous to emails or letters. The text messages are sent via the service but the contents are not needed for any business purpose. The court concluded that Love did have "a reasonable expectation of privacy in the contents of the text messages he sent." Because of this "the State was prohibited from compelling Metro PCS to turn over appellant's content-based communications without first obtaining a warrant supported by probable cause."

The court further found that the government could not rely on good faith because one of the statutory sections that the appellant relied on only applied in instances where a warrant was obtained. The court further concluded that text messages were a central part of the government's case and therefore the error in admitting them was not harmless. The court then reversed the case.

The State has since asked the court to reconsider its ruling stating that the officers were using good faith and relying on what the law was at the time the search was conducted. The Court of Criminal Appeals has not yet ruled on this motion.

About the Author

Doug Murphy

Doug Murphy is one of only two Texas lawyers Board Certified in Criminal Law by the Texas Board of Legal Specialization, and also in DWI Defense by the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization.


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