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In State v. Armstrong¸ the defendant pleaded guilty to aggravated manslaughter, as a lesser included offense to the murder of the current boyfriend of his former girlfriend and father of their child, Nache DeWitt, and to a related weapons offense. Armstrong had unsuccessfully moved to suppress the threatening text messages, he sent to DeWitt shortly before the shooting. The trial judge denied an evidentiary hearing and the motion to suppress because the messages were obtained with the consent of DeWitt, the recipient of the texts, and therefore Armstrong had no reasonable expectation of privacy in the messages once sent. In a published opinion, on June 2, 2020, the Appellate Division concluded that Armstrong "lacked standing to challenge the recovery of text messages from DeWitt's phone, in which he had no reasonable expectation of privacy," and affirmed the denial of the motion to suppress and the conviction.

This result emphasizes an important distinction in our search and seizure law between privacy rights for communications in the possession of a third party intermediary and communications in the possession of the intended recipient. New Jersey has been in the forefront of protecting the privacy interests and reasonable expectations of people who do not expect their phone and cell records and data to be shared with others by service providers or by others, such as financial institutions, which have a contractual or other legal obligation to maintain customer privacy. New Jersey Constitution article I paragraph 7 provides broader standing to protect the privacy of information in the hands of a third party intermediary than the federal Fourth Amendment. Our "automatic" or "broad" standing rule generally permits defendants to move to suppress physical evidence when they had either a "proprietary," "possessory" or "participatory" interest in evidence and a reasonable expectation of privacy "in places and things protected by the Fourth Amendment." Stated differently, a defendant can generally move to suppress the results of a search or seizure based on his "proprietary or possessory interest in the place searched or property seized."

Armstrong acknowledged no proprietary or possessory interest in the messages, but asserted a "participatory interest" based on being the alleged sender. The Appellate Division extensively reviewed cases from other jurisdictions that consistently denied the sender protection under both standing principles and expectation of privacy grounds. It held that Armstrong simply had no basis to control what the DeWitt could do with the texts once she received them and therefore lacked standing and an expectation of privacy under either the federal or state constitutions. The court affirmed the trial judge's conclusion that, despite New Jersey's liberal "broad" or "automatic" standing requirement permitting defendants to seek suppression of evidence possessed by, or to be used against, a defendant in a criminal proceeding, defendant had no standing to move to suppress evidence obtained from the phone of a third party with the owner's voluntary consent. Nor was there any need to deter police misconduct in this case.

We agree with the result, which is the same as if Armstrong had sent DeWitt threatening letters by old fashioned mail. The state could not intercept them in transit without a warrant, but the recipient could consent to turn them over, just as she could voluntarily reveal supposedly private conversations.

The Fourth Amendment has been held inapplicable in private civil litigation not involving conduct by law enforcement or other state action. But the holding of Armstrong is a salutary reminder that, absent privilege or other special circumstances, texts and emails in the hands of the recipient are accessible in the context of investigation or civil discovery. We must remember that we and our clients text and email at our peril.