Hitting Send Forfeits Privacy of Text Messages

(CN) - Once a text message is delivered, the sender has no expectation of privacy, an appeals court found, affirming Oklahoma's use of an accused embezzler's texts against her.

The case concerns a 2011 indictment that charged Angela Marcum with embezzling thousands of dollars paid to the Oklahoma District 18 Drug Court by defendants given the option of completing the drug count program to avoid prison sentences.

Marcum also allegedly took a laptop computer and the receipt books from the Drug Court where she was a coordinator to hide the evidence of her embezzlement from prosecutors.

After pleading not guilty, Marcum moved to suppress evidence of text messages sent between Marcum and her then-boyfrined James Miller, an assistant district attorney in Pittsburg County.

After the Pittsburg County Attorney told Miller that the Oklahoma State Bureau of Investigation was in town investigating allegations of embezzlement, Miller texted Marcum from the alley behind the courthouse, and she sent messages in response.

Describing the messages as "salacious and incriminating," the trial judge granted Marcum's request to suppress the evidence.

But the Oklahoma Court of Criminal Appeals reversed the ruling last week.

"The United States Supreme Court has so far refused to explicitly recognize a right to privacy in the content of cell phones," Judge Clancy Smith wrote for the five-judge panel.

There is especially no expectation of privacy to texts sent to another person's phone. The evidence in this case was obtained via a search warrant sent to U.S. Cellular for Miller's phone records.

"Marcum's strongest claim to an expectation of privacy is in the texts she sent to Miller's phone, which were received by him and recorded on Miller's account records," Smith wrote. "This is similar to mailing a letter; there is no expectation of privacy once the letter is delivered. It is like leaving a voice mail message, having the recipient receive and play the message, and then claiming the message is private."

Precedent dictates "that there is no expectation of privacy in the text messages or account records of another person, where the defendant has no possessory interest in the cell phone in question, and particularly where, as here, the actual warrant is directed to a third party," the ruling also states.

The trial judge did, however, properly suppress the same evidence which the prosecution sought to use against Miller in a separate perjury trial, according to the ruling.

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