871 N.W.2d 285
Wis. Ct. App.2015Background
- On Dec. 5, 2012, police found Wayne Wilson dead of acute fentanyl intoxication; officers recovered Wilson's cell phone at the scene.
- Officer Nyren viewed text messages on Wilson’s phone, including exchanges between Wilson and Ryan Tentoni about obtaining and using fentanyl patches.
- Texts from Tentoni described how to fold and use a patch in a manner consistent with how the patch was found on Wilson.
- Those messages led investigators to Tentoni and to a warrant for Tentoni’s phone records; Tentoni moved to suppress the messages found on Wilson’s phone and records obtained thereafter.
- The circuit court denied suppression; Tentoni pleaded guilty to amended second-degree reckless homicide and appealed, arguing he had a reasonable expectation of privacy in texts he sent that were stored on Wilson’s phone.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tentoni had a reasonable expectation of privacy in text messages he sent that were stored on another person’s (Wilson’s) phone | Tentoni: texts he authored are private and protected; suppression required because messages were discovered via a warrantless search of Wilson’s phone and led to further searches | State: sender loses privacy interest in messages once they are delivered to and stored on the recipient’s device; Tentoni had no property, control, or exclusionary rights in Wilson’s phone or its contents | Court: No objectively reasonable expectation of privacy; suppression denied and conviction affirmed |
Key Cases Cited
- Rakas v. Illinois, 439 U.S. 128 (1978) (Fourth Amendment rights are personal; standing requires a legitimate expectation of privacy)
- United States v. Dunning, 312 F.3d 528 (1st Cir.) (2002) (sender of a letter loses privacy interest after delivery)
- Guest v. Leis, 255 F.3d 325 (6th Cir.) (2001) (e‑mailer loses legitimate expectation of privacy once message reaches recipient)
- State v. Patino, 93 A.3d 40 (R.I. 2014) (sender lacks reasonable expectation of privacy in texts stored on recipient’s phone because recipient controls dissemination)
- State v. Bruski, 299 Wis. 2d 177 (Wis.) (2007) (Fourth Amendment rights are personal and not vicariously asserted)
- State v. Trecroci, 246 Wis. 2d 261 (Wis. Ct. App.) (2001) (two‑part test for reasonable expectation of privacy and multi‑factor, totality‑of‑circumstances analysis)
- Riley v. California, 134 S. Ct. 2473 (2014) (cellphone searches generally require a warrant, but Riley addressed owners/users of the searched phones)