In Ohio v. Deuble (2021), a law enforcement officer impersonated a 15-year-old girl named “Bella Jane” online with the aim of catching predators. Daniel Deuble took the officer’s bait, sending unsolicited sexual material to Bella Jane and arranging to meet her in a local park. When undercover officers got to the park, they saw two men—one of whom met the physical description that the perpetrator had given to Bella Jane. The officers texted the perpetrator and observed as Deuble stopped shooting hoops to respond to messages while the other man continued to play. While officers questioned him, they sent another text message to ensure that they had the right person. The text message notification on the man’s unsecured smartphone home screen confirmed that he was indeed Deuble.
A trial court found sufficient probable cause for detention given that Deuble was one of only two people in the park, fit the physical description of the perpetrator, and was seen texting at the same time the undercover officers were sending and receiving texts. The Ohio Court of Appeals, however, reversed the decision. The court found that Deuble had an expectation of privacy on his cell phone’s notification screen based on the U.S. Supreme Court’s decision in Riley v. California (2014), which held that the police may not search a cell phone without a warrant. Riley, however, left unanswered whether that privacy expectation extends to an unlocked home screen. The Supreme Court recently denied the state of Ohio’s petition to allow officers to view a smartphone’s notification screen without a warrant. Deuble is currently listed as a tier II offender on the Ohio sex offender registry.
The Department of Justice reported in 2018 that its task force had investigated more than 25,200 reports of technology-driven sexual offenses against minors. Sam Houston State University criminology professor Shelly Clevenger, PhD, and colleagues describe cybersex crimes as an endless game of “cat and mouse” given that technological developments allow people to leverage these advances for criminal purposes. As technology continues to advance, the law must also advance to determine what steps law enforcement officers are permitted to take to use that technology to their advantage when combating serious crimes.
There is a pervasive battle between the privacy awarded by the Fourth Amendment and how much that expectation of privacy extends to advancing technology. Increasingly nuanced questions, such as whether a smartphone’s lock screen is considered private, remain unanswered. The Deuble case brings into question the two-pronged Katz test (Katz v. United States, 1967), which requires one to show a subjective expectation of privacy that society would also consider reasonable. If Deuble had a reasonable expectation of privacy for the lock screen of his phone and society considers this expectation reasonable, then under Katz, officers should have obtained a search warrant to view it. Central Connecticut State University computer science professor Yusuf Albayram and colleagues, who surveyed individuals about home-screen habits in 2017, found that participants tended to underestimate the risk associated with not using a screen lock. Psychologists are well positioned to do research that probes privacy expectations—whether in smartphone home screens or other technology—that may interest courts grappling with the sorts of questions raised by Deuble.
