¶24 (concurring) — The dissent criticizes the majority’s analysis and conclusion recognizing the defendant’s standing to raise the constitutional violation. In doing so, however, the dissent disregards our cases defining the scope of article I, section 7 of the Washington Constitution. Our article I, section 7 cases not only support but compel the majority’s conclusion that a citizen’s constitutional private affairs may be invaded by a warrantless search of another’s cell phone. I write separately to point out the dissent’s disregard of our article I, section 7 cases establishing the scope of a person’s private affairs.
¶25 To have standing, a defendant must demonstrate a personal privacy interest in the place or item searched. Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998); State v. Carter, 127 Wn.2d 836, 841, 904 P.2d 290 (1995). There can be no debate that Daniel Lee would have a privacy interest in his own phone. An individual’s cell phone often contains a wealth of private information about the owner, including e-mails, text messages, call histories, and address books, to name a few. United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008). “Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.” City of Ontario v. Quon, 560 U.S. 746, 760, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010). Thus a cell phone owner such as Lee has standing to challenge a search of his phone. But Shawn Hinton, unlike Lee, does not have a privacy interest in Lee’s phone generally because it is not *879Hinton’s e-mail, address book, calendar, or call history on Lee’s phone.
¶26 The inquiry in this case, however, is narrower: we must determine whether an individual has a privacy interest in the actual text message received by and stored on another individual’s cell phone. Information transmitted through text messages has the potential to implicate highly personal matters. Contrary to the dissent’s conclusion, a person does not lose all privacy interest in text messages merely because they are disclosed to an intended recipient, who could potentially disclose it to others. Dissent at 887-90. Rather, as the majority correctly recognizes, while there may be a risk that the person to whom we impart private information could disclose it, we do not assume the risk that the government will conduct a warrantless intrusion into a person’s private affairs. See majority at 874-75. This is a rule well established by our article I, section 7 cases.3
¶27 In State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), we established a clear distinction in defining the scope of a person’s private affairs under article I, section 7. Gunwall dealt with whether a warrant was required to seize and search telephone records from the telephone company who, for business purposes, compiled those records. In concluding that a warrant was required, we adapted the reasoning from other state cases:
“A telephone subscriber . . . has an actual expectation that the dialing of telephone numbers from a home telephone will be free from governmental intrusion. . . . The concomitant disclosure to the telephone company, for internal business purposes, of the numbers dialed by the telephone subscriber does not *880alter the caller’s expectation of privacy and transpose it into an assumed risk of disclosure to the government.”
Gunwall, 106 Wn.2d at 67 (first alteration in original) (quoting People v. Sporleder, 666 P.2d 135,141 (Colo. 1983)). We concluded Gunwall holding that absent a warrant, the police “unreasonably intruded into [the defendant’s] private affairs.” Gunwall, 106 Wn.2d at 68.
¶28 Further, in State v. Boland, 115 Wn.2d 571, 800 P.2d 1112 (1990), we determined the scope of an individual’s private affairs with regard to garbage. We noted that while it might be unreasonable to expect that after placing a garbage can on the curb for collection “children, scavengers, or snoops will not sift through one’s garbage,” it is reasonable to believe the garbage we place in our trash cans will be protected from warrantless government intrusion. Boland, 115 Wn.2d at 578. “ ‘People reasonably believe that police will not indiscriminately rummage through their trash bags to discover their personal effects.’ ” Boland, 115 Wn.2d at 578 (quoting State v. Tanaka, 67 Haw. 658, 662, 701 P.2d 1274 (1985)).
¶29 These cases, along with others defining the scope of a person’s private affairs,4 teach us that it is the determination of a constitutionally protectable interest, or private affair, that gives rise to the ability to challenge the warrantless search by the government. Thus, a telephone company or other provider or the trash collector’s “possession” of the information seized does not eliminate a person’s constitutional protections from government intrusion into that information.
¶30 Likewise, in transmitting his text messages to Lee, Hinton could reasonably believe Lee would receive and read those messages, but this does not lead to the belief that the government would acquire this information absent a war*881rant. His disclosure to Lee did not transform the scope of his private affairs into “an assumed risk of disclosure.” As a result, he retained a privacy interest in the information communicated through his text message.
¶31 Further, considering the wealth of personal and private information that is potentially stored on a cell phone, we should continue to recognize a rule that does not incentivize warrantless searches of cell phones. The dissent’s holding, however, would create such an incentive. If, under the dissent’s reading, Hinton had no privacy interest in the text message — and thus no standing to challenge the search of the text message — the police would suffer no consequences for the warrantless search. Allowing for such a situation would diminish our constitutional private affairs recognized under article I, section 7.
¶32 The sender of a text message assumes a limited risk that the recipient may voluntarily expose that message to a third party, but under our cases, the sender does not assume the risk that the police will search the phone in a manner that violates the phone owner’s rights. Article I, section 7 establishes protection against such warrantless intrusion, and the majority correctly recognizes this principle. Contrary to the dissent’s view, it is the determination that a private affair has been invaded that gives rise to the ability to challenge the search.
¶33 To illustrate, the police may seize an individual’s phone pursuant to a lawful search incident to arrest to prevent the destruction of evidence, State v. Valdez, 167 Wn.2d 761, 776, 224 P.3d 751 (2009), but may search the phone (including text messages) only with a warrant, a valid exception to the warrant requirement, or the phone owner’s express consent. In the absence of express consent from the phone owner, however, the sender of a text message should be allowed to stand in the shoes of the phone owner for purposes of challenging the search of the phone through which the text message was viewed.
*882¶34 In this case, there is no evidence that Lee consented to the search of his phone. Without a warrant, and without conforming to an exception to the warrant requirement, Detective Sawyer searched through Lee’s phone and responded to text messages posing as Lee. Because there is no evidence Lee consented to the search, Hinton should have standing to challenge it. Likewise, because the phone was searched without a warrant, an exception, or consent, any evidence derived from the search, including Hinton’s responses to Detective Sawyer’s text messages and his appearance at the drug transaction, is fruit of the poisonous tree, and the conviction must be overturned.
¶35 Respectfully, I concur.
Stephens, J., concurs with C. Johnson, J.The dissent also points out that a person’s private affairs do not include information voluntarily exposed to the general public. Dissent at 888 (quoting State v. Goucher, 124 Wn.2d 778, 784, 881 P.2d 210 (1994)). While this may be correct, it is irrelevant to this case because Hinton did not expose his information to the public generally. The question presented here is whether the police illegally accessed the text message without a warrant.
See State v. Miles, 160 Wn.2d 236, 156 P.3d 864 (2007) (privacy interest in banking records); State v. Jorden, 160 Wn.2d 121, 156 P.3d 893 (2007) (privacy interest in motel registry).