Zanders v. State

• Decision Date: 04 August 2016
• Docket Number: No. 15A01–1509–CR–1519.,15A01–1509–CR–1519.
• Parties: Marcus ZANDERS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

58 N.E.3d 254

Marcus ZANDERS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 15A01–1509–CR–1519.

Court of Appeals of Indiana.

Aug. 4, 2016.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

RILEY, Judge.

STATEMENT OF THE CASE

[1] Appellant–Defendant, Marcus Zanders (Zanders), appeals his conviction for two Counts of robbery with a deadly weapon, Level 3 felonies; two Counts of unlawful possession of a firearm as a serious violent felon, Level 4 felonies; and his adjudication as an habitual offender.

[2] We reverse.

ISSUES

[3] Zanders raises three issues on appeal, two of which we find dispositive and which we restate as:

(1) Whether the trial court abused its discretion by denying Zanders' motion for mistrial after the State elicited an improper in-court identification of Zanders by a witness; and

(2) Whether the warrantless seizure of Zanders' cell phone provider's records, which included the location data of Zanders' cell phone, violated his Fourth Amendment Rights.

FACTS AND PROCEDURAL HISTORY

[4] On January 31, 2015, at approximately 9:00 p.m., an African American male pulled up at a local ice cream parlor in Lawrenceburg, Indiana, driving a red Pontiac G6. He entered the parlor and asked for directions to Whitey's Liquor Store. At 9:17 p.m., a masked gunman entered Whitey's Liquor Store. Kenneth Butler (Butler), the store clerk, noticed the gunman enter the store, wearing a dark hooded sweatshirt, dark gloves, a white mask, and carrying a black pistol. The gunman demanded the cash from the store's register. Butler filled a brown paper bag with the money, and was then instructed to also gather all of the store's Newport cigarettes and two bottles of Patron tequila. The gunman ordered Butler to hand him the store's telephone, which he ripped apart, and told Butler to lie on the floor. After Butler obeyed, the gunman left the store. Butler notified the police.

[5] On February 6, 2015, Danielle Pruitt (Pruitt) was working at J & J Tiquor Store in Dillsboro, Indiana. At approximately 9:00 p.m., Pruitt received a phone call, with an Ohio area code and with the caller inquiring about the store's closing time. Pruitt informed the caller that the store would close at 10:00 p.m. Pruitt joked to the other employee working with her that evening, Lisa Huddleston (Huddleston), that the caller had “better hurry” if they were going to get to J & J Tiquor's prior to closing time. (Transcript p. 218). Within thirty minutes, an African American male, wearing a gray hooded sweatshirt, gray sweatpants with a navy blue Polo horse logo, white tennis shoes, and black gloves entered the store. He was armed with a black pistol. The gunman immediately pulled a mask over his face upon entering and demanded money. At his command, Pruitt grabbed a bag and stuffed it with the money from the store's three registers. The gunman then grabbed the store's phone and Huddleston's cell phone. Both phones were later found outside. The women were told to lay on the floor. Before leaving the store, the gunman took a bottle of 1800 Silver tequila from the shelf. As soon as Pruitt and Huddleston heard the gunman exit the store, Huddleston hit the store's panic button and Pruitt locked the doors. Kelly Curry (Curry) lived across from J & J Liquor store. At the time of the robbery, Curry had stepped onto her third floor balcony to smoke a cigarette. She noticed a man dressed in a gray sweat suit run around her building and enter a red Pontiac.

[6] Detective Garland Bridges (Detective Bridges) of the Dearborn County Sheriff's Department responded to the call from J & J Liquor store and spoke with Pruitt. Pruitt informed the Detective about the phone call with Ohio area code. After Detective Bridges relayed the telephone number to Detective Carl Pieczonka (Detective Pieczonka), Detective Pieczonka entered the phone number into the Facebook search engine. The only result from this search was Zanders' Facebook page. The public postings on the page showed a photograph of various denominations of U.S. currency, posted at approximately 11:30 a.m. on the morning after the J & J Liquor store robbery. Another picture of currency was uploaded at approximately 5:00 a.m. after the robbery. A third photograph depicted a bottle of Patron tequila, posted the day after the Whitey's robbery and taken in Zanders' mother's residence, located in Ohio. Zanders' Facebook page also publicly included a video taken in Zanders' mother's home and posted the morning after the J & J Liquor store robbery. The recording starts in the kitchen, showing a bottle of 1800 Silver tequila, then travels down the hallway to a bed with a pile of money and personal effects.

[7] Based on the information from the Facebook page, Zanders was placed under surveillance. Police officers located Zanders in the vicinity of his mother's residence in Ohio, the day after the J & J Liquor store robbery while driving a red Pontiac G6. After Zanders committed a traffic violation, he was pulled over and arrested for driving with a suspended license. Detective Bridges and another officer travelled to Ohio to interview Zanders. During the course of the interview, Zanders denied ever having been in Indiana. He told the officers that his mother owned the red Pontiac and that he drove the vehicle all day on the day after J & J Liquors was robbed. Zanders elaborated that he smoked Newport cigarettes and likes to drink Patron tequila. To explain his Facebook photographs, Zanders told the officers that the money was his mother's rent money as well as casino winnings. He terminated the interview when he was accused of armed robbery.

[8] While Zanders was being interviewed, Detective Bridges made an emergency request to Zanders' cell phone provider (Provider) to secure the records associated with Zanders' cell phone number. Based on this request, Provider supplied Detective Bridges with Zanders' call and cell-site location data for the previous thirty days. From the historical cell-site location data, Detective Bridges discovered that Zanders' phone was used to call Whitey's on the day of the robbery at 7:42 p.m. while being in a cell-site sector covering Zanders' mother's residence. The data also showed that the cell phone received a call nine minutes prior to the robbery at Whitey's. At this time, the cell phone was located in the same cell-site sector as Whitey's. Approximately thirty minutes after the robbery, the cell phone was back in the same cell-site sector as Zanders' mother's residence. With respect to the J & J Liquor store robbery, the records established that Zanders' cell phone was used to place a 9:09 p.m. call to J & J Liquors while located in the same cell-site as the liquor store. Within an hour of the robbery, the cell phone was again located in the same cell-site sector as Zanders' mother's home.

[9] Based on the historical location data disclosed by the Provider, a search warrant for Zanders' mother's residence and his brother's home were sought, secured, and executed. At his mother's house, the officers discovered luggage with cash inside next to a black glove with a Bengals emblem. In the same room, the officers also found a dark-blue hooded sweatshirt, a black stocking cap, and a white mesh mask. In the kitchen, the officers located a bottle of 1800 Silver tequila bearing a price tag which appeared identical to the price stickers used by J & J Liquors, but none of the fingerprints on it matched Zanders. An empty pack of Newport cigarettes bearing an Indiana tax stamp was found in the kitchen garbage can. In Zanders' brother's residence, the officers discovered a box of Patron tequila, cash in a shoebox in the master bedroom, a black handgun in the hallway closet, and a pair of gray Polo sweatpants and sweat shirt.

[10] On February 9, 2015, the State filed an Information charging Zanders with one Count of robbery with a deadly weapon, a Level 3 felony. Three days later, on February 12, 2015, the State amended its Information, adding a second Count of robbery with a deadly weapon, a Level 3 felony, as well as two Counts of unlawful possession of a firearm by a serious violent felon, Level 4 felonies. At the same time, the State filed a habitual offender enhancement.

[11] After charges were filed, Zanders made a court appearance that became part of a video news story posted on Facebook. Tasha West (West) viewed this video approximately one week after the robbery at Whitey's. West recalled that at the time of the Whitey's robbery, she was in the drive-thru lane at Gold Star Chili, which is located in the same strip mall as Whitey's. West was waiting for her order when she saw a black male cross in front of her car on foot. “[H]e was acting weird with his pants ... like something was in his pants and he was trying to hold his pants up[;]” he was wearing his hair in dreadlocks or corn rows. (Tr. pp. 434–35). After seeing the Facebook video of Zanders, she became convinced that Zanders was the black male walking in front of her vehicle on the night of Whitey's robbery.

[12] On July 21 through July 23, 2015, the trial court conducted a bifurcated jury trial. During the first stage of the trial, Zanders presented a defense of mistaken identity. He pointed out that the car from Whitey's robbery did not match his mother's Pontiac, he defended against West's identification, and he objected to the State's use of the historical location data obtained from Provider. At the close of the evidence, the jury convicted Zanders of the two Counts of robbery with a deadly weapon and two Counts of unlawful possession of a firearm by a serious violent felon. Zanders pled guilty to being a habitual offender during the second phase of his trial. On September 8, 2015, the trial court sentenced Zanders to sixteen years each on the two Counts of robbery with a deadly weapon and...