Wednesday, April 2, 2014

Murder, cell phones and a trip to the mall.

The information generated by your cell phone usage is not private, at least not from the police. In Williams v. State, reported on February 24, 2104, the Maryland Court of Special Appeals confirmed that your cell phone records really are not private, whether you are under arrest, or not.

Why not? Because every phone number received or dialed, and the owner of those numbers, is available to the police by direct inquiry to the cell phone provider. The cell phone company is an "independent source." And under Maryland criminal law, where information is equally available to police from an independent source, it will excuse improper seizure by police of the same information out of your cell phone.

The story behind the case is gruesome, and a bit scary. The victim, 19 year old Rodney Pridget, was shopping at the Towson Town Center Mall with his girlfriend. They made the same stops and detours through the mall that any one of us would have made on a casual shopping trip. Nordstroms Department Store was their last stop before leaving the mall, through the adjacent parking garage.

The couple had no idea that five people, affiliated with a gang, had been tracking them through cell phone calls, as they were shopping.

In the garage, Rodney was murdered in a hail of gun fire that inflicted eight bullet wounds to his head, torso and arms. The ferocity of the attack was summarized by one of the shooters, who called another participant to say "we tore his ass up."

When police arrived, a witness pointed out a suspect running up and down the garage stairs (looking for the getaway car that had abandoned him) while talking frantically into a cell phone. That young man was Mr. Williams.

Mr. Williams was cuffed and searched.  His cell phone was confiscated. When a witness could not positively identify Mr. Willliams, the cuffs were removed. But the cell phone was not returned to him.

Mr. Williams was taken to the police station for more questioning, while being told he was not formally under arrest, but was simply being questioned.
"It was only later that evening, when Officer Jednorski was in the screening room to observe the appellant's interview with Detective Lambert, that Officer Jednorski looked down at the cellphone whenever it would ring and then jotted down the numbers from which the calls had been placed. "
The phone was returned to Mr. Williams when he later left the police station.

Mr. Williams and others were charged. Mr. Williams was the one who ordered the murder, and he was convicted of first degree premeditated murder. He did not appeal from the finding of his guilt.  He appealed the trial court failure to suppress information taken from his cell phone- the numbers and identities of his fellow co-conspirators and murderers.

And while some find it distasteful that a convicted murder should have any appeal rights, this is an important issue for all of us who use cell phones- Can the police seize them and use information found on them against us?

It is pretty settled in Maryland that when you are under arrest, the police absolutely are authorized to search through your cell phone.
"If the thing seized as an incident of an arrest turns out to be an instrumentality of crime (a weapon), a fruit of crime (stolen goods), contraband, or other evidence, it may be retained even after the arrest to which its search and seizure were incident has itself come to an end. If none of those categories is satisfied before the arrest is terminated, however, there is no longer a justification for retaining the property of the former arrestee. The property should be returned and is not vulnerable to further examination."
In Mr. Williams' case, the cuffs had been removed from Mr. Williams at the parking garage, before he was transported to the police station for questioning.  He had been "under arrest" when the cell phone was taken, but he had been "un-arrested" before traveling to the police station. And yet, the police maintained possession of his phone and mined for information while he was being questioned. 

So, do you think the issue was resolved based on the court's analysis of whether Mr. Williams was "under arrest" at the time the phone was mined for data? No. The court relied upon the broad application of the "independent source" doctrine to rule no-harm-no foul.
"When the police subsequently asked the phone company for the appellant's cellphone records, even assuming they needed his cellphone number to make the initial request, they had it from the independent source as well as from looking at the cellphone itself. This is a classic application of the independent source principle."
* * * *
"At trial, Detective Lambert and Detective Chuck Gruss provided the jury
with detailed descriptions of the cellphone records not only of the appellant but also of Jermell Brandon, William Ward, Crystal Harris, and Marilyn "Baby Sis" Hollemand, all of whom were in regular contact with each other before, during, and after the shooting of Rodney Pridget. This detailed analysis was based on the telephone company records, not on the observations of Officer Jednorski. The source of the information was an independent source not subject to Fourth Amendment exclusion. Thus, the independent source alternative route takes us safely around the search incident quagmire.3 Evidence of the various phone calls was properly not suppressed."
If there is an independent source for your cell phone information, regardless of whether the information was first discovered on your phone, or through the independent source, the evidence need not be suppressed.  You simply have no practical expectation of privacy in your phone records....ever.