The Washington State Supreme Court next month will hear the case of a Cowlitz County man who unwittingly tried to buy heroin from a Longview police officer who had seized a drug peddler’s cellphone.
At stake is whether cops can pretend to be drug dealers after they arrest dealers and those dealers’ phones start ringing. The tactic is commonly used by police across the nation.
On Nov. 3, 2009, Longview police detective Kevin Sawyer was given the iPhone of a man recently arrested on suspicion of dealing drugs, according to court documents. In the hours that followed, Sawyer used the phone to arrest two men suspected of trying to buy drugs. One of them was Shawn Daniel Hinton, 26, of Longview, who sent a text message to the dealer’s phone, authorities said.
“Hey whats up dogg can you call me i need to talk to you,” (sic) read the message, according to briefs filed with the state Supreme Court.
Over the course of several text messages, Sawyer arranged to meet Hinton at the Safeway grocery store on 15th Avenue in Longview, where it was agreed Hinton would give the detective $200 for a “ball” of heroin, according to court documents. Police arrested Hinton on suspicion of attempted heroin possession after he was spotted in a mini van in the grocery store’s parking lot.
A Cowlitz County Superior Court judge ruled that the text message could be used against Hinton. Hinton stipulated to the facts of the case, was convicted of attempted drug crimes on July 15, 2010 and was sentenced to 30 days in jail. Hinton then took his case to the state Court of Appeals, which also ruled the evidence admissible.
Hinton’s lawyer, John Hays of Longview, argues that Hinton had a reasonable expectation that his text message would be private, and therefore Longview police needed to get a search warrant before accessing the drug dealer’s iPhone. Without a warrant, the use of Hinton’s text message to arrest Hinton violated the U.S. Constitution’s Fourth Amendment protections against illegal searches and the state constitution’s privacy protections, Hays argues.
The Cowlitz County Prosecutor’s Office says that, because iPhone text messages simply pop up on the phone’s screen — meaning Sawyer didn’t have to press any buttons to see it — he didn’t need a warrant to review the message. In their brief to the high court, Prosecutor Sue Baur and Deputy Prosecutor Sean Brittain argue that a text message can’t be considered private because its sender doesn’t know who will end up reading it once it appears on the receiving cellphone.
The Washington Association of Prosecuting Attorneys has filed a brief backing the Cowlitz County Prosecutor’s Office’s assertion that Longview police’s use of cellphone was constitutional.
The American Civil Liberties Union and The Electronic Frontier Foundation, meanwhile, have filed briefs supporting Hinton’s case.
The ACLU’s lawyers argue in their brief that text messages have become “extremely common in modern life” and that they deserve the same privacy protections as other forms of communication, including phone calls and letters.
The state’s high court will hear oral arguments in the case May 7.
Editor's note: A previous version of this story misstated how the case was initially resolved in the local court.