           IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                      )
                                          )
                    Respondent,           )      No. 87663-1
                                          )
      v.                                  )      EnBanc
                                          )
SHAWN DANIEL HINTON,                      )
                                          )
                     Appellant.           )      Filed    FEB 2 7 2014
________________________ )
       GONZALEZ, J.-We consider whether a text message conversation was "a

private affair[ ]" protected from a warrantless search by article I, section 7 of our state

constitution. A police detective read text messages on a cell phone police seized from

Daniel Lee, who had been arrested for possession of heroin. Among other things, the

detective read an incoming text message from Shawn Hinton, responded to it posing

as Lee, and arranged a drug deal. Hinton was consequently arrested and charged with

attempted possession of heroin. Hinton contends that the detective's conduct violated

his rights under article I, section 7 and the Fourth Amendment.
State v. Hinton, No. 87663-1


       We agree that Hinton's text message conversation was a private affair protected

by the state constitution from warrantless intrusion. We reverse both the Court of

Appeals' decision and Hinton's conviction.

                                        BACKGROUND

       City of 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. Detective Sawyer looked through the iPhone for about 5 or 10 minutes and

saw a text message from a contact identified as "Z-Jon." 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 to sell him heroin. When

Jonathan Roden arrived for the transaction, he was arrested. 1

       Detective Sawyer booked Roden into jail and heard the iPhone signal receipt of

a new text message. Detective Sawyer read the text message from "Z-Shawn

Hinton," which read, "'Hey, what's up dog? Can you call me? I need to talk to

you."' Verbatim Report of Proceedings (Apr. 29, 2010) at 22, 13. Sawyer again

posed as Lee, responded to the message, arranged another drug transaction, and

arrested Hinton when he arrived at the meeting location.




1
 Roden claims in a separate case before this court that the detective's actions violated
Washington's privacy act. State v. Roden, No. 87669-0 (Wash. Feb. 27, 2014).


                                                 2
State v. Hinton, No. 87663-1


       Hinton was charged with attempted possession of heroin. He moved to

suppress the evidence obtained from the iPhone, arguing that the detective's conduct

violated article I, section 7 of the Washington State Constitution, the Fourth

Amendment to the United States Constitution, and the Washington privacy act. The

trial court denied the suppression motion and found Hinton guilty on stipulated facts.

Hinton appealed and argued the constitutional issues. The Court of Appeals affirmed.

State v. Hinton, 169 Wn. App. 28, 280 P.3d 476 (2012). We granted Hinton's petition

for review to decide whether the detective's conduct violated the state or federal

constitutions. State v. Hinton, 175 Wn.2d 1022, 291 P.3d 253 (2012).

                                STANDARD OF REVIEW

       This Court reviews a trial court's legal conclusions on a motion to suppress de

novo. State v. Schultz, 170 Wn.2d 746, 753, 28 P.3d 484 (2011) (citing State v.

Smith,165 Wn.2d 511, 516, 199 P.3d 386 (2009)).

                                       ANALYSIS

       Whether individuals have an expectation of privacy in the content of their text

messages under state law is an issue of first impression in Washington. Similarly,

whether federal law protects the content of text messages has not been settled in

federal courts. In City of Ontario v. Quon, 560 U.S. 746, 130 S. Ct. 2619, 177 L. Ed.

2d 216 (2010), the United States Supreme Court assumed, without deciding, that

citizens do have a reasonable expectation of privacy in their text messages, but upheld

a police department's review of an officer's text messages as reasonable under the


                                            3
State v. Hinton, No. 87663-1


Fourth Amendment. Several lower courts have held that people have an expectation

of privacy under the Fourth Amendment in the content stored on their cell phones,

including text messages. See United States v. Zavala, 541 F.3d 562, 577 (5th Cir.

2008); United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007); United States v.

Davis, 787 F. Supp. 2d 1165, 1170 (D. Or. 2011); United States v. Quintana, 594 F.

Supp. 2d 1291, 1299 (M.D. Fla. 2009). Other courts have found a privacy interest in

text messages stored by a service provider. See Missouri v. Clampitt, 364 S.W.3d

605, 611 (Mo. Ct. App. 2012); State v. Bone, 12-34 (La. App. 5 Cir. 09/11/12); 107

So. 3d 49,63-67. Fewer courts have addressed the privacy interests of a sender when

police access a sender's text messages on a recipient's device. Compare State v.

Patino, No. P1-10-1155A, slip op. (R.I. Super. Ct. Sept. 4, 2012) (finding sender had

reasonable expectation of privacy in sent text messages accessed by police during

search of recipient's cell phone), with Fetsch v. City ofRoseburg, 2012 WL 6742665

(D. Or. Dec. 31, 2012) (finding sender had no reasonable expectation of privacy in

text messages once sent to a third party). We do not reach the Fourth Amendment

inquiry as we resolve this case under our state constitution, which "'clearly recognizes

an individual's right to privacy with no express limitations'." State v. Young, 123

Wn.2d 173, 180, 867 P.2d 593 (1994) (quoting State v. Simpson, 95 Wn.2d 170, 178,

622 P.2d 1199 (1980)).

        When presented with arguments under both the state and federal constitutions,

we start with the state constitution. State v. Athan, 160 Wn.2d 354, 365, 158 P.3d 27


                                            4
State v. Hinton, No. 87663-1


(2007) (citing State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004)). It is well

established that article I, section 7 is qualitatively different from the Fourth

Amendment and provides greater protections. ld.; State v. O'Neill, 148 Wn.2d 564,

584, 62 P.3d 489 (2003); State v. Jackson, 150 Wn.2d 251, 259, 76 P.3d 217 (2003);

see also State v. Gunwall, 106 Wn.2d 54, 720 P .2d 808 (1986). Article I, section 7 "is

grounded in a broad right to privacy" and protects citizens from governmental

intrusion into their private affairs without the authority of law. State v. Chacon

Arreola, 176 Wn.2d 284, 291, 290 P.3d 983 (2012) (citing State v. Buelna Valdez, 167

Wn.2d 761,772,224 P.3d 751 (2009)).

       The private affairs inquiry is broader than the Fourth Amendment's reasonable

expectation of privacy inquiry. Young, 123 Wn.2d at 181. Under the Fourth

Amendment, a search occurs if the government intrudes upon a subjective and

reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351-52, 88 S.

Ct. 507, 19 L. Ed. 2d 576 (1967). Under article I, section 7 a search occurs when the

government disturbs "those privacy interests which citizens of this state have held,

and should be entitled to hold, safe from governmental trespass absent a warrant."

State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984) (emphasis added). The

"authority of law" required by article I, section 7 is a valid warrant unless the State

shows that a search or seizure falls within one of the jealously guarded and carefully

drawn exceptions to the warrant requirement. State v. Miles, 160 Wn.2d 236, 244,

156 P.3d 864 (2007); State v. Rife, 133 Wn.2d 140, 150-51,943 P.2d 266 (1997).


                                              5
State v. Hinton, No.   87663~1




Here, the State does not argue that there was an exception but rather that the text

message communications were not "private affairs" under our constitution.

       To determine whether governmental conduct intrudes on a private affair, we

look at the "nature and extent of the information which may be obtained as a result of

the government conduct" and at the historical treatment of the interest asserted.

Miles, 160 Wn.2d at 244 (citing State v. McKinney, 148 Wn.2d 20, 29, 60 P.3d 46

(2002)); see also, e.g., State v. Jorden, 160 Wn.2d 121, 156 P.3d 893 (2007) (finding

random, suspicionless searches of a motel guest registry unconstitutional because

those searches may provide "'intimate details about a person's activities and

associations"' (quoting McKinney, 148 Wn.2d at 30 n.2); McKinney, 148 Wn.2d at 30

(finding no privacy interest in department of licensing records because they do not

"reveal intimate details of the defendants' lives, their activities, or the identity of their

friends or political and business associates"). 2

        Viewing the contents of people's text messages exposes a "wealth of detail

about [a person's] familial, political, professional, religious, and sexual associations."

United States v. Jones,_ U.S._, 132 S. Ct. 945, 955, 181 L. Ed. 2d 911 (2012)

(Sotomayor, J., concurring) (discussing GPS (global positioning system) monitoring).

2
  Generally, article I, section 7 rights may be enforced by exclusion of evidence only at the
instance of one whose own privacy rights were infringed by government action. See State v.
Goucher, 124 Wn.2d 778, 788, 881 P.2d 210 (1994). Our analysis therefore begins with the
question of whether the State disturbed Hinton's private affairs. See, e.g., Jorden, 160 Wn.2d at
125~27. In this case, that standing analysis basically duplicates the substantive article I, section 7
analysis discussed below. Simply put, Hinton had standing to challenge the search of Lee's
phone if the search disturbed a privacy interest he had in his text messages toLee.



                                                  6
State v. Hinton, No. 87663-1


Text messages can encompass the same intimate subjects as phone calls, sealed

letters, and other traditional forms of communication that have historically been

strongly protected under Washington law. Although text message technology

rendered Hinton's communication to Lee more vulnerable to invasion, technological

advancements do not extinguish privacy interests that Washington citizens are entitled

to hold. The right to privacy under the state constitution is not confined to "a

'protected places' analysis," or "to the subjective privacy expectations of modern

citizens who, due to well publicized advances in surveillance technology, are learning

to expect diminished privacy in many aspects of their lives." Myrick, 102 Wn.2d at

513, 511. We find that the officer's conduct invaded Hinton's private affairs and was

not justified by any authority of law offered by the State.

       The Court of Appeals relied on State v. Wojtyna, 70 Wn. App. 689, 855 P.2d

315 (1993), where the court held that Wojtyna's phone number, displayed on a pager,

was not a private affair protected under the state constitution. The court recognized

that telephonic and electronic communications are strongly protected under

Washington law, but found that situation different because "all that was learned from

the pager was the telephone number of one party, the party dialing." Id. at 695

(emphasis added). In contrast, the nature and extent of information exchanged during

a text messaging conversation can involve the same intimate details shared during

personal phone calls. Sophisticated text messaging technology enables "[l]ayered

interpersonal communication[s]" that reveal "intimate ... thoughts and emotions to


                                            7
State v. Hinton, No. 87663-1


those who are expected to guard them from publication." Patino, slip op. at 83, 70.

Text messaging is an increasingly common mode of personal communication. Br. of

Amicus Curiae Elec. Frontier Found. at 6 (noting statistic that users who text sent or

received an average of 41.5 messages per day (citing AARON SMITH, PEW RESEARCH

CTR., AMERICANS AND TEXT MESSAGING (Sept. 19, 2011), available at

http://www.pewinternet.org/20 11/09/19/americans-and-text-messaging/)). Text

message use is expected to rise given that 95 percent ofyoung adults, ages 18-29, use

text messaging. SMITH, supra, at 3.

       Many courts, in finding a legitimate expectation of privacy in the contents of

one's cell phone, have recognized the private nature of text messages. See Zavala,

541 F.3d at 577 (finding that "cell phones contain a wealth of private information,

including ... text messages"); Finley, 477 F.3d at 259; Davis, 787 F. Supp. 2d at

1170; United States v. Gomez, 807 F. Supp. 2d 1134, 1140 (S.D. Fla. 2011);

Quintana, 594 F. Supp. 2d at 1299; State v. Smith, 124 Ohio St. 3d 163, 169, 2009-

0hio-6426, 920 N.E.2d 949 (2009); cf Quon, 560 U.S. at 760 (noting that text

messaging communications are "so pervasive that some persons may consider them to

be essential means or necessary instruments for self-expression, even self-

identification"). Despite the fact that a cell phone is carried on a person in public, text

messages often contain sensitive personal information about an individual's

associations, activities, and movements. Moreover, individuals closely associate with

and identify themselves by their cell phone numbers, such that the possibility that


                                             8
State v. Hinton, No. 87663-1


someone else will possess an individual's phone is "unreflective of contemporary cell

phone usage." Patino, slip op. at 70.

       The historical treatment of phone calls and electronic communications supports

finding that text messages are private affairs. In Gunwall, we noted Washington's

"long history of extending strong protections to telephonic and other electronic

communications." 106 Wn.2d at 66. We detailed the history of statutory protection

for telegrams, which was rooted in the 1881 Code, adopted before statehood. Id.

Washington's privacy act, chapter 9.73 RCW, which prohibits anyone not operating

under a court order from intercepting or recording certain private communications
                                                                                    ,,

without the consent of all parties, is one of the most restrictive surveillance laws ever

promulgated. State v. Roden, No. 87669-0, slip op. at 3 (Wash. Feb. 27, 2014) (citing

State v. Faford, 128 Wn.2d 476, 481, 910 P.2d 447 (1996)). "In balancing the

legitimate needs of law enforcement to obtain information in criminal investigations

against the privacy interests of individuals, the Washington [privacy act], unlike

similar statutes in· ... other states, tips the balance in favor of individual privacy at the

expense oflaw enforcement's ability to gather evidence without a warrant." State v.

Christensen, 153 Wn.2d 186, 199, 102 P.3d 789 (2004). In fact, "[i]ntercepting or

recording telephone calls violates the privacy act except under narrow circumstances,

and we will generally presume that conversations between two parties are intended to

be private." State v. Modica, 164 Wn.2d 83, 186 P.3d 1062 (2008).




                                              9
State v. Hinton, No. 87663-1


       Our legislature used sweeping language to protect personal conversations from

intrusion. See RCW 9.73.030(1)(a) (protecting "[p]rivate communication transmitted

by telephone, telegraph, radio, or other device" (emphasis added)). Based on that

broad language, this court has consistently extended statutory privacy in the context of

new communications technology, despite suggestions that we should reduce the

protections because ofthe possibility of intrusion. See Faford, 128 Wn.2d 476

(cordless phone); Christensen, 153 Wn.2d 186 (same); State v. Townsend, 147 Wn.2d

666, 674, 57 P.3d 255 (2002) (e-mails). In State v. Roden, stemming from the same

set of facts that gave rise to Hinton's appeal, we determined that the privacy act

protected Roden's text messages from interception without consent or a court order.

Roden, slip op. at 14. We have "repeatedly emphasized in considering constitutional

privacy protections [that] the mere possibility that intrusion on otherwise private

activities is technologically feasible will not strip citizens of their privacy rights."

Faford, 128 Wn.2d at 485 (citing Young, 123 Wn.2d at 186; Myrick, 102 Wn.2d at

513-14). Even under the Fourth Amendment, the United States Supreme Court found

that an individual making a phone call in a telephone booth had a reasonable

expectation of privacy even though he made the calls from a place where he could

have been seen. Katz, 389 U.S. 347.

         The Court of Appeals extended rules applied to letters directly to text

messages, concluding that any privacy interest in a text message is lost when it is

delivered to the recipient. See Hinton, 169 Wn. App. at 43 (citing United States v.


                                              10
State v. Hinton, No. 87663-1


King, 55 F.3d 1193, 1195-96 (6th Cir.1995) (holding that where King voluntarily

mailed letters to his wife, his expectation of privacy terminated. upon delivery to her)).

While text messages have much in common with phone calls and letters, they are a

unique form of communication, and we will not strain to apply analogies where they

do not fit. Courts have recognized that an individual maintains an expectation of

privacy in sealed le.tters despite subjecting them to vulnerability in transit. See Ex

parte Jackson, 96 U.S. (6 Otto) 727, 24 L. Ed. 877 (1877). But unlike letters, which

are generally delivered to the home where they remain protected from intrusion, text

messages are delivered to a recipient's cell phone instantaneously and remain

susceptible to exposure because of a cell phone's mobility. Just as subjecting a letter

to potential interception while in transit does not extinguish a sender's privacy interest

in its contents, neither does subjecting a text communication to the possibility of

exposure on someone else's phone. We find that Hinton retained a privacy interest in

the text messages he sent, which were delivered to Lee's phone but never received by

Lee.

       The Court of Appeals erred by finding that Hinton lost his privacy interest in

the text message communications because he sent them to a device over which he had

no control. Given the realities of modern life, the mere fact that an individual shares ·

information with another party and does not control the area from which that

information is accessed does not place it outside the realm of article I, section 7' s

protection. In Jorden, 160 Wn.2d 121, we held that the practice of checking names in


                                             11
State v. Hinton, No.   87663~1



a motel registry for outstanding warrants without individualized or particularized

suspicion violated a defendant's privacy under article I, section 7. Because

information contained in a motel registry is personal and sensitive, it is a private affair

notwithstanding the fact that the area searched belongs to the motel and that an

individual has no control or possessory interest in a motel's registry. See id. at   129~


30. Similarly, notwithstanding the fact that an individual voluntarily shares financial

information with his bank and can assert no property or possessory interests in the

bank's files, banking records are protected by the state constitution because they "may

disclose what the citizen buys [and] what political, recreational, and religious

organizations a citizen supports." Miles, 160 Wn.2d at 246. This court has

consistently declined to require individuals to veil their affairs in secrecy and avoid

sharing information in ways that have become an ordinary part of life. See, e.g.,

Gunwall, 106 Wn.2d at 67 (finding that '"[a] telephone is a necessary component of

modern life"' and "'[t]he concomitant disclosure"' to the telephone company of the

numbers dialed by the telephone subscriber "'does not alter the caller's expectation of

privacy'" (quoting People v. Sporleder, 666 P.2d 135, 141 (Colo. 1983))). Hinton

certainly assumed the risk that Lee would betray him to the police, but Lee did not

consent to the officer's conduct. The risk that one to whom we impart private

information will disclose it is a risk we "'necessarily assume whenever we speak."'

Hoffa v. United States, 385 U.S. 293, 303, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966)

(quoting Lopez v. United States, 373 U.S. 427, 465, 83 S. Ct. 1381, 10 L. Ed. 2d 462


                                             12

                                                                    fl'
State v. Hinton, No. 87663-1


(1963)); see also, e.g., State v. Corliss, 123 Wn.2d 656, 870 P.2d 317 (1994) (holding

petitioner's state constitutional privacy rights were not violated when an informant

consented to allow police officers to overhear his conversations with petitioner). But

that risk should not be automatically transposed into an assumed risk of intrusion by

the government. See, e.g., State v. Boland, 115 Wn.2d 571, 581, 800 P.2d 1112

(1990) (finding that the "proper and regulated collection of garbage" is "necessary to

the proper functioning of modern society" and exposure of garbage to a licensed trash

collector "does not also infer an expectation of governmental intrusion").

       This incidental exposure of private information in the course of everyday life is

distinct from other kinds of voluntary disclosure that extinguish privacy interests

under article I, section 7. A defendant who leaves a paper bag on a street corner-

where it lies in plain view on premises belonging to a stranger-certainly waives his

privacy interest by voluntarily exposing it to the public. State v. Loran, 62 Wn.2d 4,

380 P.2d 733 (1963). Likewise, where an individual voluntarily discloses information

to a stranger, he cannot claim a privacy interest. See, e.g., Goucher, 124 Wn.2d at

784; State v. Hastings, 119 Wn.2d 229, 235-36, 830 P.2d 658 (1992) (finding no

violation of private affairs because "the decision to allow strangers to enter was made

absent coercion by the police and with full knowledge of the illegal activity occurring

within"). But like an individual who places his trash on the curb for routine collection

by a trash collector, or one who dials telephone numbers from his home phone, or one

who shares personal information with a bank or motel, one who has a conversation


                                           13
State v. Hinton, No. 87663-1


with a la10wn associate through personal text messaging exposes some information

but does not expect governmental intrusion.

       We are not persuaded that Hinton voluntarily exposed the text messages in a

way that extinguished his privacy interest in the conversation. We reject the State's

argument that the text messages were in plain view. The observation of that which is

in plain view does not constitute a search because voluntary exposure to the public

extinguishes any privacy interest. See, e.g., Loran, 62 Wn.2d at 5. However, here

only one nonincriminating message was arguably in the detective's plain view. This

case does not ask whether viewing a single isolated message that appeared on the

screen violated Hinton's rights, and describing the subsequent text messages as "in

plain view" denies the scope and extent ofthe detective's intrusive conduct, which

involved operating the phone and posing as Lee to send text messages back and forth

with Hinton.

       Cases where we upheld other police ruses do not condone the detective's

conduct here. The State compares this situation to Goucher, 124 Wn.2d 778, where

an officer answered a telephone call from Goucher during a lawful search of a

residence. When Goucher asked to speak to Luis, the detective told him that Luis had

gone on a run but that he (the detective) could "handl[e] business." Id. at 781.

Because Goucher voluntarily chose to continue the conversation and "expose[ ] his

desire to buy drugs to someone he did not know," we found that the communication

was not private. Id. at 784. Amicus curiae Washington Association of Prosecuting


                                           14
State v. Hinton, No. 87663-1


Attorneys (WAP A) cites A than, 160 Wn.2d 3 54, where police deceived Athan by

convincing him to send an envelope by mail to a fictitious law firm invented by

police. Br. of Amicus Curiae WAP A at 7-8. We found that when A than voluntarily

placed the envelope in the mail, he lost any privacy interest in his saliva on the

envelope flap. Athan, 160 Wn.2d at 387. We upheld both ofthese practices because

the defendants iri those cases voluntarily disClosed information to strangers and

assumed the risk of being "'deceived as to the identity of one with whom one deals,"'

a risk that is "'inherent in the conditions of human society."' Hoffa, 385 U.S. at 303

(quoting Lopez, 373 U.S. at 465).

       But here, Detective Sawyer essentially posed as Lee and sent text messages to

Hinton from Lee's cell phone. Unlike a phone call, where a caller hears the

recipient's voice and has the opportunity to detect deception, there was no indication

that anyone other than Lee possessed the phone, and Hinton reasonably believed he

was disclosing information to his known contact. The disclosure of information to a

stranger, Detective Sawyer, cannot be considered voluntary like Goucher's choice to

speak with someone he did not lmow who claimed to be "handling business" or

Athan's choice to engage in business with an unlmownlaw firm that was actually

fictitious. Law enforcement is certainly permitted to use some deception, but

"[e]xperience should teach us to be most on our guard to protect liberty when the

Government's purposes are beneficent. ... The greatest dangers to liberty lurk in

insidious encroachment by men of zeal, well-meaning but without understanding."


                                            15
State v. Hinton, No. 87663-1


Chandler v. Miller, 520 U.S. 305, 322, 117 S. Ct. 1295, 137 L. Ed. 2d 513 (1997)

(quoting Olmstead v. United States, 277 U.S. 438, 479, 48 S. Ct. 564, 72 L. Ed. 944

(1928) (Brandeis, J., dissenting)). Forcing citizens to assume the risk that the

government will confiscate and browse their associates' cell phones tips the balance

too far in favor of law enforcement at the expense of the right to privacy.

                                       CONCLUSION

         The state constitution "'clearly recognizes an individuals' right to privacy with

no express limitations'." Young, 123 Wn.2d at 180 (quoting Simpson, 95 Wn.2d at

178). Protecting the privacy of personal communications is essential for freedom of

association and expression. See Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring)

("Awareness that the Government may be watching chills associational and

expressive freedoms."). This court noted in Rhinehart v. Seattle Times Co. that the

right to privacy has been described as "'the most comprehensive of rights,"'

protecting citizens "'in their beliefs, their thoughts, their emotions, and their

sensations."' 98 Wn.2d 226, 240, 242, 654 P.2d 673 (1982) (quoting Olmstead, 277

U.S. at 478 (Brandeis, J., dissenting)). The use of text messaging for raw and

immediate communications about private subjects is widespread and growing. To

forgo sending text messages or to limit the use of text messaging to completely

inconsequential matters is not only "unpalatable, [but] untenable, and disadvantageous

relative to participating within our technologically dependent culture." Patino, slip op.

at 77.


                                              16
State v. Hinton, No. 87663-1


       We reverse the Court of Appeals and vacate the conviction without prejudice.

Hinton's private affairs were disturbed by the warrantless search of Lee's cell phone.

Article I, section 7 protects Washington citizens from governmental intrusion into

affairs that they should be entitled to hold safe from goverrunental trespass, regardless

of technological advancements.




                                            17
State v. Hinton, No. 87663-1




WE CONCUR:




     ......--·
        ........... . -........
              -· ~
                                  ,
                                  .....,

                                                (




                                           18
 State v. Hinton (,)hawn)
 Concurrence by C. Johnson, J.




                                      No. 87663-1

       C. JOHNSON, J. (concurring)-The dissent criticizes the majority's analysis

 and conclusion recognizing the defendant's standing to raise the constitutional

. violation. In doing so, however, the dissent disregards our cases defining the scope

 of article I, section 7. Our article I, section 7 cases not only support but compel the

 majority's conclusion that a citizen's constitutional private affairs may be invaded

 by a warrantless search of another's cell phone. I write separately to point out the

 dissent's disregard of our article I, section 7 cases establishing the scope of a

 person's private affairs.

        To have standing, a defendant must demonstrate a personal privacy interest

 in the place or item searched. Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469,

 142 L. Ed. 2d 373 (1998); State v. Carter, 127 Wn.2d 836, 841,904 P.2d 290

 ( 1995). There can be no debate that Daniel Lee would have a privacy interest in his

 own phone. An individual's cell phone often contains a wealth of private
State v. Hinton (Shawn), No. 87663-1
(C. Johnson, J., concurring)


infornmtion about the owner, including e-mails, text messages, call histories, and

a.ddress books to name a few. United States v. Zavala, 541 F.3d 562, 577 (5th Cir.

2008). "Cell phone and text message communications are so pervasive that some

persons may consider them to be essential means or necessary instruments for self-

expression, even self-identification." City of Ontario v. Quon, 560 U.S. 746, 759,

130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010). Thus a cell phone owner such as Lee

has standing to challenge a search of his phone. But Shawn Hinton, unlike Lee,

does not have a privacy interest in Lee's phone generally because it is not Hinton's

e-mail, address book, calendar, or call history on Lee's phone.

       The inquiry in this case, however, is narrower: we must determine whether

an individual has a privacy interest in the actual text message received by and

stored on another individual's cell phone. Information transmitted through text

messages has the potential to implicate highly personal matters. Contrary to the

dissent's conclusion, a person does not lose all privacy interest in text messages

merely because they are disclosed to an intended recipient, who could potentially

disclose it to others. Dissent at 8-12. Rather, as the majority correctly recognizes,

while there may be a risk that the person to whom we impart private information

could disclose it, we do not assume the risk that the government will conduct a




                                           2
State v. Hinton (Shawn), No. 87663-1
(C. Johnson, J., concurring)



warrantless intrusion into a person's private affairs. See majority at 12-13. This is

a rule well established by our article I, section 7 cases. 1

       In State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), we established a

clear distinction in defining the scope of a person's private affairs under article I,

section 7. Gunwall dealt with whether a warrant was required to seize and search

telephone records from the telephone company who, for business purposes,

compiled those records. In concluding that a warrant was required, we adapted the

reasoning from other state cases:

              "A telephone subscriber ... has an actual expectation that the
       dialing of telephone numbers from a home telephone will be free from
       governmental intrusion .... The concomitant disclosure to the
       telephone conipany, for internal business purposes, of the numbers
       dialed by the telephone subscriber does not alter the caller's
       expectation of privacy and transpose it into an assumed risk of
       disclosure to the government."

Gunwall, 106 Wn.2d at 67 (first alteration in original) (quoting People v.

Sporleder, 666 P.2d 135, 141 (Colo. 1983)). We concluded Gunwall holding that

absent a warrant, the police "unreasonably intruded into [the defendant's] private

affairs." Gunwall, 106 Wn.2d at 68.


       1
          The dissent also points out that a person's private affairs do not include
information voluntarily exposed to the general public. Dissent at 10 (quoting State
v. Goucher, 124 Wn.2d 778, 784, 881 P.2d 210 (1994)). While this may be correct,
it is irrelevant to this case because Hinton did not expose his information to the
public generally. The question presented here is whether the police illegally
accessed the text message without a warrant.

                                             3
State v. Hinton (Shawn), No. 87663-1
(C. Johnson, J., concurring)


       Further, in State v. Boland, 115 Wn.2d 571, 800 P.2d 1112 (1990), we

determined the scope of an individual's private affairs with regard to garbage. We

noted that while it might be unreasonable to expect that after placing a garbage can

on the curb for collection "children, scavengers, or snoops will not sift through

one's garbage," it is reasonable to believe the garbage we place in our trash cans

will be protected from warrantless government intrusion. Boland, 115 Wn.2d at

·'578. "'People reasonably believe that police will not indiscriminately rummage

through their trash bags to discover their personal effects."' Boland, 115 Wn.2d at

578 (quoting State v. Tanaka, 67 Haw. 658, 662, 701 P.2d 1274 (1985)).

       These cases, along with others defining the scope of a person's private

affairs, 2 teach us that it is the determination of a constitutionally protectable

interest, or private affair, that gives rise to the ability to challenge the warrantless

search by the government. Thus, a telephone company or other provider or the

trash collector's "possession" of the information seized does not eliminate a

person's constitutional protecti~ns from government intrusion into that

information.




--------------
       2
           See also State v. Miles, 160 Wn.2d 236, 156 P.3d 864 (2007) (privacy interest in
banking records); State v. Jorden, 160 Wn.2d 121, 156 P.3d 893 (2007) (privacy interest in motel
registry).


                                               4
State v. Hinton (Shawn), No. 87663-1
(C. Johnson, J., concurring)


       Likewise, in transmitting his text messages to Lee, Hinton could reasonably

believe Lee would receive and read those messages, but this does not lead to the

belief that the government would acquire this information absent a warrant. His

disclosure to Lee did not transform the scope of his private affairs into "an

assumed risk of disclosure." As a result, he retained a privacy interest in the

information communicated through his text message.

       Further, considering the wealth of personal and private information that is

potentially stored on a cell phone, we should continue to recognize a rule that does

not incentivize warrantless searches of cell phones. The dissent's holding,

however, would create such an incentive. If, under the dissent's reading, Hinton

had no privacy interest in the text message-and thus no standing to challenge the

search of the text message-the police would suffer no consequences for the

warrantless search. Allowing for such a situation would diminish our constitutional

private affairs recognized under article I, section 7.

       The sender of a text message assumes a limited risk that the recipient may

voluntarily expose that mess.age to a third party, but under our cases, the sender

does not assume the risk that the police will search the phone in a manner that

violates the phone owner's rights. Article I, section 7 establishes protection against

such warrantless intrusion, and the majority correctly recognizes this principle.



                                            5
State v. Hinton (Shawn), No. 87663-1
(C. Johnson, J., concurring)



Contrary to the dissent's view, it is the determination that a private affair has been

invaded that gives rise to the ability to challenge the search.

       To illustrate, the police may seize an individual's phone pursuant to a lawful

search incident to arrest to prevent the destruction of evidence, State v. Valdez, 167

Wn.2d 761, 776, 224 P.3d 751 (2009), but may search the phone (including text

messages) only with a warrant, a valid exception to the warrant requirement, or the

,phone owner's express consent. In the absence of express consent from the phone

owner, however, the sender of a text message should be allowed to stand in the

shoes of the phone owner for purposes of challenging the search of the phone

through which the text message was viewed.

       In this case, there is no evidence that Lee consented to the search of his

phone. Without a warrant, and without conforming to an exception to the warrant

requirement, Detective Sawyer searched through Lee's phone and responded to

text messages posing as Lee. Because there is no evidence Lee consented to the

search, Hinton should have standing to challenge it. Likewise, because the phone

was searched without a warrant, an exception, or consent, any evidence derived

from the   search~   including Hinton's responses to Detective Sawyer's text messages

and his appearance at the drug transaction, is fruit of the poisonous tree, and the

conviction must be overturned.



                                            6
State v. Hinton (Shawn), No. 87663-1
(C. Johnson, J., concurring)


      Respectfully, I concur.




                                       7
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.




                                    No. 87663-1

       J.M. JOHNSON, J. (dissenting)-In this case, the majority goes too far,

failing to distinguish between the extent of article I, section 7 protections for

a search of one's own cell phone and a search of a cell phone owned by a third

party. I acknowledge that article I, section 7 protections are robust, extending

further than the Fourth Amendment in many contexts. Nevertheless, these

rights are personal and therefore may not be vicariously asserted. State v.

Goucher, 124 Wn.2d 778, 787, 881 P.2d 210 (1994) (citing State v. Foulkes,

63 Wn. App. 643, 647, 821 P.2d 77 (1991)). While the constitutionality of a

warrantless search of one's own cell phone is certainly in need of clarification,

it is a question for another day.

        We are asked to consider only the narrow question of whether a person

has a constitutionally protected privacy right in a text message received on a

third party's cell phone. Because Hinton did not retain a privacy interest in

text messages he sent that were delivered to a third party's cell phone, he does

                                           -1-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.



not have the requisite standing to challenge the government action in this case.

I, therefore, dissent.

                             FACTS AND PROCEDURAL HISTORY

          A thorough recitation of the facts and procedural history is necessary to

illustrate precisely what is-and is not-before this court. When Detective

Kevin Sawyer arrived for his shift on November 3, 2009, he came into

possession of Daniel Lee's iPhone. 1 Lee had been arrested on drug charges

and the phone had been ringing frequently. Verbatim Report of Proceedings

(VRP) (Apr. 29, 2010) at 4-5. The record does not indicate the circumstances

under which the cell phone was seized. At the suppression hearing, Detective

Sawyer testified about the functionality of an iPhone. Specifically, he noted

that if an iPhone is turned on, a shortened version of any text message received

appears directly on the screen. A person does not need to manipulate the

phone or push any buttons to read such a text message. !d. at 6-7.

           The cell phone was sitting on the passenger seat of Detective Sawyer's

vehicle when he heard a tone indicating that a new message had been received.

!d. at 22. He did not have to push any buttons or access the cell phone to read

the message. The text message simply appeared on the iPhone screen. Id. at


 1
     Daniel Lee is not a party to this action.
                                                 -2-
State v. Hinton, No. 87663-1
Dissent by J .M. Johnson, J.



13. Detective Sawyer picked up the cell phone to examine it and saw a text

message from someone listed as "Z-Shawn Hinton." Id. at 22. This message

read, '"Hey, what's up dog? Can you call me? I need to talk to you."' Id.

Detective Sawyer responded, "'Can't now. What's up?"' Id. The iPhone

then indicated a response from "Z-Shawn Hinton," which read, "'I need to

talk to you about business. Please call when you get a chance."' I d. at 23-24.

Detective Sawyer then wrote back, "'I'm about to drop off my last."' I d. at

24. Hinton responded, "'Please save me a ball. Please? I need it. I'm sick. "' 2

I d. at 25. They set up a purported transaction for the purchase of heroin.

When the two met, Hinton was placed under arrest. I d. at 15. Detective

Sawyer called the phone number listed in Lee's iPhone as "Z-Shawn Hinton"

and a cell phone on Hinton's person rang in response. Id. at 23-26.

       By information, the Cowlitz County prosecutor charged Hinton with

one count of attempted possession of heroin. Clerk's Papers (CP) at 1. Hinton

then filed a motion to suppress. The court concluded that Hinton did not have

automatic or general standing to contest the search of Lee's iPhone. VRP

(Apr. 29, 2010) at 61. The court further held that he did not have a privacy


2
  A "ball" is a drug weight. It is about 3.54 grams. VRP (Apr. 29, 2010) at 10. "Sick" is
a drug term for when a user is coming off a high and looking to obtain more drugs. !d. at
8.
                                              -3-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.



interest in the text messages sent to Lee. !d. at 63. The motion to suppress

was accordingly denied. !d.

       Following entry of findings of fact and conclusions of law, Hinton

stipulated to facts sufficient to convict and was found guilty. CP at 34-36. He

was then sentenced within the standard range and filed a timely notice of

appeal. CP at 38-49, 50. Division Two of the Court of Appeals held that

neither article I, section 7 of the Washington State Constitution nor the Fourth

Amendment to the United States Constitution protects Hinton's text messages

on the recipient's cell phone. The court accordingly affirmed the superior

court's ruling denying Hinton's motion to suppress. State v. Hinton, 169 Wn.

App. 28, 45, 280 P.3d 476 (2012). Hinton then filed a petition for review,

which was granted. State v. Hinton, 175 Wn.2d 1022,291 P.3d 253 (2012).

                                   ANALYSIS

       This is not the first time that this court has failed to acknowledge that

article I, section 7 rights are nontransferable. In State v. Ibarra-Cisneros, 172

Wn.2d 880, 885-86, 263 P.3d 591 (2011), this court reversed the petitioner's

conviction for possession of cocaine based on the unlawful search of his

brother's home. The petitioner called his brother's cell phone after his brother

had been arrested and the cell phone was answered by a drug enforcement

                                          -4-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.



administration agent who was working with the police. The agent told Ibarra-

Cisneros that his brother was in the bathroom. The two had a heated verbal

exchange and agreed to meet in person. After Ibarra-Cisneros got out of his

vehicle and stood beside it, officers found a freshly dropped bindle of cocaine

on the ground where he had been standing. Id. at 882. This court chose to

avoid the standing issue, instead holding that the Court of Appeals erred by

relying on the attenuation doctrine. Id. at 885. The court's decision to avoid

the standing issue granted Ibarra-Cisneros the benefit of constitutional

protection that should have been reserved for his brother-the owner of the

cell phone. See id. at 896 (Madsen, C.J., dissenting).

       Chief Justice Madsen's dissent in Ibarra-Cisneros is on point:

       Under a fundamental constitutional analysis, there must be a
       protectable privacy interest at stake before there can possibly be
       any constitutional violation or any need to address taint or
       suppression of evidence. When, as in this case, a record
       unequivocally shows that no such interest exists, a court should
       not conclude that evidence must be suppressed as the only fair
       thing to do. There is nothing unfair about declining to suppress
       evidence when no privacy interest has been at stake and
       consequently none has been violated.

!d. at 888-89.

        Chief Justice Madsen ultimately concluded that "Ibarra-Cisneros had

no protected privacy interest in his brother's cell phone or in any information

                                         -5-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.



stored on it." Id. at 890 (Madsen, C.J., dissenting). I agree with the Chief

Justice's analysis in that case and find it applicable to the case at hand. Here,

as in Ibarra-Cisneros, it is improper for the court to gloss over the standing

doctrine, effectively extending privacy protection to those other than the

owner of the cell phone, far beyond article I, section 7's intended scope.

       In this case, Hinton does not have standing to contest the search of

Lee's cell phone that ultimately led to his arrest. Fourth Amendment and

article I, section 7 rights are personal and therefore may not be vicariously

asserted. Goucher, 124 Wn.2d at 787 (citing Foulkes, 63 Wn. App. at 647).

       We recognize two different types of standing in the search and seizure

context. Under general standing rules:

       A defendant may challenge a search or seizure only if he or she
       has a personal Fourth Amendment privacy interest in the area
       searched or the property seized. The defendant must personally
       claim a justifiable, reasonable, or legitimate expectation of
       privacy that has been invaded by governmental action.

!d. (citations omitted).

       A defendant has automatic standing to contest a search or seizure of

contraband under article I, section 7 if ( 1) the charged offense involves

possession of contraband as an essential element of the offense and (2) the

defendant was in possession of the contraband at the time of the contested

                                           -6-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.




search or seizure. Id. at 787-88 (citing State v. Zakel, 119 Wn.2d 563, 568,

834 P.2d 1046 (1992)); see also State v. Simpson, 95 Wn.2d 170, 175-79,622

P.2d 1199 (1980) (lead opinion) (affirming automatic standing under article

I, section 7 of the Washington Constitution, notwithstanding the United States

Supreme Court's decision to abolish the automatic standing rule under the

Fourth Amendment in United States v. Salvucci, 448 U.S. 83, 85, 100 S. Ct.

2547, 65 L. Ed. 2d 619 (1980)); accord State v. Williams, 142 Wn.2d 17, 22-

23, 11 P.3d 714 (2000). The automatic standing doctrine is inapplicable here

because the search at issue does not involve Hinton's possession of

contraband.

       I agree with the majority's characterization that the standing analysis

and substantive article I, section 7 analyses are somewhat duplicative:

       Generally, article I, section 7 rights may be enforced by
       exclusion of evidence only at the instance of one whose own
       privacy rights were infringed by government action. Our
       analysis therefore begins with the question of whether the State
       disturbed Hinton's private affairs. In this case, that standing
       analysis basically duplicates the substantive article I, section 7
       analysis .... Simply put, Hinton had standing to challenge the
       search of Lee's phone if the search disturbed a privacy interest
       he had in his text message to Lee.

Majority at 6 n.2 (citations omitted).




                                         -7-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.




       I would hold that because the alleged search of Lee's cell phone did not

disturb a privacy interest Hinton had in the text messages he sent to Lee, he

does not have standing to challenge the government action.            I would

accordingly affirm the Court of Appeals.

A.     Automatic Standing

       Hinton does not have automatic standing because he was not in

possession of contraband at the time that the search took place. Furthermore,

Lee's cell phone was not the contraband for which he was ultimately

convicted. Thus, we must consider whether he has a "justifiable, reasonable,

or legitimate expectation of privacy" in the area searched or the property

seized. Goucher, 124 Wn.2d at 787.

B.     General Standing

       In deciding whether a particular conversation is private, we consider

the subjective intentions of the parties to the conversation, as well as their

reasonable expectations. State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384

(1996). "A communication is not private where anyone may turn out to be

the recipient of the information or the recipient may disclose the information."

!d. at 227 (citing State v. Wojtyna, 70 Wn. App. 689, 695-96, 855 P.2d 315

(1993)). '"[T]he Court consistently has held that a person has no legitimate

                                           -8-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.



expectation of privacy in information he voluntarily turns over to third

parties."' Wojtyna, 70 Wn. App. at 694 (internal quotation marks omitted)

(quoting United States v. Meriwether, 917 F.2d 955, 959 (6th Cir. 1990)).

       Although the scope of article I, section 7 protections for text messages

is an issue of first impression, this court has considered several cases that are

similar and should guide our analysis in this case. In Goucher, detectives

searched a third party's residence pursuant to a search warrant. During the

search, the telephone rang and was answered by a task force detective. An

adult male asked for Luis, and the detective told him that Luis had gone for a

run and that he was handling business until Luis returned. 124 Wn.2d at 780-

81. The caller identified himself and asked if he could come over to buy "'an

eighth,"' which the detective understood to mean an eighth of an ounce of

cocaine. Id. at 781. The two set up a purported drug transaction, and the

defendant was arrested when he showed up. Id. The defendant was charged

with one count of possessing cocaine. He filed a motion to suppress the

evidence obtained as a result of the detective answering the telephone, which

was denied. Id. His appeal was certified to this court and we considered

whether the defendant's rights were violated under article I, section 7 when




                                          -9-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.




the detective answered the third party's telephone and engaged him m

conversation. !d. at 783.

       We held that the defendant did not have the requisite standing to

challenge the scope of the third-party search. !d. at 789. We noted that '"what

is voluntarily exposed to the general public' is not considered part of a

person's private affairs." Id. at 784 (quoting State v. Young, 123 Wn.2d 173,

182, 867 P.2d 593 (1994)).

       As in Goucher, Hinton does not have standing to contest the search of

Lee's cell phone. To assert general standing, he must "personally claim a

justifiable, reasonable, or legitimate expectation of privacy that has been

invaded by governmental action."       Id. at 787.    Hinton did not have a

reasonable expectation of privacy in Lee's cell phone.        He had neither

possession nor control of the cell phone, and he did not have the right to

exclude others from using it.     Furthermore, once the text message was

delivered to the cell phone, Hinton had no control over who viewed it. Given

its functionality, a stranger could view the message simply by glancing at the

cell phone. Alternatively, the cell phone could have been in the possession of

someone other than Lee, or Lee could have simply shared the contents of the




                                         -10-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.



message with others. Hinton assumed the risk that, once sent, the message

would no longer be kept private.

       Wojtyna, 70 Wn. App. 689, a Court of Appeals, Division One case, is

also persuasive in this context. It has been favorably cited by this court in

several cases. See State v. Luther, 157 Wn.2d 63, 80, 134 P.3d 205 (2006);

State v. Townsend, 147 Wn.2d 666, 682-83, 57 P.3d 255 (2002); Goucher,

124 Wn.2d at 786. In Wojtyna, 70 Wn. App. at 691, police seized a pager

pursuant to the arrest of a cocaine dealer. Incoming calls were monitored over

the next six days. A detective called a number that was sent to the pager and

arranged a purported drug deal with Wojtyna. Wojtyna was then arrested and

charged with attempted possession of a controlled substance.          !d.   He

challenged the denial of his motion to suppress. Evaluating the case on Fourth

Amendment grounds, the Court of Appeals held that monitoring the

defendant's incoming number on a pager was not an illegal search. !d. at 694-

95.

       The court in Wojtyna noted that transmissions to pagers are less private

than phone conversations. The same logic can be applied to text messages.

The court reasoned:

       When one transmits a message to a pager, he runs the risk that
       the message will be received by whomever is in possession of
                                         -11-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.




       the pager. Unlike the phone conversation where a caller can hear
       a voice and decide whether to converse, one who sends a
       message to a pager has no external indicia that the message
       actually is received by the intended recipient. Accordingly, when
       a person sends a message to a pager, he runs the risk that either
       the owner or someone in possession of the pager will disclose the
       contents of his message. Since the actual confidentiality of a
       message to a pager is quite uncertain, we decline to protect
       appellant's misplaced trust that the message actually would reach
       the intended recipient.

Id. at 694 (quoting Meriwether, 917 F.2d at 959).

       In choosing to communicate via text message, Hinton assumed the risk

that another party with control over the cell phone would respond to the text

message.     This is an assumption of risk commensurate with choosing to

communicate with a stranger by phone and assuming that the stranger is in

fact who he says he is.

       Notably, the mere fact that the communication at issue arose from a

police ruse does not suggest that Hinton's rights were violated. In State v.

Athan, 160 Wn.2d 354, 363, 158 P.3d 27 (2007), police used a ruse to cause

Athan to send an envelope by mail to what Athan believed was a law firm but

was actually the police. His DNA (deoxyribonucleic acid) was found on the

envelope flap. We held that Athan lost any privacy interest he may have had

in his saliva when he voluntarily placed the letter in the mail. Once he sent

the letter, what was done with it was out of his control. Id. at 367-68.
                                         -12-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.



Furthermore, we noted that "[p ]ublic policy allows for a limited amount of

deceitful police conduct in order to detect and eliminate criminal activity." I d.

at 377.

       Like Athan, Hinton lost his privacy protection when he voluntarily sent

a text message to a third party's cell phone. The fact that a police ruse

encouraged him to send the messages does not change the result.

                                   CONCLUSION


       True, technological advances, particularly those that have become

pervasive in everyday life, pose challenges in the article I, section 7 arena.

Cases such as this one provide the temptation to overhaul our present

jurisprudence for a wide variety of contexts not presently before us.

Nevertheless, I am convinced that we should handle these technological

search cases incrementally, as often as possible analogizing to existing article

I, section 7 precedent. This approach has been advocated by Judge Posner of

the Seventh Circuit, noting in dicta that courts may not need to adopt wholly

distinct tests for electronic property:

                 It's not even clear that we need a rule of law specific to
          cell phones or other computers. If police are entitled to open a
          pocket diary to copy the owner's address, they should be entitled
          to turn on a cell phone to learn its number. If allowed to leaf
          through a pocket address book, ... they should be entitled to read
          the address book in a cell phone.
                                            -13-
State v. Hinton, No. 87663-1
Dissent by J.M. Johnson, J.




United States v. Flares-Lopez, 670 F.3d 803, 807 (7th Cir. 2012). I agree

wholeheartedly with this approach.

       It is unwise to make sweeping changes to existing law based on

hypothetical facts not currently before this court. This is the precise wisdom

that underlies our standing doctrine.

       Here, the majority errs by acting as though a search of a text message

viewed on a third party's cell phone is identical to a search of one's own cell

phone. The majority's approach is inconsistent with this court's article I,

section 7 jurisprudence and ignores precedent established in cases such as

Goucher.

       When Detective Sawyer viewed Hinton's text message on Lee's cell

phone and responded to it, it was not a disturbance ofHinton's private affairs.

See State v. Valdez, 167 Wn.2d 761, 772,224 P.3d 751 (2009). Hinton simply

does not have standing to contest the government action because he does not

have a "justifiable, reasonable, or legitimate expectation of privacy" in

information viewable on a third party's cell phone. Goucher, 124 Wn.2d at

787. For this reason, I dissent.




                                         -14-
State v. Hinton, No. 87663-1




                                       /
                               !l1r/J·
                               ~,c.CJ.




                                -15-
