A divided Indiana Court of Appeals ruled Thursday that cellphone users have a reasonable expectation to the privacy of their location information that’s tracked and collected by phone service providers. The majority’s holding reversed armed robbery convictions of an Ohio man found guilty of holding up two Dearborn County liquor stores.
Judges Patricia Riley and Rudolph R. Pyle III held that vacating Marcus Zanders’ convictions was necessary after police, without a warrant, sought and were provided data that pinpointed his location around the time of the robberies. This information was crucial to the prosecution in a case the majority wrote was otherwise largely circumstantial.
“Zanders had a reasonable expectation of privacy in the cell-site location data stored by Provider and obtained by (Dearborn County Sheriff’s Department) Detective (Garland) Bridges and his expectation was one that society considers reasonable and legitimate,” Riley wrote in Marcus Zanders v. State of Indiana, 15A01-1509-CR-1519. “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.
“We require police officers to do what they have done for decades when seeking to intrude upon a reasonable expectation of privacy: get a warrant,” the majority wrote. “As Detective Bridges neglected to get a warrant, we reverse and order the trial court to vacate Zanders’ convictions.” The majority observed in a footnote, however, that the state did not make a “harmless error” argument, so the panel did not perform that analysis in this case.
Zanders was convicted of two counts each of Level 3 felony robbery with a deadly weapon and Level 4 felony possession of a firearm by a serious violent felon. He also was adjudicated a habitual offender. A jury found him guilty of the armed robberies of Whitey’s Liquor in Lawrenceburg and J&J Liquor in Dillsboro within a few days in early 2015 and sentenced him to an aggregate term of 61 years in prison.
The majority relied on Riley v. California,134 S.Ct. 2473 (2014) and Wertz v. State, 41 N.E.3d 276 (Ind. 2015) to find the reasonable expectation of privacy in cellphone location data. But in dissent, Judge James Kirsch found precedent in a recent ruling from the federal Circuit Court based in Richmond, Va.
“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.
“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," Kirsch wrote.