State v. Hill
Decision Date | 13 July 2016 |
Docket Number | A16A0501 |
Parties | The State v. Hill. |
Court | Georgia Court of Appeals |
Jamie K. Inagawa, Audrey D. Holliday Cruzan, for Appellant.
Christopher Steven Harris, Tyrone, for Appellee.
, Judge.
This case involves allegations that James Brandon Hill committed misdemeanor theft of services in violation of OCGA § 16–8–5
when he fled without paying a fare owed to a taxi cab driver. The investigating officer found a cellular phone in the back of the taxi cab and, by placing an emergency call from the phone, determined that it belonged to Hill. In a motion to suppress, Hill argued that this constituted an illegal search of his phone in violation of the Fourth Amendment of the United States Constitution. The trial court granted Hill's motion, and the state appeals. Because Hill had no reasonable expectation of privacy in the information at issue—his own name, date of birth, and phone number—we agree with the state there was no search under the Fourth Amendment, and accordingly we reverse. In light of this conclusion, we do not address the issue of whether Hill abandoned the phone.
The evidence in this case is not in dispute, and we review de novo the trial court's application of law to the undisputed facts. See Hughes v. State , 296 Ga. 744, 750, 770 S.E.2d 636 (2015)
. A law enforcement officer, who was the only witness at the hearing on Hill's motion to suppress, testified that on June 1, 2014, he investigated a taxi cab driver's claim that a man had fled without paying his cab fare. The man who fled had left a cellular phone in the backseat of the cab. The officer turned on the phone but a passcode prevented him from accessing any data contained therein. The officer, however, was able to place an emergency call from the phone, and from that call a 911 dispatcher provided him with the number assigned to the phone and with Hill's name and date of birth.
Hill did not challenge the officer's seizure of the phone found in the cab. See generally Fair v. State , 284 Ga. 165, 174–175 (3) (d), 664 S.E.2d 227 (2008)
( ); Peek v. State , 239 Ga. 422, 426, 238 S.E.2d 12 (1977) () (citation and punctuation omitted). Instead, Hill argued in his motion to suppress that the officer's act of calling 911 with the phone constituted an “illegal search of [his] cellular phone for the purposes of ascertaining [his] identity.” In response, the state argued alternatively that the officer's act did not constitute a “search” within the meaning of the Fourth Amendment, and that Hill had abandoned the phone by leaving it in the cab. The trial court rejected both of the state's arguments and granted the motion to suppress. As detailed below, the trial court erred in concluding that the officer's actions were a Fourth Amendment search.
The Fourth Amendment to the United States Constitution provides the right of individuals to be free from unreasonable searches and seizures. U.S. Const. Amend. IV
. A Fourth Amendment search occurs when a government official physically intrudes or trespasses on a person's property. United States v. Jones , ––– U.S. ––––, –––– (II) (A), 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). This case does not involve such a physical intrusion or trespass. A Fourth Amendment search also occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States , 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citation omitted). See Katz v. United States , 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Conversely, “a Fourth Amendment search does not occur ... unless the individual manifested a subjective expectation of privacy in the object of the challenged search, and society is willing to recognize that expectation as reasonable.” Kyllo , supra (citation and punctuation omitted).
In applying the subjective expectation of privacy analysis to determine whether a Fourth Amendment search occurred, “it is important to begin by specifying precisely the nature of the state activity that is challenged.” Smith v. Maryland , 442 U.S. 735, 741 (II) (B), 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)
. The challenged activity in this case is the law enforcement officer's act of calling 911 from a cellular phone that was lawfully in the officer's possession. This activity enabled a dispatcher to determine the number assigned to the phone and the name and birthdate of Hill, who was associated with that number. Thus, Hill's Fourth Amendment argument “necessarily rests upon a claim that he had a ‘legitimate expectation of privacy’ regarding [his phone number, name, and birthdate].” Id. at 742, 99 S.Ct. 2577
. We find that he had no legitimate expectation of privacy in this information.
While the application of Fourth Amendment law to this precise set of facts appears to be an issue of first impression in Georgia, there are many cases in Georgia and in other jurisdictions supporting the conclusion that a person lacks a legitimate expectation of privacy in identifying information such as name, address, or telephone number that is used to facilitate the routing of communications by methods such as physical mail, e-mail, landline telephone, or cellular telephone. “[T]he majority of courts to consider the question have agreed that a person's name and address is not information about which a person can have a reasonable expectation of privacy.” Commonwealth v. Duncan , 572 Pa. 438, 817 A.2d 455, 466 (2003)
. Examples of cases in which courts have found no legitimate expectation of privacy and thus no Fourth Amendment protection include: Smith , supra, 442 U.S. at 743–747 (II) (B), 99 S.Ct. 2577 ( ); United States v. Forrester , 512 F.3d 500, 509–511 (III) (B) (1) (9th Cir. 2008) ( ); United States v. Choate , 576 F.2d 165, 174–177 (9th Cir. 1978) ( ); People v. Elder , 63 Cal.App.3d 731 (I), 134 Cal.Rptr. 212, 215 (1976) ( ); Ensley v. State , 330 Ga.App. 258, 259, 765 S.E.2d 374 (2014) ( ); Stephenson v. State , 171 Ga.App. 938, 321 S.E.2d 433 (1984) ( ); State v. Neely , 2012 WL 175340, *4 (III), 2012 Ohio App. LEXIS 165, *11 (Ohio App. 2012) (cellular phone subscriber has no reasonable expectation of privacy in his own phone number and “the police can trace from a phone number dialed to the identity of the subscriber of the phone from which that number was dialed”); Duncan , supra, 817 A.2d at 465–469 ( ). Cf. State v. DeFranco , 426 N.J.Super. 240 (II), 43 A.3d 1253, 1259 (App.Div.2012) ( )(citations omitted).
Two principles of Fourth Amendment law lead to this result. First, as to communications, there is a “core distinction: although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.”
United States v. Carpenter , 819 F.3d 880, 886 (II) (A) (6th Cir. 2016)
. Consistent with this distinction, we have held in a case involving a landline phone that the Fourth Amendment “protects only the content of a telephone conversation and not the fact that a call was placed or that a particular number was dialed.” Stephenson , supra, 171 Ga.App. at 939, 321 S.E.2d 433 (citation and punctuation omitted). See generally Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1019 (II) (A) (2010) (originating telephone number is non-content information analogous to return address on envelope).
Second, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith , supra, 442 U.S. at 743–744 (II) (B), 99 S.Ct. 2577
(citations omitted). This rule applies even where the person revealing information intended its use by the third party to be limited. United States v. Graham , 2016 U.S. App. LEXIS 9797, *5 (4th Cir. 2016) (en banc). By using a phone, a person exposes identifying information to third parties, such as telephone companies, and assumes the risk that the telephone company may reveal that information to the government. Smith , supra at 744 (II) (B), 99 S.Ct. 2577
. See also Ensley , supra, 330 Ga.App. at 259, 765 S.E.2d 374. Applying this principle to the act of law enforcement officers in obtaining from a cellular phone the number associated with that phone, the United States District Court for the Eastern District of Michigan held that “a cell[ular] phone number fits into the category of information that is not considered private...
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