The Oklahoma Court of Criminal Appeals (COCA) started 2014 off with a bang.
The first case decided this year, State v. Marcum, 2014 OK CR 1, saw COCA address a privacy issue that has not been examined by many, if any, other jurisdictions. As such, the decision could have far-reaching implications, not only in Oklahoma as binding precedent, but also in other jurisdictions for persuasive value. COCA reviewed jurisprudence from various other states and circuits before coming to its conclusion, and there is a great possibility that the persuasive value of the Marcum decision could usher in a whole new frontier of constitutional quandaries across the country in relation to one of the most widely used methods of communication these days: the text message.
The Defendant in Marcum was charged with Conspiracy to Defraud the State. Marcum was charged with two co-defendants, and all three individuals moved to suppress evidence related to incriminating text messages retrieved from the service provider/phone company records of only one of the defendants. The District Court granted two of the co-defendants' motions to suppress (former Assistant District Attorney James Michael Miller and Angela Marie Marcum), and the State appealed.
The text messages in question came about when the District Attorney for Pittsburg County advised Assistant District Attorney Miller that OSBI was in town investigating alleged embezzlement. Shortly after the news, Miller sent Marcum, with whom he was romantically involved, numerous text messages which were described as "salacious and incriminating." Miller also received numerous texts in response. All of the text messages in question were sent or received on Miller's personal cell phone as opposed to a state-issued phone.
The prosecution sought to admit records from Miller's telephone company of texts sent to, and received from, Miller's cell phone and obtained by search warrant. There were no records retrieved directly from Miller's actual cell phone, and the prosecution never actually searched the physical phone itself. Miller and Marcum moved to suppress the records of the texts received from the telephone company, arguing that the search warrant was invalid because the affidavit supporting the warrant was insufficient. The District Court held that both Marcum and Miller had an expectation that their texts would be private. It also ruled that Oklahoma had not explicitly adopted the Leon "good faith" exception, so the District Court would not apply it when considering defects in the affidavit supporting the search warrant. The State ultimately appealed only the holding as to Marcum's case.
Upon review, COCA entertained only the narrow issue of whether Marcum had a Fourth Amendment reasonable expectation of privacy in the telephone-company records of the texts she sent to, and received from, Miller's phone account. That issue was distinguished from the separate question of whether Marcum would have an expectation of privacy regarding the contents of text messages from her own phone or business records kept by her phone company. Moreover, COCA made it clear that this was not an issue of standing, but more so merely a question of privacy interests under the Fourth Amendment.
Consequently, the analysis began with the acknowledgement that Marcum needed to prove she had an actual subjective expectation of privacy in the records which society would recognize as reasonable. Although there is no published case from any other court that addresses this precise issue, COCA did note that most of the case law which discusses cell phones is more inclined to find a right to privacy in a personal cell phone as opposed to the records kept by the phone company, especially in the face of a third-party subpoena. Moreover, the closest the United States Supreme Court (SCOTUS) has come to this question (City of Ontario, Ca. v. Quon) merely examined the issue of reasonable expectations of privacy in cell phones regarding records kept on government-issued devices. Even in Quon, SCOTUS declined to specifically answer the issue.
Throughout the Marcum analysis, COCA continued to list various authorities which had previously addressed somewhat related issues of privacy in the context of text messages and cell phones. One such authority, the Court of Appeals for the Tenth Circuit, has noted that an individual does have a reasonable expectation of privacy in a cell phone, even though that interest does not preclude a search of the phone incident to arrest.
Regardless, COCA rationalized that the authorities cited lacked the specific facts of Marcum's situation: in those other cases, the question revolved around "the reasonable expectation of the person who holds the account, owned the phone, or is personally given the phone for his or her use by his or her employer." COCA analogized sending a text message with sending a letter or leaving a message with a receptionist. Correspondingly, COCA also referenced the provisions of Oklahoma law which allow for the interception of an electronic communication where the interceptor is a party to the communication or where one of the parties gives prior consent to the communication. Consequently, this notion of third party (the phone company) involvement was where COCA eventually hung its hat.
COCA ultimately adopted the reasoning of other jurisdictions which found no expectation of privacy exists in the text messages or telephone records containing the context of those messages, of another person where the defendant has no possessory interest in the cell phone in question. This was made explicitly true where the warrant in question is directed to a third party.
As far as the District Court's ruling that the COCA had not adopted the Leon "good faith" exception to the exclusionary rule? That ruling was swatted down as well. COCA used Marcum to reaffirm its recent endorsement of Leon in State v. Sittingdown, 2010 OK CR 22.
Sittingdown dealt with drugs found by officers pursuant to their service of a civil writ of execution on an individual. Law enforcement commanded Sittingdown remove the contents of his pockets, and he just so happened to remove a bag containing methamphetamine. The District Court ultimately ruled that the evidence should be suppressed, because even though the officers proceeded in good faith while executing the civil writ, they exceeded their authority by asking the Defendant to empty his pockets without sufficient probable cause at the time.
The Sittingdown analysis began with the assumption that no warrant is required when an officer conducts a seizure pursuant to a civil order or writ. However, COCA was quick to distinguish civil orders and writs from administrative searches and tax levies (which do in fact require search warrants prior to execution). A civil writ or order is distinct, because it is process issuing from a court; the subject of the order or writ has prior notice and an opportunity to be heard, unlike most criminal or administrative searches.
As such, COCA held that the writ of execution was only subject to the "ultimate standard of reasonableness." In this situation, the seizure was found to be reasonable, since the writ of execution authorized the authorities to assume control and dominion over the contents of Sittingdown's pockets (the opinion was careful to withhold from characterizing the activity as a search). The writ was executed as it was presented to the officers, and the command to the Defendant to empty his pockets was a valid levy pursuant to the writ of execution.
What is most alarming about this decision however, is that COCA, subsequent to establishing the precedent necessary to affirm the officers' actions under the 'reasonableness' standard it had employed, decided it necessary to expound on the somewhat unrelated "good faith" of the officers' actions. As if its primary holding were not enough, COCA also ruled that the officers' actions fell directly in line with the criteria established by Leon.
COCA could have simply stopped when it distinguished between a civil writ or order and a search warrant. Instead, Leon's logic was extended beyond the confines of previously holdings, thereby effectively establishing the "good faith" exception to the exclusionary rule as applicable in Oklahoma when an officer acts in "objectively reasonable reliance" upon a civil writ, even if the civil writ is subsequently found to be invalid. As is par for the course, none of the purposes of the exclusionary rule would have been served in this situation, as the officers' search and seizure were conducted in good faith and an objectively reasonable reliance on the writ of execution.
So what to make of these new developments?
One of the most important aspects of the Marcum decision is that Marcum, like Leon, is a search warrant case, and COCA seems content to extend the logic of Leon in similar contexts. However, it is disturbing that COCA cites to its opinion in Sittingdown for the precedent that it has already adopted the Leon 'good faith' exception. Sittingdown did not involve a search warrant. In fact, the COCA went to great lengths to distinguish the circumstance in Sittingdown (a civil writ of execution) from situations involving either a criminal or administrative search or a warrantless seizure. With that in mind, we can only hope that COCA means to apply the Leon exception only in situations in which a search warrant or a process which is predicated on adequate judicial safeguards is in question.
However, one has to worry that the precedent established by Marcum might be extended to the lengths of other jurisdictions allowing cell-phone-record searches. Even though COCA did not find all of the authorities listed in Marcum persuasive, the decision nonetheless listed the case law for reference. For example, decisions from the Minnesota Supreme Court have found that a defendant cannot have a reasonable expectation of privacy in cell phone records from a phone the defendant sent or received text messages from when those records are obtained from a phone company which the defendant is not an account holder nor has any relationship with. With the reasoning stretched to that point, a slippery easily presents itself.
Yet, the saving grace here may be the implicit acknowledgement that the Marcum holding is one of the first of its kind. In fact, COCA reasoned there was not much persuasive authority or precedent on which to base its decision. As such, for those of us worried that Marcum and the newly adopted Leon exception might open up the flood gates to situations in which law enforcement may access information kept in phone records even though they have not met the proper prerequisites for a valid search warrant due to a defective affidavit of probable cause, we also must hope that COCA applies Leon in accordance with the mandates set by SCOTUS. The exclusionary rule should still be employed in situations where law enforcement drafted defective affidavits in bad faith or acted unreasonably.
Moreover, there may be further review of from SCOTUS itself regarding the search of cell phone records. Marcum referenced language from United States v. Jones, in which Justice Sotomayor, in her concurring opinion, stated in regards to our society's ever-expanding expectation of privacy that '[m]ore fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks... I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."
It will be interesting to see how this area of jurisprudence develops, not only in Oklahoma, but also in other states and under federal law. After all, even SCOTUS has expressed some reservations regarding technological developments and the intersection with privacy concerns. As Justice Kennedy opined in Quon, '[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.' Hopefully, further inroads into the realm of cell phone and text message searches will be withheld until the technology's full role in our society is completely established.