Cengage Advantage Books: Fundamentals of Business Law Today 10th Edition by Roger LeRoy Miller

Exercise 22

State of Oklahoma v. Marcum
Court of Criminal Appeals of Oklahoma, 319 P.3d 681 (2014).
FACTS Angela Marcum, a drug court coordinator associated with a county court in Oklahoma, was romantically involved with James Miller, an assistant district attorney in the same county. When Miller learned that state officials were "in town" investigating suspected embezzlement, he quickly sent Marcum text messages from his personal phone. She sent messages back. The state obtained a search warrant and collected the records of the messages from U.S. Cellular, Miller's phone company. Later, the state charged Marcum with obstructing the investigation and offered in evidence the messages obtained pursuant to the search warrant. Marcum filed a motion to suppress the records, which the court granted. The state appealed.
ISSUE Does an individual who has exchanged text messages with another person have a reasonable expectation of privacy in those messages when they reside in the other person's account records at the telephone company?
DECISION No. A state intermediate appellate court reversed the ruling of the lower court. The case was reversed and remanded for further proceedings.
REASON According to the court, "Once the messages were both transmitted and received, the expectation of privacy was lost." When Marcum sent texts to Miller's phone, it was similar to mailing a letter-there is no expectation of privacy in the letter once it is delivered. Similarly, a caller cannot claim that a voice mail message, once it has been left and the recipient has played it, is private. In all of these situations, the individual's expectation of privacy in the communication is "defeated" by the decision to transmit a message to an electronic device that could be in anybody's possession. An individual has no reasonable expectation of privacy in the text messages or cell phone account records of another person when the individual does not have a possessory interest in the phone and the warrant is directed to a third party (here, U.S. Cellular).
FOR CRITICAL ANALYSIS-Technological Consideration If Miller and Marcum had used smartphones and U.S. Cellular had stored its records in the "cloud," would the outcome likely have been different? Explain.