SEE UPDATE AT THE END - RULING FROM US SUPREME COURT
A note found at a recent arrest read, "I, John Smith, am hereby selling a quarter pound of marijuana to Jane Taylor, for the price of $500". John Smith was arrested and charged with multiple drug related felonies. Sound odd? Well, yes, it is fictional. Nobody would really put that in writing, right?
Well, that's just what the wrong text message may end up looking like to a judge or jury. How about "500 for a QP"? (Interpreted as "$500 for a quarter pound"). More and more text messages regarding drug transactions are showing up in the courtroom and being used as evidence against defendants to secure drug sales related convictions.
Most law enforcement officers know to look for cell phones when making any arrest, especially for drug related activity. Officers now generally include in search warrants, which are approved by a judge, the ability to look through any cell phones for evidence associated with criminal activity including text messages. The California courts are consistently ruling that such inclusion in a search warrant is proper and legal. (People v. Rangel). Further, a 2011 California Supreme Court case ruled that an officer is allowed to go through your text messages on any cell phone associated with you at the time of your arrest. (People v. Diaz).
Are text messages admissible? Generally yes. Text messages are admissible in a criminal court assuming a prosecutor can lay a proper legal foundation. Most judges will let them into evidence over hearsay or like objection if the text has some relevance on the charges against a defendant.
Whether done for convenience or to avoid the fear of being recorded on the other end of the phone, texting can make a case more challenging for the lawyers who will later have to defend you. "Put it in writing" makes great sense for a contract for the purchase of a car, but before you text anything, criminal or not, ask, "Is this something I want to turn up in a court of law?" If the answer is no, best to just use your phone in a traditional fashion and call.
As a highly experienced Humboldt County Marijuana Defense lawyer, who is in the courtrooms on a daily basis representing people charged with marijuana and other drug related crimes, I have witnessed a significant increase in prosecutors attempting to use evidence found on cell phones including text messages. Remember, if you text it, you are putting it in writing.
People v. Rangel, (2006) 206 Cal App 4th 1310
People v. Diaz, (2011) 51 Cal 4th 840
******************************* UPDATE ***********************
The Supreme Court weighed in on the search of the cell phones and ruled that they are protected under the 4th Amendment from being looked at in a search "incident to arrest". For example, if I am pulled over and arrested for a DUI, law enforcement cannot scroll through my phone and anything on it because the phone was in my pocket when I was arrested. Before they can do this, law enforcement must have articulate facts that evidence of a crime is located on the phone and/or have applied for and received a search warrant signed by a judge. Note though that nearly all searches conducted pursuant to a search warrant for any crime include cell phones and cell phone records.
Riley v. California (2014)