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Justices rule police may get cell location data without warrant

May 4, 2017

A criminal suspect had no expectation of privacy regarding the cellphone location information police obtained without a warrant before his arrest, a divided Indiana Supreme Court ruled in a 3-2 opinion issued Thursday.

Justices approved the convictions of Marcus Zanders, who robbed liquor stores in Lawrenceburg and Dillsboro six days apart. Police asked Sprint for Zanders’ cell site location information, which they received without a warrant. But before police could use the data, Ohio authorities arrested him in Cincinnati.

Chief Justice Loretta Rush wrote for the majority joined by Justices Mark Massa and Geoffrey Slaughter that police didn’t need a warrant to obtain information from Sprint pinpointing his recent whereabouts. Justice Steven David wrote a dissent joined by Justice Robert Rucker saying he was “troubled” by the landmark holding. Experts said the Zanders case could give much-needed guidance on when warrants are required and where exceptions may be permitted.

“Under federal precedent, the Fourth Amendment does not require police to obtain a search warrant to gather information an individual has voluntarily relinquished to a third party,” Rush wrote for the majority. “We hold that this rule, the ‘third-party doctrine,’ applies here, so Zanders had no reasonable expectation of privacy in Sprint’s historical (cell site location information). And under Indiana precedent, Article 1, Section 11 of our State Constitution does not prohibit police from taking reasonable actions — like obtaining minimally intrusive historical CSLI from a service provider to prevent an armed-robbery suspect from striking again.”

But David and Rucker in dissent wrote that Zanders’ rights under Article 1, Section 11 were violated.

“I appreciate that the majority acknowledges that had police obtained more sophisticated cell phone records, the level of intrusion would be ‘higher,’ but I feel that even given the limited CSLI requested here, the intrusion is high because it allows police to track the movements of private citizens who are using their phones, likely unbeknownst to them,” David wrote.

“I am also troubled with the majority’s conclusion that law enforcement needs here were so high that the police could not obtain a warrant. As the majority observes, this is not the case where there is a missing person or obvious exigency. Instead, we have an armed robber who has fled the State.  Police had at least some information about Zanders and where he may be living. I wonder why instead of completing and faxing a request to obtain the phone records, police did not do the legwork necessary to secure a warrant. In today’s world, search warrants can be requested and, where warranted, obtained within minutes, not hours or days.”

But Rush wrote that while police didn’t use the cell location data to find Zanders, they were justified in obtaining it without a warrant in this case. “(T)he issue is whether police were justified in requesting that CSLI in the heat of this armed-robbery-suspect hunt. They were,” she wrote.

“On different facts, of course, the Section 11 scales might well have tipped the other way. Had police not linked Zanders’s Facebook page to the robberies, the level of suspicion might have been negligible.  Had police obtained more sophisticated cell-phone records — like GPS or triangulated CSLI — the level of intrusion might have been higher. And had Zanders already been in custody when police requested the CSLI or had he been suspected of a less violent crime, the level of law enforcement needs might have been minimal. Those nuances, however, must wait for another case.”

All justices agreed there were no Fourth Amendment violations in Zanders’ case and that a detective who explained CSLI evidence to the jury properly testified as a skilled witness, not an expert witness, due to his specialized training. A divided Indiana Court of Appeals panel previously reversed Zanders’ convictions.

The case is Marcus Zanders v. State of Indiana, 15S01-1611-CR-571
   
 

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