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April 24, 2012

Ohio Court Addresses 4th Amendment, Text Messages

20308702.thmThe question of who can challenge a search of cell phone records was before an Ohio court on Aug. 13. The case, from the Court of Appeals of Ohio, Sixth District, is State v. Young

This case started with a missing 17-year-old girl. The police began to suspect that the defendant knew where she was. So they obtained his cell phone records from Verizon Wireless, by submitting a single page Emergency Request Form. The police also obtained the 17-year-old girl's cell phone records with the consent of her mother.

Notably, the records acquired contained not only the numbers that had been called, but also the content of some text messages that had been exchanged.

The 17-year-old was eventually found living — by her own choice — in an apartment rented by the defendant.

The defendant was charged with obstructing official business, a misdemeanor, relating to his provision of false information to the police during the course of the investigation. He tried to suppress the cell phone records as having been obtained in violation of his Fourth Amendment rights.

The court's analysis began with the standard concept of standing: in order to raise a Fourth Amendment claim, a defendant must must have been a victim of a search or seizure — one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.

The court noted that the defendant "raises many interesting, and perhaps novel, questions about the nature of the privacy expectations of text messages stored by third parties." Some of those questions were not reached because the trial court had suppressed the evidence that was obtained from his cell phone provider. The issue before the court was "whether the records obtained from [the defendant's] 17-year-old girlfriend's cell phone provider, with the consent of her mother, should be excluded."

The court ruled that the defendant did not have standing to raise this issue. The court said, the defendant "has put forth nothing that would establish that he had any reasonable privacy expectation in his girlfriend's phone records. He, therefore, is without standing to seek suppression of such evidence."



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