Back in November, I had a long and fairly detailed post about a pending Ninth Circuit case, United States v. McCreary, that considered how the Fourth Amendment applies to text messages. Based on the oral argument, the case seemed likely to lead to a very important precedent on how the Fourth Amendment applies to electronic communications.

  Alas, it didn't turn out that way. Last week, the Ninth Circuit affirmed McCreary's conviction without reaching the very difficult and interesting Fourth Amendment issues. Here's what the Court wrote on this issue in its nonprecedential opinion:

  The investigation of the two robberies revealed that McCreary and his co-defendant, Jonathan Hunter, communicated by text messages in planning the two robberies. The Government had a grand jury subpoena issued to the service provider, MCI/SkyTel, seeking the toll records including the text of the messages. McCreary contends that he had a reasonable expectation of privacy in these messages and that the acquisition of these messages by a grand jury subpoena without a search warrant violated his rights under the Fourth Amendment. He contends that to the extent 18 U.S.C. § 2703 of the Stored Communications Act authorized obtaining the text messages without probable cause and a search warrant it violated his Fourth Amendment rights.
  We do not reach this contention because we conclude that any error in admission of the text messages was harmless. The Government presented overwhelming separate, independent evidence of McCreary's guilt. The Government presented the testimony of two of the co-conspirators who participated in the robberies detailing McCreary's leadership in planning the robberies, providing clothes and guns, and giving instructions as to how the robberies were to be conducted and the getaway to be achieved. McCreary's participation was also corroborated by other substantial evidence.

  Not resolving the question makes sense if any error was harmless; better to avoid the difficult constitutional question. Still, it's frustrating from an academic perspective that these questions will have to wait for another day given how directly they were presented to the panel. Also, note that four months passed after the oral argument before the panel handed down its very short decision. I wonder if the judges spent some time working through the Fourth Amendment issues before deciding that the better course was to pass on them.

  UPDATE: On the other hand, might another panel of the Ninth Circuit reach this issue in Quon v. Arch Wireless, a Stored Communications Act case argued two weeks ago? The issue was briefed in part and it arose during the oral argument, available here, although it was hardly the focus of the argument and there wasn't much helpful on the issue. Also, in that case the context is government employment; the Fourth Amendment rules for government employment are very different from the normal Fourth Amendment rules, as explained here.