FILED
Aug 04 2016, 8:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marcus Zanders, August 4, 2016
Appellant-Defendant, Court of Appeals Case No.
15A01-1509-CR-1519
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Sally McLaughlin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
15D01-1502-F3-3
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Marcus Zanders (Zanders), appeals his conviction for
two Counts of robbery with a deadly weapon, Level 3 felonies; two Counts of
unlawful possession of a firearm as a serious violent felon, Level 4 felonies; and
his adjudication as an habitual offender.
[2] We reverse.
ISSUES
[3] Zanders raises three issues on appeal, two of which we find dispositive and
which we restate as:
(1) Whether the trial court abused its discretion by denying Zanders’ motion
for mistrial after the State elicited an improper in-court identification of
Zanders by a witness; and
(2) Whether the warrantless seizure of Zanders’ cell phone provider’s
records, which included the location data of Zanders’ cell phone,
violated his Fourth Amendment Rights.
FACTS AND PROCEDURAL HISTORY
[4] On January 31, 2015, at approximately 9:00 p.m., an African American male
pulled up at a local ice cream parlor in Lawrenceburg, Indiana, driving a red
Pontiac G6. He entered the parlor and asked for directions to Whitey’s Liquor
Store. At 9:17 p.m., a masked gunman entered Whitey’s Liquor Store.
Kenneth Butler (Butler), the store clerk, noticed the gunman enter the store,
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wearing a dark hooded sweatshirt, dark gloves, a white mask, and carrying a
black pistol. The gunman demanded the cash from the store’s register. Butler
filled a brown paper bag with the money, and was then instructed to also gather
all of the store’s Newport cigarettes and two bottles of Patron tequila. The
gunman ordered Butler to hand him the store’s telephone, which he ripped
apart, and told Butler to lie on the floor. After Butler obeyed, the gunman left
the store. Butler notified the police.
[5] On February 6, 2015, Danielle Pruitt (Pruitt) was working at J & J Liquor Store
in Dillsboro, Indiana. At approximately 9:00 p.m., Pruitt received a phone call,
with an Ohio area code and with the caller inquiring about the store’s closing
time. Pruitt informed the caller that the store would close at 10:00 p.m. Pruitt
joked to the other employee working with her that evening, Lisa Huddleston
(Huddleston), that the caller had “better hurry” if they were going to get to J &
J Liquor’s prior to closing time. (Transcript p. 218). Within thirty minutes, an
African American male, wearing a gray hooded sweatshirt, gray sweatpants
with a navy blue Polo horse logo, white tennis shoes, and black gloves entered
the store. He was armed with a black pistol. The gunman immediately pulled
a mask over his face upon entering and demanded money. At his command,
Pruitt grabbed a bag and stuffed it with the money from the store’s three
registers. The gunman then grabbed the store’s phone and Huddleston’s cell
phone. Both phones were later found outside. The women were told to lay on
the floor. Before leaving the store, the gunman took a bottle of 1800 Silver
tequila from the shelf. As soon as Pruitt and Huddleston heard the gunman exit
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the store, Huddleston hit the store’s panic button and Pruitt locked the doors.
Kelly Curry (Curry) lived across from J & J Liquor store. At the time of the
robbery, Curry had stepped onto her third floor balcony to smoke a cigarette.
She noticed a man dressed in a gray sweat suit run around her building and
enter a red Pontiac.
[6] Detective Garland Bridges (Detective Bridges) of the Dearborn County Sheriff’s
Department responded to the call from J & J Liquor store and spoke with
Pruitt. Pruitt informed the Detective about the phone call with Ohio area code.
After Detective Bridges relayed the telephone number to Detective Carl
Pieczonka (Detective Pieczonka), Detective Pieczonka entered the phone
number into the Facebook search engine. The only result from this search was
Zanders’ Facebook page. The public postings on the page showed a
photograph of various denominations of U.S. currency, posted at
approximately 11:30 a.m. on the morning after the J & J Liquor store robbery.
Another picture of currency was uploaded at approximately 5:00 a.m. after the
robbery. A third photograph depicted a bottle of Patron tequila, posted the day
after the Whitey’s robbery and taken in Zanders’ mother’s residence, located in
Ohio. Zanders’ Facebook page also publicly included a video taken in Zanders’
mother’s home and posted the morning after the J & J Liquor store robbery.
The recording starts in the kitchen, showing a bottle of 1800 Silver tequila, then
travels down the hallway to a bed with a pile of money and personal effects.
[7] Based on the information from the Facebook page, Zanders was placed under
surveillance. Police officers located Zanders in the vicinity of his mother’s
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residence in Ohio, the day after the J & J Liquor store robbery while driving a
red Pontiac G6. After Zanders committed a traffic violation, he was pulled
over and arrested for driving with a suspended license. Detective Bridges and
another officer travelled to Ohio to interview Zanders. During the course of the
interview, Zanders denied ever having been in Indiana. He told the officers that
his mother owned the red Pontiac and that he drove the vehicle all day on the
day after J & J Liquors was robbed. Zanders elaborated that he smoked
Newport cigarettes and likes to drink Patron tequila. To explain his Facebook
photographs, Zanders told the officers that the money was his mother’s rent
money as well as casino winnings. He terminated the interview when he was
accused of armed robbery.
[8] While Zanders was being interviewed, Detective Bridges made an emergency
request to Zanders’ cell phone provider (Provider) to secure the records
associated with Zanders’ cell phone number. Based on this request, Provider
supplied Detective Bridges with Zanders’ call and cell-site location data for the
previous thirty days. From the historical cell-site location data, Detective
Bridges discovered that Zanders’ phone was used to call Whitey’s on the day of
the robbery at 7:42 p.m. while being in a cell-site sector covering Zanders’
mother’s residence. The data also showed that the cell phone received a call
nine minutes prior to the robbery at Whitey’s. At this time, the cell phone was
located in the same cell-site sector as Whitey’s. Approximately thirty minutes
after the robbery, the cell phone was back in the same cell-site sector as
Zanders’ mother’s residence. With respect to the J & J Liquor store robbery,
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the records established that Zanders’ cell phone was used to place a 9:09 p.m.
call to J & J Liquors while located in the same cell-site as the liquor store.
Within an hour of the robbery, the cell phone was again located in the same
cell-site sector as Zanders’ mother’s home.
[9] Based on the historical location data disclosed by the Provider, a search warrant
for Zanders’ mother’s residence and his brother’s home were sought, secured,
and executed. At his mother’s house, the officers discovered luggage with cash
inside next to a black glove with a Bengals emblem. In the same room, the
officers also found a dark-blue hooded sweatshirt, a black stocking cap, and a
white mesh mask. In the kitchen, the officers located a bottle of 1800 Silver
tequila bearing a price tag which appeared identical to the price stickers used by
J & J Liquors, but none of the fingerprints on it matched Zanders. An empty
pack of Newport cigarettes bearing an Indiana tax stamp was found in the
kitchen garbage can. In Zanders’ brother’s residence, the officers discovered a
box of Patron tequila, cash in a shoebox in the master bedroom, a black
handgun in the hallway closet, and a pair of gray Polo sweatpants and sweat
shirt.
[10] On February 9, 2015, the State filed an Information charging Zanders with one
Count of robbery with a deadly weapon, a Level 3 felony. Three days later, on
February 12, 2015, the State amended its Information, adding a second Count
of robbery with a deadly weapon, a Level 3 felony, as well as two Counts of
unlawful possession of a firearm by a serious violent felon, Level 4 felonies. At
the same time, the State filed a habitual offender enhancement.
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[11] After charges were filed, Zanders made a court appearance that became part of
a video news story posted on Facebook. Tasha West (West) viewed this video
approximately one week after the robbery at Whitey’s. West recalled that at the
time of the Whitey’s robbery, she was in the drive-thru lane at Gold Star Chili,
which is located in the same strip mall as Whitey’s. West was waiting for her
order when she saw a black male cross in front of her car on foot. “[H]e was
acting weird with his pants . . . like something was in his pants and he was
trying to hold his pants up[;]” he was wearing his hair in dreadlocks or corn
rows. (Tr. pp. 434-35). After seeing the Facebook video of Zanders, she
became convinced that Zanders was the black male walking in front of her
vehicle on the night of Whitey’s robbery.
[12] On July 21 through July 23, 2015, the trial court conducted a bifurcated jury
trial. During the first stage of the trial, Zanders presented a defense of mistaken
identity. He pointed out that the car from Whitey’s robbery did not match his
mother’s Pontiac, he defended against West’s identification, and he objected to
the State’s use of the historical location data obtained from Provider. At the
close of the evidence, the jury convicted Zanders of the two Counts of robbery
with a deadly weapon and two Counts of unlawful possession of a firearm by a
serious violent felon. Zanders pled guilty to being a habitual offender during
the second phase of his trial. On September 8, 2015, the trial court sentenced
Zanders to sixteen years each on the two Counts of robbery with a deadly
weapon and six years and three years respectively on the two Counts of
unlawful possession of a firearm. The sentences were ordered to run
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consecutively. Zanders’ sentence for one Count of the robbery convictions was
enhanced by twenty years for the habitual offender adjudication. In sum,
Zanders received an aggregate sentence of sixty-one years.
[13] Zanders now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. West’s Identification
[14] During the trial, Zanders objected to West’s in-court identification of him as
Whitey’s robber based on a video broadcast she had viewed one week after the
robbery but did not notify the State of until a week prior to trial. When the
State asked West whether “the individual that [she] saw [was] in the courtroom
here today[,]” Zanders objected, noting:
I’m going to object to this identification. We took deposition,
these officers said that nobody was presented with a line up to try
to pick my client out because no witness had seen my client or
would be able to identify the client. The police said she couldn’t
see his face. They said nobody could do this. []. I specifically
asked him, is there anybody out there that’s going to be able to
come in that courtroom, look over at my client and say that’s the
man I saw doing this and they said no. It’s in the depositions.
This lady . . . it’s all this time later, he was arrested a week later.
He’s never . . . she’s never been presented a line up. To come in
this courtroom today, he’s the only black man in here. He’s
sitting over there . . .
(Tr. p. 436). The State admitted that only in
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preparation for trial last week she indicated that she had seen the
perk [sic] walk of [Zanders] on the Facebook page and when she
saw him she realized that was the individual she saw that night
[in the drive-thru].
(Tr. p. 437). The trial court sustained Zanders’ objection and did not allow
West “to identify him here in the courtroom based on that time.” (Tr. p. 437).
The trial court clarified that it was not allowing an in-court identification
because “there’s only [] one (1) suspect sitting here and I don’t know based on
seven (7) months later, that has sufficient reliability on [West] pointing him out
today.” (Tr. p. 446).
[15] Due process prohibits testimony of out-of-court identifications conducted in an
unnecessarily suggestive manner. Parker v. State, 358 N.E.2d 110, 112 (Ind.
1976). Nevertheless, our supreme court has also repeatedly held that “an in-
court identification by a witness who has participated in an impermissibly
suggestive out-of-court identification is admissible if the witness has an
independent basis for the in-court identification.” Brown v. State, 577 N.E.2d
221, 225 (Ind. 1991), reh’g denied, cert. denied 506 U.S. 833 (1992). “The prior
identification must not have been made under circumstances so suggestive as to
produce ‘a very substantial likelihood of irreparable misidentification.’” Parker,
358 N.E.2d at 112 (citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d
401 (1972)). The parties do not contest the trial court’s determination that
West’s in-court identification of Zanders would be unreliable or that West did
not have an independent basis for an in-court identification. Rather, the trial
court did allow, which Zanders now contests, West to testify that she saw
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Zanders on a news broadcast posting on Facebook. Specifically, the trial court
observed
[h]owever, the other evidence that has been presented is that
approximately one (1) week after she made this observation
while waiting in the Gold Star Chili drive-thru, she did see a
Facebook type video from some news footage of the suspect
walking across the courthouse and [] I believe she has, from what
I’m hearing, it sounds like there was . . . there is reason to believe
that she observed the way he was walking and that she believes
then at that time that that was the person she had observed. This
will be open to cross-examination. It will be up to the jury
whether they choose to believe or not believe, [], she is not going
to be making an in-[c]ourt identification. [] In addition, [] you
are to refrain from [] speaking other than this was news coverage
of him appearing at a [c]ourt hearing walking through the
courthouse. There’s not to be any reference of [] anything further
than that and [] then [Zanders] as that evidence is attempted to
be presented if it is, you can make any further objection.
(Tr. pp. 446-47).
[16] After the trial court’s limiting instruction, the State resumed its questioning of
West. It elicited the following testimony:
[State]: I’m directing your attention to [] approximately a week
after you observed the black male in the parking lot at, while you
were at Gold Star Chili. Okay? [D]id you see any [] media
footage, video footage, of the Defendant on a Facebook [] from
Eagle 99.3?
[West]: Yes, sir.
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[State]: Okay and did you see in that video footage a black male
being, walking on that video footage?
[West]: Yes, sir.
[State]: And when you observed that, what do you recall?
****
[West]: [W]hen the camera was angled, it showed the person
being escorted and as the camera was facing I seen the person
walk directly in front of the camera and it was just like sitting in
my car watching him walk across the street, or across, in front of
my car up into the U.S. Bank.
[State]: [I]n seeing the video footage of the image of the person
plus the walking was exactly as you recall it on January 31st.
[West]: Yes, sir.
[State]: And the person in the Facebook video was identified in
that Facebook posting as [Zanders].
[West]: Yes, sir.
[State]: Okay.
[Defense]: I’m going to object, Your Honor. * * * * I think he
just had her identify the Defendant. Saying that she looked up
and said he’s here in the courtroom. She said his name. I’m
asking for a mistrial.
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(Tr. pp. 450-52). The trial court denied Zanders’ request for a mistrial.
[17] Zanders now contends that the trial court abused its discretion when it denied
its motion for a mistrial. Specifically, he argues that the State had violated the
trial court’s limited instruction of West’s testimony. Whether to grant or deny a
motion for mistrial is a decision left to the sound discretion of the trial court.
Agilera v. State, 862 N.E.2d 298, 307 (Ind. Ct. App. 2007), trans. denied. We will
reverse the trial court’s ruling only upon an abuse of that discretion. Id. We
afford the trial court such deference on appeal because the trial court is in the
best position to evaluate the relevant circumstances of an event and its impact
on the jury. Id. To prevail on appeal from a denial of a motion for mistrial, the
appellant must demonstrate the statement or conduct in question was so
prejudicial and inflammatory that he was placed in a position of grave peril to
which he should not have been subjected. Id. We determine the gravity of the
peril based upon the probable persuasive effect of the misconduct on the jury’s
decision rather than upon the degree of impropriety of the conduct. Id. We
have recognized that a mistrial is an extreme sanction warranted only when no
other cure can be expected to rectify the situation. Id.
[18] Zanders asserts that West’s identification of him as the robber is suspicious
because her first description of the robber as having “corn rows” or dreadlocks
did not correspond with Zanders’ hairstyle and she compared an unfettered
man fleeing a crime scene with the “image of an inmate in custody shuffling out
of a courtroom.” (Tr. p. 455; Appellant’s Br. p. 23). Pointing towards his
defense of mistaken identity and the State’s circumstantial evidence, Zanders
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posits that West’s identification placed him in a position of grave peril. He
maintains that West was so confident in “the police’s work that she dismissed
her earlier image of the man with cornrows and replaced it with the clean cut
Zanders.” (Appellant’s Br. p. 26).
[19] However, we cannot conclude that the State’s elicited testimony amounted to
misconduct that could be construed as the basis for a mistrial. The trial court
ruled that an in-court identification was improper but that West could testify
that the person who walked in front of her vehicle on the night of the Whitey’s
robbery was the same person identified as Zanders in a Facebook news video
posted one week later. The State and West complied with this limiting
instruction during questioning. West’s elicited testimony does not amount to
the prohibited in-court identification of Zanders. As noted by the State, a
crucial piece is missing in the evidentiary chain. In court, West did not point to
Zanders and informed the jury that she saw him on the night of the robbery,
rather, it was left up to the jury, as the trier of fact, to bridge the gap between
the person in the video identified as Zanders to the person in the courtroom.
[20] West’s testimony was material and relevant: she placed a person she saw
identified on a news broadcast near the scene of the crime at the time of the
robbery. Building on his theory of mistaken identity, Zanders subjected West to
a vigorous cross-examination. Whether to believe West’s testimony and out-of-
court identification remained within the province of the jury who could assign it
any weight considered appropriate. Accordingly, the State’s questioning of
West did not amount to prejudicial and inflammatory conduct that placed
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Zanders in a position of grave peril. See Agilera, 862 N.E.2d at 307. Therefore,
the trial court did not abuse its discretion in denying Zanders’ motion for a
mistrial.
II. Historical Location Data
[21] The day after the J & J Liquor store robbery, Detective Bridges obtained
Zanders’ cell phone records from Provider through an emergency request and
without a warrant. These records included Zanders’ historical location data,
i.e., the detailed records of his calls and cell-site location, as well as his GPS
location. The trial court admitted these records at trial over Zanders’ objection.
In an issue of first impression, Zanders now contends that the warrantless
search of his cell phone’s historical location data as compiled by Provider
violated the Fourth Amendment to the United States Constitution and Article
1, Section 11 of the Indiana Constitution. 1
[22] The Fourth Amendment to the United States Constitution protects “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. . .” “[T]he ultimate touchstone of the
Fourth Amendment is ‘reasonableness[.]’” Brigham City v. Stuart, 547 U.S. 398,
403,126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). We approach cases involving
warrantless searches with the basic understanding that “searches conducted
1
Because we reverse the trial court’s ruling on a Fourth Amendment violation, we will not address Zanders’
argument based on the Indiana Constitution.
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outside the judicial process, without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” Arizona v. Gant, 556
U.S. 332, 338, 129 S.Ct. 1017, 173 L.Ed.2d 486 (2009) (quoting Katz v. United
States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote
omitted)). Where there is no clear practice concerning the constitutionality of a
search, the reasonableness of the search is judged by balancing “the degree to
which it intrudes upon an individual’s privacy . . . and the degree to which it is
needed for the promotion of legitimate governmental interests.” Wyoming v.
Houghton, 526 U.S. 295, 299-300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).
A. Search
[23] Focusing on the nature of the search, the State first asserts that Provider
collected the historical location data from Zanders’ cell phone for its own
records, and the State merely requested copies of those business records.
Contrary to well-established Fourth Amendment doctrine, the State maintains
that it “asked [Provider] for something they owned. [Provider] obliged. No
search occurred.” (Appellee’s Br. p. 21).
[24] A party may establish a Fourth Amendment search by showing that the
government engaged in conduct that “would have constituted a ‘search’ within
the original meaning of the Fourth Amendment.” United States v. Jones, 132
S.Ct. 945, 950 n.3, 181 L.Ed.2d 911 (2012). “Search” originally was tied to
common-law trespass and involved some trespassory intrusion on property.
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See, e.g., Kyllo v. United States, 533 U.S. 27, 31-32, 212 S.Ct. 2038, 2042, 150
L.Ed.2d 94 (2001). In 1967, the Supreme Court, by way of Justice Harlan’s
concurring opinion, added a separate test—the reasonable-expectation-of-
privacy test—to analyze whether a search occurred for purposes of the Fourth
Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967)). “Katz posits a two-part inquiry: first, has the individual manifested a
subjective expectation of privacy in the object of the challenged search?”
California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210
(1986). “Second, is society willing to recognize that expectation as
reasonable?” Id. Accordingly, like here, “even in the absence of a trespass, a
Fourth Amendment search occurs when the government violates a subjective
expectation of privacy that society recognizes as reasonable.” Jones, 132 S.Ct.
at 955 (Sotomayor, J., concurring).
B. Third Party Records
[25] However, the State points out that in subsequently applying Katz’s tests, the
Supreme Court held—in both United States v. Miller and Smith v. Maryland—that
individuals have no reasonable expectation of privacy in certain business
records owned and maintained by a third party business. In Miller, the
government used defective subpoenas to obtain Miller’s financial records from
his bank. United States v. Miller, 425 U.S. 435, 437-38, 96 S.Ct. 1619, 1621, 48
L.Ed.2d 71 (1976). Faced with Miller’s claim that the government violated his
privacy interests in the contents of the bank records, the Court determined that
because such documents “contain only information voluntarily conveyed to the
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banks and exposed to their employees in the ordinary course of business,” the
depositor lacks “any legitimate expectation of privacy” in this information. Id.
at 442, 96 S.Ct. 1619. “[I]n revealing his affairs to another,” Miller assumed
the risk “that the information [would] be conveyed by that person to the
government.” Id. at 443, 96 S.Ct. 1619.
[26] Likewise, in Smith, a telephone company, at the request of the police, utilized a
pen register device to record the numbers dialed from Smith’s home phone.
Smith v. Maryland, 442 U.S. 735, 737, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
The Court determined that people generally understand that they must
communicate the numbers they dial to the phone company and that the phone
company has facilities for recording and storing this information permanently.
Id. at 742, 99 S.Ct. 2577. Even if Smith had an actual expectation of privacy in
the numbers he dialed, this would not be a “legitimate” expectation because he
“voluntarily conveyed” the numerical information to the phone company and
“exposed” the information to the company’s recording and storage equipment.
Id. at 744, 99 S.Ct. 2577. In so doing, Smith “assumed the risk” that the
company would disclose the information to law enforcement. Id.
[27] Contrary to the State’s claim, Miller, Smith, and its progeny do not categorically
exclude third-party records from Fourth Amendment protection. Rather, our
Supreme Court merely held that a person can claim no legitimate expectation of
privacy in information voluntarily conveyed to a third party. It is the act of
voluntary conveyance—not the mere fact that the information winds up in the
third party’s records—that demonstrates an assumption of risk of disclosure and
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therefore the lack of any reasonable expectation of privacy. We decline to
apply the third-party doctrine in the present case because a cell phone user does
not convey historical location data to his provider at all—voluntarily or
otherwise—and therefore does not assume any risk of disclosure to law
enforcement.
[28] Unlike the bank records in Miller or the phone numbers dialed in Smith, cell-site
or location data is neither tangible nor visible to a cell phone user. A cell phone
user is not required to affirmatively enter his location when making a call or
sending a message. Such information is rather “quietly and automatically
calculated by the network, without unusual or overt intervention that might be
detected by the target user.” United States v. Wheeler, -- F.Supp. 3d --- (E.D.
Wisc. March 14, 2016) (quoting In re Application of U.S. for Historical Cell Site
Data, 747 F.Supp.2d 827, 833 (S.D. Tex. 2010), vacated, 724 F.3d 600 (5th Cir.
2013)). Cell phone use is not only ubiquitous in our society today but, at least
for an increasing portion of our society, it has become essential for full cultural
and economic participation. See Riley v. California, 134 S.Ct. 2473, 2484, 189
L.Ed.430 (2014) (“[M]odern cell phones . . . are now such a pervasive and
insistent part of daily life that the proverbial visitor from Mars might conclude
they were an important feature of human anatomy.”).
[29] A cell phone user’s understanding of how cellular networks generally function
is beside the point. The more pertinent question is whether a user is generally
aware of what specific cell-sites are utilized when their cell phones connect to a
cellular network. It is the specificity of the historical location data that allows
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police officers to track cell phone users. While the cell phone was not originally
conceived as a tracking device, law enforcement has effectively converted it to
that purpose by monitoring cell-site data. As with a tracking device, this
process is usually surreptitious and unknown to the phone user who—with the
advent of the smart phone’s tracking capabilities—may not even be on the
phone. The technique was described in United States v. Forest, 355 F.3d 942, 947
(6th Cir. 2004), where DEA agents lost visual contact with two individuals
under wiretap surveillance for cocaine trafficking. In order to reestablish visual
contact, a DEA agent called the suspect’s cellular phone (without allowing it to
ring) several times that day and used a provider’s computer data to determine
which transmission towers were being hit by the phone. Id. This cell-site data
revealed the general location of the suspect. Id. In practicality, the suspect’s
cell phone functioned no differently than a traditional beeper device. See id. In
the case at bar, Detective Pieczonka testified that Zanders’ location data sent by
his cell phone was not only used “to determine a path of travel[,]” but could
also establish whether Zanders “moved within the building.” (Tr. pp. 690,
677).
[30] Courts have recognized that not all private information entrusted to third-party
providers of communications services is subject to warrantless government
inspection. As far back as 1877, the Supreme Court recognized Fourth
Amendment protection against warrantless inspection of the contents of mail
entrusted to the postal service for delivery. Ex Parte Jackson, 96 U.S. 727, 733, 6
Otto 727, 24 L.Ed. 877 (1877). The Court continued to recognize this
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protection 90 years later in Katz by stating “What a person knowingly exposes
to the public, even in his own home or office, is not a subject of Fourth
Amendment protection . . . But what he seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected.” Katz, 389 U.S.
at 351-52. The Court held that “[o]ne who occupies [a public phone booth],
shuts the door behind him, and pays the toll that permits him to place a call is
surely entitled to assume that the words he utters into the mouthpiece will not
be broadcast to the world.” Id. at 352. In the current digital age, courts have
continued to accord Fourth Amendment protection to information entrusted to
communications intermediaries but intended to remain private and free from
inspection. Courts have, for example, deemed government inspection of the
contents of emails a Fourth Amendment search but have declined to do the
same for email address information used to transmit these emails. Compare
United States v. Warshak, 631 F.3d 266, 287-88 (6th Cir. 2010) (holding that email
subscribers enjoy a reasonable expectation of privacy in the content of their
emails even though such content is accessible to Internet service providers), with
United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (holding that
government surveillance of a computer to discover email address information,
IP addresses, and amount of data transmitted by email does not constitute a
Fourth Amendment search).
[31] Although historical location data is content-free, it is more than simple routing
information. The cell-site data tracks a cell phone user’s location across specific
points in time almost as detailed as a visual, in-person shadowing by police
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officers would. Moreover, prior to obtaining the cell-site records, the
government does not know how granular the location data in the records is. If
Zanders had been constantly starting and terminating phone calls, then the
State would have obtained a continuous stream of historical location data,
approaching the information that can be gleaned from a GPS device or a
beeper. See Wertz v. State, 41 N.E.3d 276, 285 (Ind. 2015) (the data on
defendant’s GPS device is subject to Fourth Amendment protections); Forest,
355 F.3d at 947.
[32] For years, courts and commentators have begun to acknowledge the increasing
tension, wrought by our technological age, between the third-party doctrine and
the primacy that the Fourth Amendment doctrine grants to our society’s
expectation of privacy. In her concurring opinion in Jones, Justice Sotomayor
declared that the assumption that people lack reasonable privacy expectations
in information held by third parties is “ill suited to the digital age, in which
people reveal a great deal of information about themselves to third parties in the
course of carrying out mundane tasks.” Jones, 132 S.Ct. at 957 (Sotomayor, J.,
concurring). See also Kyllo v. United States, 533 U.S. 27, 35, 121 S.Ct. 2038,
2044, 150 L.Ed.2d 94 (2001) (rejecting a “mechanical interpretation of the
Fourth Amendment” in the face of “advancing technology”).
[33] The extent of information that we expose to third parties has increased by
orders of magnitude since the Supreme Court decided Miller and Smith. To
now apply a rigorous application of Miller and Smith, as the State advocates,
would create a rule that would preclude virtually any Fourth Amendment
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challenge against government inspection of third-party records. As Warshak
suggests, Smith and Miller do not endorse a blind application of the third party
doctrine in cases where information, in which there exists clearly reasonable
privacy expectations, is recorded by a third party through an accident of
technology. See Warshak, 631 F.3d at 287-88. “[I]f a new technology permits
the government to access information that it previously could not access
without a warrant, using techniques not regulated under preexisting rules that
predate technology, the effect will be that the Fourth Amendment matters less
and less over time.” Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth
Amendment, 215 Harv. L. Rev. 476, 527 (2011).
[34] The proliferation of cellular networks has left service providers with a
continuing stream of increasingly detailed information about the locations and
movements of network users. 2 Prior to this development, people generally had
no cause for concern that their movements could be tracked to this extent. That
new technology has happened to generate and permit retention of this
information cannot by itself justify inspection by the government. At the same
time, a cell phone user cannot be said to voluntarily convey to her service
provider information that she never held but was instead generated by the
2
Service providers have begun to increase their network coverage using low-power small cells, called
“microcells,” “picocells,” and “ femtocells” which provide service to areas as small as ten meters. Because
the coverage area of the femtocells is so small, callers connecting to a provider’s network via femtocells can
be located to a high degree of precision, sometimes effectively identifying individual floors and rooms within
buildings. U.S. v. Davis, 785 F.3d 498, 542 (11th Cir. 2015) (Martin, J. dissenting) (quoting ACLU Amicus
Br.).
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service provider itself without the user’s involvement. Accordingly, the third-
party doctrine does not dictate the outcome of this case.
C. Zanders’ Expectation of Privacy
[35] In advocating that his historical location data is entitled to Fourth Amendment
protection, Zanders relies on Riley and Wertz. In Riley, the United States
Supreme Court held that a warrant is generally required to search an arrestee’s
cell phone, despite a recognized exception for searches incident to a lawful
arrest. Riley, 134 S.Ct. at 2485. The Court based its holding on two reasons:
(1) concerns justifying a search incident to arrest are not applicable to digital
data; and (2) digital data implicates substantial privacy concerns far beyond
those implicated by the search of physical items ordinarily found on an
arrestee’s person. Id. at 2484-85. It is the latter rationale that we find
instructive in the issue before us.
[36] The Riley Court noted that “when privacy related concerns are weighty enough
a search may require a warrant, notwithstanding the diminished expectations of
privacy of the arrestee.” Id. at 2488 (quoting Maryland v. King, -- U.S. ---, 133
S.Ct. 1958, 1979, 186 L.Ed.2d 1 (2013)). The Court deemed these concerns
important enough with respect to cell phones, which hold “the privacies of life”
and are nowadays more akin to “minicomputers.” Id. at 2494-95, 2489.
Distinguishing cell phones quantitatively and qualitatively from physical
objects, the Court pointed to a cell phone’s capacity to store enormous amounts
of information and its likelihood to contain private information that could not
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otherwise be gleaned from a search of one’s person. Id. at 2489-91. Of
particular relevance to this case is the Court’s reference to location information
in its discussion of privacy interest. Most importantly, the Court noted “[d]ata
on a cell phone can also reveal where a person has been. Historic location
information is a standard feature on many cell phones and can reconstruct
someone’s specific movements down to the minute, not only around town but
also within a particular building.” Id. at 2490 (citing United States v. Jones, --
U.S. ---, 132 S.Ct. 945 955, 181 L.Ed. 911 (2012) (Sotomayor, J., concurring)).
[37] This court recently likened a GPS unit to a computer or cell phone in Wertz v.
State, 41 N.E.3d 276, 281 (Ind. Ct. App. 2015), trans. denied, 3 which addressed
the warrantless search of a GPS device. Analyzing the privacy expectations in
location data, we rejected the State’s argument that the information contained
in a GPS device—location, route of travel, and speed—should be afforded a
lesser degree of privacy. Id. at 282. Relying on the Supreme Court opinion in
Jones, this court unequivocally concluded that the historical location data stored
in a GPS device
provides law enforcement with a simple method of reconstructing
all of a person’s public movements over several days, months, or
possibly even years. Although a person can expect to be seen by
someone when he leaves his home and drives to a given
destination, it does not follow that he should expect the
government to know his whereabouts all the time. We are
3
In its brief, the State consistently misidentifies Wertz as an opinion by the Indiana supreme court. We point
out that Wertz was decided by the court of appeals and denied transfer by our supreme court.
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confident in saying that there is a reasonable expectation of
privacy in historical location data, whether it be stored in a cell
phone, a GPS unit, or in ‘the cloud.’
Id. at 284-85 (emphasis in original) (footnote omitted). Moreover, “[t]he
expectation of privacy in one’s whereabouts is not only due to society’s impulse
to cringe at the idea of being followed day and-night; the personal nature of the
information itself gives rise to an expectation of privacy.” Id. at 285.
[38] Continuing in the direction shown by our Supreme Court in Riley and Jones,
and this court’s recent pronouncement in Wertz, we hold that Zanders had a
reasonable expectation of privacy in the historical location data generated by
his cell phone but collected by Provider. The record reflects that Detective
Bridges requested Provider to submit Zanders’ “Call Detail Records WITH cell
Sites and GPS (Location)” for the last thirty days from the request. (State’s
Exh. 107). Provider collected over 520 pages of Zanders’ historical location
data, which were admitted at trial over Zanders’ objection. Each time Zanders
made a call or received a call, Provider catalogued the cell tower to which his
cell phone connected, and which, in turn, revealed Zanders’ location. As such,
Zanders’ data generated “a precise, comprehensive record of [his] public
movements that reflects a wealth of detail about his familial, political,
professional, religious, and sexual associations.” Jones, 132 S.Ct. at 955
(Sotomayor, J., concurring). The specificity of the information that the police
officers obtained was highlighted by the way the State used it at trial. In a case
built on circumstantial evidence and without any eyewitnesses, the State
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bolstered its allegations by using the location data as an indicator that Zanders
was at, or in the vicinity of, the scenes of the robberies.
[39] Zanders had a reasonable expectation of privacy in the cell-site location data
stored by Provider and obtained by Detective Bridges and his expectation was
one that society considers reasonable and legitimate. Cell-site data is not the
type of information which spoils or perishes during the short time it takes to get
a warrant and, as such, imposing the requirements for a warrant under these
circumstances would hardly shackle law enforcements from conducting
effective investigations. Cf. Riley, 134 S.Ct. at 2493 (noting that “[r]ecent
technological advances . . . have . . . made the process of obtaining a warrant
itself more efficient”).
We cannot deny that our decision today will have an impact on
the ability of law enforcement to combat crime. Cell phones
have become important tools in facilitating coordination and
communication among members of criminal enterprises, and can
provide valuable incriminating information about dangerous
criminals. Privacy comes at a cost.
Id. But still, the Riley Court insisted that law enforcement officers get a warrant
before searching a cell phone incident to arrest and the Wertz court insisted on a
warrant to search the location data on a GPS device. See Riley, 134 S.Ct. at
2485, Wertz, 41 N.E.3d at 284-85. So here too. We require police officers to do
what they have done for decades when seeking to intrude upon a reasonable
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expectation of privacy: get a warrant. As Detective Bridges neglected to get a
warrant, we reverse and order the trial court to vacate Zanders’ convictions. 4
CONCLUSION
[40] Based on the foregoing, we conclude that the trial court properly denied
Zanders’ motion for mistrial. However, we hold that the warrantless seizure of
Zanders’ historical location data compiled by his cellular network provider
violated his Fourth Amendment Rights
[41] Reversed.
[42] Pyle, J. concurs
[43] Kirsch, J. dissents with separate opinion
4
Although admissions of evidence in violation of the Fourth Amendment can be subject to harmless error
analysis, here, the State did not present us with this alternate argument. See Cudworth v. State, 818 N.E.2d
133, 142 (Ind. Ct. App. 2004), trans. denied.
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IN THE
COURT OF APPEALS OF INDIANA
Marcus Zanders,
Appellant-Defendant, Court of Appeals Case No.
15A01-1509-CR-1519
v.
State of Indiana,
Appellee-Plaintiff
KIRSCH, Judge, dissenting.
[44] I respectfully dissent.
[45] In United States v. Graham, the United States Court of Appeals for the Fourth
Circuit, sitting en banc, held that individuals do not have a reasonable
expectation of privacy in historical cell-site location records maintained by cell
phone providers. No. 12-4659, No. 12-4825, 2016 WL 3068018, at *3 (4th Cir.
May 31, 2016). As a result, the government’s acquisition of such data from the
defendant’s cellular providers, without a warrant, did not violate the Fourth
Amendment to the United States Constitution. Id. at *4.
Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016 Page 28 of 29
[46] In so holding, the Court joined the United States Courts of Appeals for the
Sixth Circuit in United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), the
Eleventh Circuit in United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en
banc), cert. denied, 136 S. Ct. 479, 193 L. Ed. 2d 349 (2015), and the Fifth
Circuit in In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600 (5th
Cir. 2013), and the “vast majority of federal district court judges [who] have
reached the same conclusion.” Graham, 2016 WL 3068018, at *4.
[47] In Graham, the Court followed United States Supreme Court precedent which
“mandates this conclusion.” Id. at *1. The precedent cited was Smith v.
Maryland, 442 U.S. 735(1979), where the Court held an individual has no
Fourth Amendment protection “in information he voluntarily turns over to [a]
third part[y].” Smith, 442 U.S. at 743-44.
[48] Although I share the concerns of my colleagues regarding the tensions arising
from the constantly mushrooming technology, the government here did not
transgress the defendant’s reasonable expectations, and I would affirm his
convictions for two counts of robbery with a deadly weapon as Level 3 felonies,
two counts of unlawful possession of a firearm as a serious violent felon as
Level 4 felonies, and his adjudication as a habitual offender.
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