In State v. Boman, the WA Supreme Court held that a cell phone owner who gave consent for police to search text messages also gave police the authority to use his phone to set up a “ruse” drug bust sting. The subsequent police ruse using lawfully obtained information does not constitute a privacy invasion or trespass in violation of either our state constitution or the United States Constitution.
A Department of Homeland Security (DHS) agent sent a series of text messages to Mr. Bowman. The DHS agent claimed to be someone named Mike Schabell, a person to whom Bowman had sold methamphetamine earlier that day, and indicated he wanted to buy more drugs. The ruse led to charges of possession of methamphetamine with intent to deliver.
The trial court denied his motion to suppress the drugs and drug paraphernalia on his person and in his vehicle. At trial, Mr. Bowman was found guilty.
On Appeal, the WA Court of Appeals reversed Bowman’s conviction. The Court reasoned that the DHS Agent (1) disrupted Mr. Bowman’s private affairs and (2) was not acting under authority of law. With that, the Court of Appeals reversed Mr. Bowman’s conviction.
WA SUPREME COURT’S ANALYSIS & CONCLUSIONS
However, the WA Supreme Court found that police did not violate Mr. Bowman’s constitutional rights. The Court reasoned that under State v. Hinton, Bowman did indeed have a privacy interest in the text messages he sent to a third party’s device. That said, Schabell’s consent to search his phone gave police the necessary authority of law to view the text message conversation. Furthermore, police did not commit an unconstitutional trespass by sending text messages to Bowman’s cell phone as part of a ruse.
“Consistent with long-standing precedent, we hold that a cell phone owner’s voluntary consent to search text messages on their phone provides law enforcement with the authority of law necessary to justify intruding on an otherwise private affair. We also hold that a subsequent police ruse using lawfully obtained information does not constitute a privacy invasion or trespass in violation of either our state constitution or the United States Constitution.” ~WA Supreme Court
“That he misunderstood the identity of the person he was texting does not transform the
unsolicited incoming message into an unconstitutional trespass,” said the WA Supreme Court. “The risk of being betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society.”
With that, the WA Supreme Court reversed the Court of Appeals and reinstated Bowman’s conviction.
My opinion? This issue, and many other related issues, will likely require further consideration if such investigatory tactics continue to be used in Washington. Please review my Search and Seizure guide and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.