Privacy and Text Messages: Commonwealth v. Jorge Delgado-Rivera

on May 13, 2025

However, when a phone is owned by another party, such as  a party to a text conversation or employer, what are the rights to privacy then?

Employers have the right to monitor activities on company-owned mobile devices, but they must comply with privacy laws that vary by state and must have a legitimate business purposes which include:

• Investigating complaints 

• Ensuring compliance with company policy

• Protecting company assets

In California, for example, employers generally have the right to monitor communications on company-owned mobile devices, but they cannot force employees to provide login information for personal social media accounts. This means employers can access text messages, voicemails, emails, and internet activity on company phones. They can also use tracking software to monitor employee activity on these devices. However, employers do not have the right to monitor personal devices.

But in Arizona, an employer can generally monitor and access company-owned mobile devices and email communications used for business purposes, as long as they have a valid business reason. However, there are limits, and some personal data on company-issued phones might be protected. While in New York, employers can monitor employee activities on company-owned mobile devices, but they must inform employees about the monitoring practices in writing. This includes obtaining consent and providing a clear policy that outlines what is being monitored and why.

In criminal investigations, law enforcement typically needs a warrant to access data from mobile devices, but there are exceptions, such as exigent circumstances or if the data is shared with third parties, which may reduce privacy expectations. The Supreme Court refused to hear a case in which a person involved in drug trafficking wanted to suppress incriminating text messages obtained from another party's phone. So as it stands, private communications can be used without explicit consent or a warrant.

Commonwealth v. Delgado-Rivera

Jorge Delgado-Rivera and six codefendants were indicted on charges of trafficking in 200 grams or more of cocaine, conspiracy to violate the drug laws, and conspiracy to commit money laundering. Delgado-Rivera's indictments stemmed from an investigation that originated partly from evidence acquired during a search of his codefendant's cellular telephone. 

Delgado-Rivera sought to join the owner of the telephone in a motion to suppress evidence obtained as a result of the search, which produced the contents of text messages sent by Delgado-Rivera; Delgado-Rivera argued that he had a privacy interest in the sent messages, while the Commonwealth argued that he had no standing to challenge the search.

 A Middlesex Superior Court judge Shannon Frison concluded that Delgado-Rivera had standing to challenge the motor vehicle stop of his codefendant, as well as the voluntariness of the search, and allowed him to join the motion to suppress.

On appeal, the Supreme Judicial Court concluded that the judge erred in deciding that Delgado-Rivera could join in the motion to suppress to challenge the stop and subsequent search. The defendant should not have been allowed to join in the motion to suppress because he enjoyed no reasonable expectation of privacy, under either State or Federal law, in the text messages sent by him that were stored on a cellular telephone belonging to, and possessed by, another person.

Writ of Certiorari - November 2021

Acting pro bono, Starkey and Milde filed a petition for a writ of certiorari in Delgado-Rivera. The Supreme Judicial Court reversed a Superior Court judge’s order granting the motion of Jorge Delgado-Rivera to join a motion to suppress evidence of text messages discovered by police in Texas on the cellphone of a co-defendant in an alleged drug trafficking conspiracy.

The SJC ruled Delgado-Rivera could not join the co-defendant’s motion to suppress because he lacked a reasonable expectation of privacy in text messages sent by him and stored on the cellphone of another.

“Any purported expectation of privacy in sent text messages of this type is significantly undermined by the ease with which these messages can be shared with others,” Justice Frank M. Gaziano wrote for the SJC.

The petition for cert filed by Starkey and Milde asks the Supreme Court to decide whether the Fourth Amendment prevents the government from using a person’s text messages against him when those messages are obtained through an unconstitutional search of the recipient’s cellphone.

Starkey says the answer to that question should be clear based on the Supreme Court’s 2014 holding in Riley v. California that warrantless searches of cellphones are unconstitutional in the absence of an applicable exception to the warrant requirement.

“Despite the U.S. Supreme Court unanimously holding that warrantless searches of cellphones are unconstitutional, here the Massachusetts Supreme Judicial Court held that a sender of a text message couldn’t challenge the unlawful, warrantless search of a recipient’s cellphone,” Starkey says.

On January 24, 2022, the petition for writ of certiorari to the Supreme Judicial Court of Massachusetts was denied.

Delgado-Rivera v. Massachusetts, 142 S. Ct. 908, 909, 211 L. Ed. 2d 611 (2022)