Even though law enforcement conducted a warrantless Fourth Amendment search when they accessed of a man’s cellphone location data, the admission of the data does not warrant a new trial because any error was harmless beyond a reasonable doubt, the Indiana Supreme Court ruled Friday, upholding a man’s four convictions in a case heard on remand from the U.S. Supreme Court.
In a unanimous opinion authored by Chief Justice Loretta Rush, the state’s high court upheld Marcus Zanders’ convictions of two counts of robbery with a deadly weapon and two counts of unlawful possession of a firearm by a serious violent felon in Marcus Zanders v. State of Indiana, 15S01-1611-CR-571.
The justices had previously upheld Zanders’ liquor-store-robbery-related convictions in May 2017, when they ruled police could obtain cellphone location data without a warrant. But after the U.S. Supreme Court decision in Carpenter v. United States, 585 U.S. ----, 138 S. Ct. 2206 (2018), the case was remanded to the Indiana high court for reconsideration. Carpenter held that the third-party doctrine did not apply to seven days or more of historical cell-site location information, or CSLI, so law enforcement must get a search warrant to obtain those records.
The Indiana Court of Appeals reached a similar holding in overturning Zanders’ convictions in May 2016. Zanders’ CSLI had been admitted over his objection at his trial, but a divided COA determined law enforcement should have obtained a warrant before obtaining the location data.
When the state justices initially considered the issue in December 2016, they ultimately determined the third-party doctrine applied to CSLI. But the U.S. Supreme Court granted Zanders’ cert petition, vacated the Indiana Supreme Court’s holding and remanded for reconsideration in light of Carpenter.
After reconsideration, the state justices determined the state’s access of the CSLI data was a Fourth Amendment search under Carpenter because law enforcement accessed 30 days of Zanders’ location data. But the court declined to address the state’s argument that exigent circumstances justified the warrantless search, finding instead that the admission of the location data was harmless beyond a reasonable doubt.
In reaching that decision, Rush noted that if the CSLI was illegally obtained, only records and testimony related to the location data would have been excluded. She rejected Zanders’ argument that evidence obtained via subsequent search warrants — which Zander said relied on the CSLI — should be considered fruit of the poisonous tree.
“Here, the good-faith exception applied: the officers had reasonable grounds for believing that the warrants were properly issued,” Rush wrote. “When the officers applied for and obtained the warrants to search the residence, they did not have the benefit of Carpenter or other precedent establishing that the Fourth Amendment generally requires a warrant before police may access CSLI.”
“… This is true even if the warrants — without the CSLI information in the affidavits — were unsupported by probable cause,” the chief justice continued. “In that case, each warrant was still not so facially deficient that executing officers could not reasonably presume it to be valid.”
The court then recounted other “weightier” evidence that pointed toward Zanders’ guilt, including the fact that the robberies occurred near Zanders’ home; that a gun found at Zanders’ home was “indistinguishable” from the gun seen on surveillance footage during the robberies, and; that photos and video of the stolen goods were posted to Zanders’ Facebook page the day after each robbery. That evidence, among other evidence and corroborating eye-witness testimony, showed that the CSLI evidence was only cumulative, the court held.
“Again, the most the CSLI evidence could do was place Zanders near the liquor stores around the times they were robbed,” Rush wrote. “…To be sure, the sea of strong non-CSLI evidence that Zanders went inside and robbed Whitey’s and J&J necessarily submerged the significantly weaker CSLI evidence that Zanders was near the crimes.”
The court also concluded “the importance of the CSLI evidence was diminished by the non-CSLI evidence’s strength.” The justices further noted the location data underwent cross-examination, yet Zanders was still convicted.
“In sum, this cross-examination called attention to the CSLI evidence’s weaknesses — which, even at its strongest, was swamped by other, stronger evidence that Zanders was the man behind the mask in each robbery,” Rush concluded. “For this reason and others elaborated above, the admission of CSLI evidence, if it was error, was harmless beyond a reasonable doubt.”
In a footnote, Rush said the justices declined to revisit its original holding under Article 1, Section 11 of the Indiana Constitution.