Zanders v. State

• Decision Date: 08 March 2019
• Docket Number: Supreme Court Case No. 15S01-1611-CR-571
• Citation: 118 N.E.3d 736
• Parties: Marcus ZANDERS, Appellant (Defendant) v. STATE of Indiana, Appellee (Plaintiff)
• Court: Indiana Supreme Court

118 N.E.3d 736

Marcus ZANDERS, Appellant (Defendant)

v.STATE of Indiana, Appellee (Plaintiff)

Supreme Court Case No. 15S01-1611-CR-571

Supreme Court of Indiana.

Argued¹ : September 26, 2018

Decided: March 8, 2019

ATTORNEYS FOR APPELLANT: Leanna Weissmann, Lawrenceburg, Indiana, David M. Shapiro, Roderick & Solange MacArthur Justice Center, Northwestern Pritzker School of Law, Chicago, Illinois, Tony Walker, The Walker Law Group, P.C., Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Stephen R. Creason, Chief Counsel, Tyler Banks, Deputy Attorney General, Indianapolis, Indiana

On Remand from the Supreme Court of the United States, No. 17-166

Rush, Chief Justice.

As technology advances, what was once the stuff of science fiction may enter the canon of constitutional law. Illustrating this in Carpenter v. United States , 585 U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), the Supreme Court of the United States addressed a question concerning cell phone location information: When the State accesses a person's historical cell-site location information (CSLI), has the State conducted a search under the Fourth Amendment?

The Court's answer: generally, yes. Carpenter made clear that seven days' or more worth of CSLI accessed constitutes a search—and also left open the possibility that accessing even fewer days of CSLI could constitute a search. This means that the State generally must obtain a warrant before procuring a person's CSLI.

When it decided Carpenter , the Court also granted certiorari in the case before us, vacated our prior decision, and remanded the case to us for reconsideration in light of Carpenter . We ordered supplemental briefing and oral argument.

We now hold that accessing Marcus Zanders's CSLI was a Fourth Amendment search under Carpenter , but even if the CSLI evidence should have been excluded, the error was harmless beyond a reasonable doubt. We thus affirm Zanders's convictions.

Facts and Procedural History

In the winter of 2015, police were investigating two armed robberies that had occurred less than one week apart at liquor stores in Dearborn County, Indiana.

The first one occurred around 9:17 p.m. on Saturday, January 31, at Whitey's Liquor Store in Lawrenceburg, Indiana. A lone, masked man entered the store and pointed a black handgun at the store clerk, Kenny Butler. The man demanded cash from the register; Newport cigarettes; Patrón tequila; and the store's phone, which he ripped apart. He ordered Butler to lie on the floor, and then left.

The second robbery occurred the following weekend at J & J Liquor in Dillsboro, Indiana. Around 9:26 p.m. on Friday, February 6, a lone, masked man entered the store and pointed a black handgun at the store's two clerks, Danielle Pruitt and Lisa Huddleston. He demanded cash from the registers and whatever phones they had in the store. He took the cash and phones, ordered the clerks to lie on the floor, went to the store's tequila section, and left. Once he was gone, the women noticed that a 1.75-liter bottle of "1800 Silver" tequila was missing from the liquor shelves.

As part of their investigations, police interviewed eyewitnesses and reviewed the security-camera video footage from each robbery. One witness, who lived across the street from J & J, had seen a man run away from the liquor store right after the robbery, with a bottle tucked under his arm. The witness watched the man hop into a red Pontiac G6 and drive away.

Also talking with Pruitt on the night of the J & J robbery, the police learned that shortly before the store was robbed, Pruitt had answered a phone call—someone asking when the store would close that night. She noticed that the call came from an Ohio number, which she supplied to police using the caller-ID function on J & J's phone.

The next morning, police plugged that phone number into Facebook's search function. The search returned a profile picture and account page for "Marcus Zanders." Posted on that page were photos and a video that had been uploaded using the phone that had called J &J and that was linked to the Facebook page. Those posts included photos of piled cash and a bottle of Patrón (posted the day after the Whitey's robbery), and a video of piled cash and a 1.75-liter bottle of 1800 Silver tequila (posted the morning after the J & J robbery).

Based in part on this information, Indiana police enlisted Ohio law enforcement officers for help locating Marcus Zanders. They also submitted an "Emergency Request Form" to Sprint, asking for GPS location information and "Call Detail Records WITH Cell Sites (last 30 Days)" for the phone number that called J & J and that was linked to the Marcus Zanders Facebook account. On the form, police provided a brief explanation of the emergency as "multiple state armed robber w[ith] handgun displayed," because they suspected the Dearborn County robberies were connected to a robbery in Kentucky. The request was transmitted to Sprint by 1:57 p.m. on February 7, about sixteen-and-a-half hours after the J & J robbery.

About two minutes later, at 1:59 p.m., Ohio police spotted and began to surveil a red Pontiac G6 near Zanders's mother's apartment in Cincinnati. The vehicle was registered to Zanders's mother, Michelle. Zanders got out of the car at the apartment and went inside. He then returned to the car and drove away. The officers soon stopped Zanders for a traffic violation and arrested him for operating a vehicle without a valid license. When arrested, Zanders had on his person a cell phone with the number that called J & J and that was connected to the Marcus Zanders Facebook account.

The same day, Sprint supplied the requested phone records, including the historical CSLI; and police soon obtained warrants to search the two residences where Zanders was staying: his mother's and his brother's. Searching those residences, police found clothing and other items (cash, Patrón, 1800 Silver tequila, a black handgun) corresponding to those involved in the Whitey's and J & J robberies.

The State charged Zanders with two counts of robbery with a deadly weapon—one for the Whitey's robbery, and one for the J & J robbery—and two counts of unlawful possession of a firearm by a serious violent felon. At a jury trial, the State sought to present the Sprint CSLI records, along with a police officer's testimony about those records. The court admitted the evidence over Zanders's objection.

The jury found Zanders guilty of all four counts. He appealed his convictions, arguing in part that the State's warrantless procurement of his CSLI records violated his rights under the Fourth Amendment and under Article 1, Section 11 of the Indiana Constitution, and that the admission of the CSLI evidence was reversible error.

We rejected Zanders's arguments and affirmed the convictions. Zanders v. State , 73 N.E.3d 178 (Ind. 2017), vacated by Zanders v. Indiana , ––– U.S. ––––, 138 S.Ct. 2702, 201 L.Ed.2d 1092 (2018). On the Fourth Amendment issue, we reasoned that—in the absence of clarification from the Supreme Court of the United States, and in line with the majority of federal circuits to have addressed the question at the time² —the third-party doctrine applied to CSLI.³ Id. at 185. So State access of historical CSLI was not a Fourth Amendment "search," and the State did not need a warrant to access the CSLI records. Id. On the state constitutional issue, we found no violation because the police conduct was reasonable under the totality of circumstances. Id. at 186.

Zanders petitioned the Supreme Court of the United States for a writ of certiorari, based on our Fourth Amendment decision. While his petition was pending, the Supreme Court decided Carpenter , which established that police access to historical CSLI—certainly when seven days' worth or more is accessed, and possibly when fewer days' worth is accessed—is a search under the Fourth Amendment; the third-party doctrine does not apply. Carpenter , 138 S.Ct. at 2217 & n.3, 2220. So unless the search falls under an exception to the Fourth Amendment's warrant requirement, the State must obtain a warrant before accessing the CSLI. See id. at 2222–23.

Having decided Carpenter , the Supreme Court granted Zanders's petition for certiorari, vacated our decision based on the Fourth Amendment, and remanded the case to us for reconsideration in light of Carpenter . We ordered additional briefing and oral argument, and now address the parties' arguments.

Zanders argues that in light of Carpenter , the CSLI records and testimony should have been excluded, and this Court should vacate his convictions and remand for a new trial.⁴

The State argues that Carpenter does not require reversal for a new trial, and that Zanders's convictions should be affirmed. The State reasons that, unlike in Carpenter , exigent circumstances here justified the warrantless search of the CSLI; and, even if a warrant was required, the admission of CSLI was harmless beyond a reasonable doubt.

Standard of Review

We review decisions to admit or exclude evidence for abuse of discretion affecting the defendant's substantial rights. See United States v. Rainone , 816 F.3d 490, 497 (7th Cir. 2016) ; Williams v. State , 43 N.E.3d 578, 581 (Ind. 2015). Here, whether the trial court abused its discretion by admitting the CSLI evidence depends on a legal determination, which we review de novo. See United States v. Figueroa-Espana , 511 F.3d 696, 701 (7th Cir. 2007) ; McIlquham v. State , 10 N.E.3d 506, 511 (Ind. 2014). We will conclude that a constitutional error resulted in prejudice unless we are "able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Discussion and Decision

We first address whether the State's access to CSLI for Zanders's phone was a Fourth Amendment search under Carpenter . Deciding that it was, we next apply harmless-error analysis to the admission of the CSLI...