Rhode Island court finds expectation of privacy in text messages, orders suppression for nearly all of state's evidence

In State v. Patino, P1-10-1155A (R.I. Super. Ct. 2012), the court ordered suppression of text messages sent by the defendant on a cell phone belonging to another person. The defendant had standing to challenge the search which, according to the court, was conducted in violation of the Fourth Amendment and not saved by any exception.

The case concerned the murder of the defendant's six-year-old son. The child's mother called 911 to report that her son was not breathing. An ambulance took the child to the hospital, and police remained at the home to speak to the parents. The mother took the officer through the house, and he noticed stripped beds and vomit. A cell phone in the house later made a beeping sound, and the officer picked up the phone to view the message. It was unattainable because of lack of credit, and after pressing another button, he was taken to the sent messages folder. He noticed the word "hospital" in a message and proceeded to read the entire message which read: "Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg." From the reading of this message, an investigation continued, and the case for murder against the defendant was built.

In its 190 page opinion, the court began with a standing issue. The first issue was the fact that he only occasionally stayed at the apartment where the phone was found, but the court found that this did not remove his expectation of privacy. Another issue was that the phone itself was shared, and the defendant was not the main user. As a result, the court, analyzing the phone "not as a container but as an 'access point' to potentially boundless amounts of digital information," held that the standing issue was in the text messages themselves rather than the phone in general.

Next, the court held that the defendant had a subjective and objective expectation of privacy in the text messages stored on the phone and that the possibility that someone other than the intended recipient will see the message is not enough to remove the expectation. With regard to the third-party doctrine, the court held that "the third-party doctrine is ill-suited for contemporary forms of communication and thus should not wholly defeat an individual's expectation of privacy in the contents of his or her text messages." As a result, the defendant had standing to challenge the search.

The court quickly labeled the search of the phone as unconstitutional and noted that the search of the phone was also not excused by any exception to the Fourth Amendment. The crime was not one that commonly involves cell phones nor was the cell phone an instrument that posed a danger to police. Further, the officer's continued manipulation after the beeping was objectively unreasonable and did not involve exigency. The state also argued that the incriminating message was in plain view, but the affirmative act of pressing buttons defeated the argument. Also, despite having consent to be in the apartment, it was limited to, for example, "a search for items that might have caused ... [the child's] health condition" and not to cell phone content.

As a result, the text messages were unconstitutional and subject to suppression. The messages were used to produce an extensive investigation including other cell phones, phone records from phone companies, and written confessions. This evidence was fruit of the poisonous tree and not saved by inevitable discovery or independent source.