Cell phone users may be chilled by a federal judge's dismissal of a Virginia woman's privacy lawsuit against police officers who viewed nude photos of her that she had stored in a cell phone she lent to her boyfriend.

Culpeper's finest

A Culpeper, Va., police sergeant allegedly alerted other officers over the police radio system that the photos “were available for viewing” after Jessie Casella's boyfriend was arrested for driving under the influence. The cell phone had been found during a search of his possessions.

Both Casella and her boyfriend, Nathan Newhard, sued Sgt. Matt Borders and the Culpeper police department. In a recent decision, U.S. District Judge Norman K. Moon found Casella did not have an “objectively reasonable expectation of privacy” in the photos even though she was still paying the monthly bill for the phone.

The test for whether a person has a reasonable expectation of privacy in property held by another requires courts to consider “whether that person claims an ownership or possessory interest in the property, and whether he has established a right or taken precautions to exclude others from the property.”

Applying that test, Moon noted that Casella lent Newhard the phone “almost two months prior to his arrest” and she failed to take

any protective measures ... to secure the privacy of the images on the phone, such as password-protecting access to the phone's information or reaching an agreement with Newhard to keep the phone's information entirely private.

But in also dismissing Newhard's case, the judge noted that

In the Internet age, the extent to which the Fourth Amendment provides protection for the contents of electronic communications (such as images stored on a cell phone) in a search incident to arrest or inventory search is an open question.

And Moon may have gone too far in Casella's case by in effect depriving cell phone owners of any protection for the contents of their communications unless they take precautions to exclude others from their property.

Casella has appealed the decision. In a brief opposing the motion to dismiss, she said her arrangement with Newhard was “consistent with a bailment of, not the transfer of title to, the cellphone” and “a hallmark of a typical bailment situation is that an owner who allows another person to use the item retains ownership and the right to reclaim possession at will.”

“Plaintiff's boyfriend had at best temporary possession and Plaintiff-bailor Casella retained ownership rights in the item lent to her boyfriend so that she could freely contact him,” she argued.

Moon never addressed the bailment argument, concluding it was enough that Casella “lacked possession, control, and dominion” over the phone. He also ignored her claim that she “extracted a promise from Newhard that he would not show or transmit the pictures to any third party” -- which, for purposes of a motion to dismiss, he had to accept as true.

The 4th U.S. Circuit Court of Appeals should look closely at whether lack of possession is nine-tenths of the law here or whether Casella, as she puts it, “never in any way abandoned her ownership of images of her own nude body stored in her own cellphone.”

By Matthew Heller
11/23/09