Submitted: January 22, 2014.
10C46482. Marion County Circuit Court. Vance D. Day, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jake J. Hogue, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[266 Or.App. 104] SERCOMBE, P. J.
Defendant appeals a judgment of conviction for conspiracy to commit delivery of methamphetamine, assigning error to the trial court's denial of her motion to suppress evidence. While police were searching a car that had been reported stolen, they found a cell phone in the car that, according to a man whom police found sleeping in the car, belonged to " Duane." That phone received a text message, the police flipped open the phone, and they saw a message from defendant asking if the recipient knew anyone who wanted to buy methamphetamine. Defendant later exchanged text messages with one of the officers, agreed to sell him methamphetamine, and, after being confronted by the officer, admitted that she had intended to sell methamphetamine to the person she was texting. Defendant moved to suppress evidence of the text message found on Duane's phone and the other evidence of defendant's interactions with police, arguing that the police, in viewing the text message on the phone, had conducted an unlawful search under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution. The trial court disagreed and denied that motion.
On appeal, defendant asserts that she had a privacy interest in the content of her text message that police discovered on Duane's phone, and the police violated that interest-- i.e., they conducted a " search" --when they viewed the message that was delivered to that phone. The state counters that a sender of a text message does not retain a privacy interest in the digital copy of the text message found on the recipient's phone. For the reasons that follow, we agree with the state, and, accordingly, affirm.
We review the trial court's denial of defendant's motion to suppress for errors of law.
State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In doing so, we are bound by the trial court's express and implicit factual findings if there is constitutionally sufficient evidence in the record to support them. Id. We state the facts in accordance with that standard.
Two Salem police officers found a man sleeping in the driver's seat of a stolen truck. One of those officers, [266 Or.App. 105] Welsh, placed the man, Ross, in the back of his patrol car on suspicion of unauthorized use of a motor vehicle and identity theft. As the police searched Ross and the truck, they found two cell phones--one on Ross's person and the other clipped to a visor in the truck. Ross told the police that the phone on the visor was not his and that it belonged to " Duane."
While the officers continued to search the vehicle, that phone received a text message. Welsh flipped open the phone and saw a message from " Angel" that " said something to the effect of, do you know anybody that wants a 30." He used the phone to text back " maybe" and then turned the ...