Does the Fourth Amendment protect text messages sent over a cell phone?

Trouble was brewing in the small, quiet city of Intrusia. Someone was selling methamphetamine to the local teenagers and a popular football player died after an overdose. The community was panicked and demanded that the police find the source of the meth and shut it down immediately. The police suspected that 20 year old Joe Doe was selling the meth but they didn’t have much evidence.

The state prosecutor advised the police department to talk with the local cell phone carrier about “cloning” Mr. Doe’s phone. The cell phone carrier created a “clone” phone which allowed the police to read text messages sent and received by Mr. Doe. In no time the police had evidence implicating Mr. Doe as a dealer and the location of the meth lab. Mr. Doe was convicted and the meth lab was closed.

Mr. Doe is appealing his conviction, claiming that the interception of text messages violated the unreasonable search and seizure protections of the Fourth Amendment. Furthermore, all evidence from the text messages should have been excluded from his trial.

The City of Intrusia argues that there was no physical intrusion into Mr. Doe’s space and that police were acting quickly in order to uphold their duty to protect the community’s safety.

Background:

In Silverman v. United States the Supreme Court held that that the Fourth Amendment does not protect conversations, therefore wiretapping does not constitute a search and seizure. The case was reversed in Katz v. United States, when Justice Harlan proposed a two pronged test of whether public actions should be considered private and therefore protected. 1) Has the person exhibited an expectation of privacy? and 2) is the expectation of privacy one that society is prepared to recognize as ‘reasonable.’

In more recent decisions, the Supreme Court has found that society is not prepared to extend privacy rights to bank customers regarding their bank statements and that society was not prepared to recognize a privacy right-to grow a backyard crop of marijuana.

The Questions:

• Does the Fourth Amendment protect text messages sent over a cell phone?

• Is there a “reasonable expectation of privacy” when texts are sent?

o Did Mr. Doe exhibit an expectation of privacy when he sent the texts?

o Is there a societal expectation of privacy in the process of text messaging?

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