Upshur v. State

Decision Date28 November 2012
Docket NumberNo. 1461,Sept. Term, 2011.,1461
Citation56 A.3d 620,208 Md.App. 383
PartiesAlan J. UPSHUR v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland


John K. Phoebus, Crisfield, MD, for Appellant.

Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: MEREDITH, WRIGHT, ARRIE W. DAVIS, (Retired, specially assigned), JJ.


This case comes to us from the Circuit Court for Somerset County. After being charged with attempted murder and related offenses, Alan Upshur, appellant, moved to suppress the evidence of his name and address which were on record with his cellular telephone service provider, and which led to his identification by law enforcement and the issuance of a search warrant for his house and automobile. Upshur also moved to suppress an out-of-court photographic identification made by the victim, as well as evidence obtained as a result of the execution of the search warrant. At the conclusion of a pretrial suppression hearing, the circuit court denied the motion. Following a jury trial, Upshur was convicted of second degree assault, reckless endangerment, and carrying a concealed dangerous weapon. Subsequently, Upshur was sentenced to ten years' imprisonment for the assault conviction and three years' imprisonment, which was suspended, for the weapons charge. Upshur's timely appeal followed.


Appellant submitted the following questions for our review:

I. Did the trial court err in finding that records obtained pursuant to a State's Attorney's subpoena served outside of the State of Maryland and outside of Somerset County provided an independent source to justify admitting evidence obtained in violation of the Maryland Stored Communications Act?

II. Did the trial court err in holding that subscriber information illegally obtained in the course of a police investigation was not subject to the exclusionary rule because it was evidence of the Appellant's identity?

III. Did the trial court err in concluding that the State had met its burden of proving by clear and convincing evidence that the reliability of a pre-trial and subsequent in-court identification outweighed the impermissibly suggestive pretrial identification procedure?

For the reasons set forth below, we affirm the judgments of the circuit court.


On December 5, 2010, Princess Anne County Police responded to a 911 call. Darren Whittington had been stabbed, but he managed to evade his attackers and summon paramedics and police. Corporal Rob Smith questioned Whittington at the hospital. In response to questioning, Whittington said that a person known to him as “Ace” had stabbed him. Corporal Smith inquired about Ace's “real name,” but Whittington said he only knew the man as Ace. Whittington provided a bare-bones description of his assailant. Whittington said Ace was a black male and a student at the University of Maryland–Eastern Shore. Whittington guessed his age as around 24, and he described Ace as having a “short top” haircut. When Corporal Smith asked for any information that could lead to Ace, Whittington said that Ace's telephone number was stored in his cell phone's contacts list. Whittington consented to Princess Anne County Police retrieving the number from the phone, which had been left at the scene of the attack.

At the scene of the incident, Detective Sergeant Timothy Bozman located Whittington's cell phone and retrieved from the phone's contact list the number associated with “Ace Campus.” Detective Bozman typed the number into an Internet search engine and determined that Sprint Communications (“Sprint”) provided service to that particular number. Detective Bozmancontacted Sprint's offices, which were located in Kansas, to obtain information about the subscriber. Sprint faxed an “exigent circumstances” request form, which Detective Bozman filled in and faxed back. Shortly thereafter, Sprint faxed to Bozman the requested subscriber information for the telephone number that had been found in Whittington's contact list. The information from Sprint indicated that Upshur and Desiree Davis were the subscribers for that cell phone number.

Detective Bozman then ordered officers to place Upshur's apartment under surveillance, and he also applied for a search warrant for Upshur's home and automobile. Before officers obtained the warrant, Upshur and his roommate, Jamal Hood, were observed leaving the apartment. Officers stopped their vehicle, arrested Upshur, and detained Hood for questioning. Later, officers obtained a search warrant for Upshur's home and automobile, and then executed that warrant. Evidence seized in the apartment and automobile included a sheath to a fixed blade knife, a digital scale, a key for a Lexus automobile, and suspected marijuana, among other items.

After Whittington had sufficiently recovered, Detective Bozman visited him at the hospital on December 9, 2010. Whittington gave a more detailed statement to Detective Bozman. Whittington indicated that there were three men in the vehicle that had chased him. The next day, Detective Bozman returned to the hospital with some photographs to show to Whittington. Detective Bozman testified that he prepared a photographic array consisting of six color photographs. Detective Bozman hoped that Whittington could identify an occupant of the chase vehicle. Whittington was unable to pick out anyone from the array. Then, Detective Bozman showed Whittington a single photograph which was Upshur's booking photo. The photograph identified Upshur by name and also listed the charges that had been brought against him. DetectiveBozman asked Whittington if he recognized the man in the photograph. Whittington identified the person in the photograph as the person known to him as Ace.

On January 11, 2011, the Somerset County State's Attorney issued a State's Attorney's subpoena to Sprint for the subscriber information associated with the number that Whittington identified as associated with Ace. Sprint provided the same information it had given to Detective Bozman a month prior.

Upshur filed an omnibus motion to suppress evidence, which was later supplemented by four more-detailed motions to suppress evidence. Upshur sought to suppress the subscriber information obtained from Sprint, the out-of-court photographic identification of Upshur by Whittington, a folding knife and cell phone seized from Upshur as a result of his arrest, and various pieces of evidence seized from Upshur's home and automobile. The circuit court held a pretrial suppression hearing on April 11, 2011. The circuit court then requested briefs from the parties, and, in a ruling from the bench on June 6, 2011, the court denied Upshur's motions.

At the conclusion of a jury trial, Upshur was convicted of second degree assault, reckless endangerment, and carrying a concealed deadly weapon. Subsequently, Upshur was sentenced to ten years' imprisonment for the assault charge and three years' imprisonment, suspended, for the weapons charge. Upshur noted this appeal.


In reviewing a motion court's denial of a motion to suppress, we are limited to the record of the suppression hearing. Williams v. State, 372 Md. 386, 401, 813 A.2d 231 (2002) (citing Wilkes v. State, 364 Md. 554, 569, 774 A.2d 420 (2001)). “The facts found by the trial court must be considered in the light most favorable to the party who prevailed on the motion....” Id. (citing Wilkes, supra, 364 Md. at 569, 774 A.2d 420;Jones v. State, 343 Md. 448, 458, 682 A.2d 248 (1996)). The appellate court will “defer to the fact finding of the suppression court and accept the facts as found by that court unless clearly erroneous.” Id. (citing Wilkes, supra, 364 Md. at 569, 774 A.2d 420). “In determining whether a constitutional right has been violated, we make an independent, de novo, constitutional appraisal by applying the law to the facts presented in a particular case.” Id. (citing Wilkes, supra, 364 Md. at 569, 774 A.2d 420;Cartnail v. State, 359 Md. 272, 283–84, 753 A.2d 519 (2000)). See also In re Matthew S., 199 Md.App. 436, 447, 23 A.3d 250 (2011).

I. The Subscriber Data

Upshur contends that law enforcement officers collected his identifying subscriber data— viz., his name and address—in violation of the Maryland Stored Wire and Electronic Communications and Transactional Records Access Act (“Stored Communications Act), Maryland Code (1973, 2006 Repl.Vol., 2010 Supp.), Courts & Judicial Proceedings Article (“CJP”), § 10–4A–01, et seq. The Stored Communications Act provides, in pertinent part, that a provider of telecommunications services shall not provide a law enforcement officer electronic records, including “name, address, local and long distance telephone connection records, or records of session times and durations ... or other subscriber number or identity,” § 10–4A–04(c)(1)(i), unless the officer:

1. Uses a subpoena issued by a court of competent jurisdiction, a State grand jury subpoena, or a subpoena authorized under § 15–108 of the Criminal Procedure Article;

2. Obtains a warrant from a court of competent jurisdiction;

3. Obtains a court order requiring the disclosure under subsection (d) of this section; or

4. Has the consent of the subscriber or customer to the disclosure.

CJP § 10–4A–04(c)(2)(ii).

The Stored Communications Act mirrors its federal counterpart, the Electronic Communications Privacy Act, [208 Md.App. 393]18 U.S.C. § 2701, et seq. The federal statute, however, includes an exception for disclosure in exigent circumstances, 18 U.S.C. § 2702(c)(4), which the Maryland statute lacks.

As the circuit court noted, Upshur's subscriber data falls within the definition of “records” as defined by the Stored Communications Act. CJP § 10–4A–04(c)(1)(i). In this case, Detective Bozman initially requested the subscriber data from Sprint without first obtaining a subpoena, warrant, court order, or Upshur's consent, as...

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