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Massachusetts Appellate Law Blog: June 2021

June 15, 2021

In case of first impression, on June 1st, 2021, the Massachusetts Supreme Judicial Court (SJC) held that a person could not challenge the warrantless search of another person’s cell phone. The case is Commonwealth v. Delgado-Rivera, 487 Mass. 551 (2021). 

Some background: In June 2014, the Supreme Court of the United States decided Riley v. California, 573 U.S. 373 (2014), holding that the Fourth Amendment generally requires police to obtain a warrant prior to searching a person’s cell phone. But the question of whether a person can challenge the warrantless search of another person’s cell phone has not been decided by the U.S. Supreme Court, and, until this decision, had not been decided by the SJC in Massachusetts. 

In Delgado-Rivera, police in Texas stopped a vehicle driven by Leonel Garcia-Castaneda. Police searched his cell phone without a warrant. Various text messages to and from a phone number with a Massachusetts area code contained conversations relating to narcotics distribution. The Texas officers relayed the information they observed to authorities in Massachusetts. After an investigation, Garcia-Castaneda, and Delgado-Rivera, along with five codefendants, were charged in Middlesex County Superior Court.

Delgado-Rivera challenged the warrantless search of Garcia-Castaneda’s cell phone. Generally, to challenge the warrantless search of a thing or place, a defendant must establish he had a reasonable expectation of privacy in the thing or place searched. See Katz v. United States, 389 U.S. 347 (1967).

Here, the SJC held that Delgado-Rivera could not challenge the search of Garcia-Castaneda’s cell phone, reasoning that “in these circumstances, there was no reasonable expectation of privacy in the sent text messages because, as with some other forms of written communication, delivery created a memorialized record of the communication that was beyond the control of the sender.” And that “Delgado-Rivera assumed the risk that the communications he shared with Garcia-Castaneda might be made accessible to others, including law enforcement, through Garcia-Castaneda and his devices.” 

The SJC described how “Any purported expectation of privacy in sent text messages of this type is significantly undermined by the ease with which these messages can be shared with others. In addition to simply displaying the message to another, as would be possible with nonelectronic, written forms of communication, a recipient also can forward the contents of the message to hundreds or thousands of people at once, or post a message on social media for anyone with an Internet connection to view.” 

The SJC concluded: “Thus, Delgado-Rivera had no reasonable expectation of privacy under the Fourth Amendment in the text messages at issue because, once they were delivered, Garcia-Castaneda, as the recipient, gained full control of whether to share or disseminate the sender’s message.”

The Court acknowledged that in some cases there might be a difference, for example when messages are sent through more secure, encrypted messaging applications— like Signal or Telegram— and that perhaps the outcome could be different, but that the Court made no decision on that question in this case.

Follow @bvbdefense on Twitter and LinkedIN for updates on major cases from the Massachusetts Appeals Court and the Supreme Judicial Court, the First Circuit Court of Appeals and the Supreme Court of the United States. 

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