Zanders v. State, 15S01-1611-CR-571

• Citation: 73 N.E.3d 178
• Decision Date: 04 May 2017
• Docket Number: No. 15S01-1611-CR-571,15S01-1611-CR-571
• Parties: Marcus ZANDERS, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
• Court: Supreme Court of Indiana

73 N.E.3d 178

Marcus ZANDERS, Appellant (Defendant),

v.STATE of Indiana, Appellee (Plaintiff).

No. 15S01-1611-CR-571

Supreme Court of Indiana.

May 4, 2017

Attorneys for Appellant : Leanna K. Weissmann, Lawrenceburg, Indiana, David M. Shapiro, Chicago, Illinois

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Stephen R. Creason, Tyler G. Banks, Deputy Attorneys General, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 15A01-1509-CR-1519

Rush, Chief Justice.

Cell phones—once figments of science fiction—now live in most Americans' pockets and purses. These devices are double-edged swords, increasing convenience at the expense of privacy. Each time they make or receive calls, they leave a trail of digital crumbs known as historical cell-site location information (CSLI)—business records kept by service providers identifying which cell towers routed which communications. That CSLI is the focus of this case, which tests search-and-seizure protections under the Federal and Indiana Constitutions.

Here, in an effort to locate Marcus Zanders—an armed-robbery suspect at large—police asked his cell-phone service provider, Sprint, to provide historical CSLI. At Zanders's trial, the State presented that CSLI, along with a detective's explanatory testimony. Following his convictions on four robbery-related counts, Zanders appealed arguing that obtaining the CSLI violated his Federal and State Constitutional rights, and that the detective improperly testified as an expert witness. We disagree.

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. We hold that this rule, the "third-party doctrine," applies here, so Zanders had no reasonable expectation of privacy in Sprint's historical CSLI. 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. Finally, since the detective sponsoring the CSLI at trial simply used his training to summarize those records, he properly testified as a skilled witness. We accordingly affirm Zanders's convictions.

Facts and Procedural History

On the evening of January 31, 2015, a masked man walked into Whitey's Liquor Store in Lawrenceburg and pointed a handgun at the cashier's face. The gunman grabbed cash, Newport cigarettes, and two bottles of Patron Tequila before disappearing into the night.

Six days later, on February 6, a similar robbery happened at J & J Liquor Store in nearby Dillsboro. Around 9:00 p.m., J & J's phone rang—someone with an Ohio number asking what time they closed. A half-hour later, a masked gunman barged in, took cash and 1800 Tequila, and sped off in a red Pontiac G6.

The next morning, police plugged that Ohio number into Facebook's search engine and the top result was Marcus Zanders's publicly accessible profile. That profile featured a flurry of multimedia posts from the day after each robbery. On the morning after the Whitey's robbery, for example, Zanders posted a picture of a Patron bottle. And on the morning after the J & J robbery, Zanders posted several pictures of cash and a video tour of his Mother's apartment. The tour began with a bottle of 1800 Tequila in the kitchen and ended with a pile of cash in a bedroom.

Based on this Facebook information, Indiana police began to search for Zanders and asked Ohio police for assistance. At 1:57 p.m. the same day, an Indiana detective faxed a request to Zanders's cell-service provider, Sprint, seeking historical CSLI business records identifying which cell towers handled Zanders's calls for the past thirty days. But just two minutes later—at 1:59 p.m.—the search was over: Ohio officers located Zanders driving a red Pontiac in Cincinnati. They arrested him for driving with a suspended license and found a cell phone in his pocket that had the Ohio number used to call J & J.

Indiana detectives promptly traveled to Ohio to interview Zanders. Zanders told them that his mother owned the red Pontiac G6, that he smoked Newport cigarettes and enjoyed Patron Tequila, and that he had his cell phone the entire day of February 6. When asked about some of his Facebook posts, Zanders claimed that the cash in the pictures was his mother's rent money and his casino winnings. Zanders also said he had never been to Indiana and, after learning he was being accused of armed robbery, he terminated the interview.

Police then obtained and executed search warrants for Zanders's mother's and brother's apartments. In the searches, police found luggage and a shoe box containing cash, clothing matching what the robber wore, a handgun, Newport cigarettes with an Indiana tax stamp, a box of Patron Tequila, and a bottle of 1800 Tequila with a price tag identical to those used by J & J.

The State charged Zanders with two counts of robbery with a deadly weapon and two counts of unlawful possession of a firearm by a serious violent felon. The State also filed a habitual offender enhancement.

At Zanders's jury trial, Sprint's historical CSLI was admitted into evidence over Zanders's objection. The State also introduced testimony from Detective Carl Pieczonka, who had analyzed the CSLI. Detective Pieczonka explained that Sprint collects CSLI when a cell phone makes or receives a call. He elaborated that Sprint identifies the particular towers, and even the sides of those towers, that connect the beginning and end of each call. He then detailed what the CSLI revealed about Zanders's cell phone. Within minutes of each robbery, the phone was serviced by towers near (and sides facing) the liquor stores. And shortly after each robbery, the phone was serviced by towers near (and sides facing) Zanders's mother's apartment.

The jury convicted Zanders on all four counts, and he pleaded guilty to the habitual offender charge. The court imposed an aggregate sentence of sixty-one years.

Zanders appealed, arguing that (1) the trial court abused its discretion in denying his motion for mistrial based on a witness's improper in-court identification, (2) police obtained the CSLI in violation of his federal and Indiana constitutional rights, and (3) Detective Pieczonka improperly testified about the CSLI as an expert witness.

A split panel of the Court of Appeals reversed. Zanders v. State , 58 N.E.3d 254 (Ind. Ct. App. 2016). The majority first held that the trial court did not abuse its discretion in denying the motion for mistrial because the improper in-court identification did not place Zanders in grave peril. Id. at 261. It then held that obtaining the historical CSLI without a warrant violated the Fourth Amendment, reasoning that Zanders had a reasonable expectation of privacy in the records. Id. at 265–67. In reaching this conclusion, the majority declined to apply the third-party doctrine—the principle that a person does not have Fourth Amendment protection in information voluntarily provided to third parties. Id. at 265. And finding the Fourth Amendment dispositive, the majority did not reach Zanders's Indiana constitutional claim. Id. at 261 n.1. Judge Kirsch dissented, believing the third-party doctrine did apply based on the overwhelming weight of federal authority. Id. at 268 (Kirsch, J., dissenting).

We granted the State's petition to transfer, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).¹

Standard of Review

Zanders's first argument—that obtaining this historical CSLI without a warrant violated both the Federal and Indiana Constitutions—raises questions of law we review de novo. McIlquham v. State , 10 N.E.3d 506, 511 (Ind. 2014) (citing Garcia-Torres v. State , 949 N.E.2d 1229, 1232 (Ind. 2011) ). His second argument—that admitting Detective Pieczonka's testimony on that CSLI was error—raises an evidentiary issue we review for an abuse of discretion, which occurs when the trial court's ruling goes "clearly against the logic and effect" of the facts and circumstances. Williams v. State , 43 N.E.3d 578, 581 (Ind. 2015) (citing Carpenter v. State , 786 N.E.2d 696, 703 (Ind. 2003) ).

Discussion and Decision

I. Police Did Not Violate the Federal or Indiana Constitutions by Gathering Historical Active Cell-Site Location Information without a Warrant .

Zanders argues that police violated his Fourth Amendment and Article 1, Section 11 rights by obtaining historical CSLI from Sprint without a search warrant. The State counters that neither Constitution required a warrant under these circumstances. Specifically, it argues that the Fourth Amendment allowed police to ask a third party for information Zanders had already voluntarily relinquished, and that Section 11 allowed police to take the minimally intrusive step of gathering historical CSLI from Sprint to prevent an armed-robbery suspect from striking again.

We begin by providing some background about CSLI. In general, cell-service providers gather two types of CSLI: network-based (from the towers handling the phone's calls) and handset-based (from the phone itself). Zachary Ross, Note, Bridging the Cellular Divide: A Search for Consensus Regarding Law Enforcement Access to Historical Cell Data , 35 Cardozo L. Rev. 1185, 1193–94 (2014). These sources provide different kinds of location data, but neither reveals the content of communications. See id. at 1192–94.

The first type of CSLI—network-based—may take several different forms. R. Craig Curtis et al., Using Technology the Founders Never Dreamed of: Cell Phones as Tracking Devices and the Fourth Amendment , 4 U. Denv. Crim. L. Rev. 61, 63 (2014). For example, it may be either historical or real-time—historical when it shows past tower locations, and real-time when it shows current tower locations. Jonathan Bard, Note, Unpacking the Dirtbox: Confronting Cell Phone...