                                                                         FILED
                                                                    Aug 04 2016, 8:43 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Leanna Weissmann                                           Gregory F. Zoeller
Lawrenceburg, Indiana                                      Attorney General of Indiana
                                                           Tyler G. Banks
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Marcus Zanders,                                            August 4, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           15A01-1509-CR-1519
        v.                                                 Appeal from the Dearborn
                                                           Superior Court
State of Indiana,                                          The Honorable Sally McLaughlin,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           15D01-1502-F3-3



Riley, Judge.




Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016                    Page 1 of 29
                                    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,

      Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 2 of 29
      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 Liquor 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 Liquor’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


      Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 3 of 29
      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

      Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 4 of 29
      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,


      Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016    Page 5 of 29
       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.

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 6 of 29
[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 six years and three years respectively on the two Counts of

       unlawful possession of a firearm. The sentences were ordered to run


       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 7 of 29
       consecutively. Zanders’ sentence for one Count of the robbery convictions was

       enhanced by twenty years for the habitual offender adjudication. In sum,

       Zanders received an aggregate sentence of sixty-one years.


[13]   Zanders now appeals. Additional facts will be provided as necessary.


                                     DISCUSSION AND DECISION


                                              I. West’s Identification


[14]   During the trial, Zanders objected to West’s in-court identification of him as

       Whitey’s robber based on a video broadcast she had viewed one week after the

       robbery but did not notify the State of until a week prior to trial. When the

       State asked West whether “the individual that [she] saw [was] in the courtroom

       here today[,]” Zanders objected, noting:

               I’m going to object to this identification. We took deposition,
               these officers said that nobody was presented with a line up to try
               to pick my client out because no witness had seen my client or
               would be able to identify the client. The police said she couldn’t
               see his face. They said nobody could do this. []. I specifically
               asked him, is there anybody out there that’s going to be able to
               come in that courtroom, look over at my client and say that’s the
               man I saw doing this and they said no. It’s in the depositions.
               This lady . . . it’s all this time later, he was arrested a week later.
               He’s never . . . she’s never been presented a line up. To come in
               this courtroom today, he’s the only black man in here. He’s
               sitting over there . . .


       (Tr. p. 436). The State admitted that only in



       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016     Page 8 of 29
               preparation for trial last week she indicated that she had seen the
               perk [sic] walk of [Zanders] on the Facebook page and when she
               saw him she realized that was the individual she saw that night
               [in the drive-thru].


       (Tr. p. 437). The trial court sustained Zanders’ objection and did not allow

       West “to identify him here in the courtroom based on that time.” (Tr. p. 437).

       The trial court clarified that it was not allowing an in-court identification

       because “there’s only [] one (1) suspect sitting here and I don’t know based on

       seven (7) months later, that has sufficient reliability on [West] pointing him out

       today.” (Tr. p. 446).


[15]   Due process prohibits testimony of out-of-court identifications conducted in an

       unnecessarily suggestive manner. Parker v. State, 358 N.E.2d 110, 112 (Ind.

       1976). Nevertheless, our supreme court has also repeatedly held that “an in-

       court identification by a witness who has participated in an impermissibly

       suggestive out-of-court identification is admissible if the witness has an

       independent basis for the in-court identification.” Brown v. State, 577 N.E.2d

       221, 225 (Ind. 1991), reh’g denied, cert. denied 506 U.S. 833 (1992). “The prior

       identification must not have been made under circumstances so suggestive as to

       produce ‘a very substantial likelihood of irreparable misidentification.’” Parker,

       358 N.E.2d at 112 (citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d

       401 (1972)). The parties do not contest the trial court’s determination that

       West’s in-court identification of Zanders would be unreliable or that West did

       not have an independent basis for an in-court identification. Rather, the trial

       court did allow, which Zanders now contests, West to testify that she saw

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016    Page 9 of 29
       Zanders on a news broadcast posting on Facebook. Specifically, the trial court

       observed

               [h]owever, the other evidence that has been presented is that
               approximately one (1) week after she made this observation
               while waiting in the Gold Star Chili drive-thru, she did see a
               Facebook type video from some news footage of the suspect
               walking across the courthouse and [] I believe she has, from what
               I’m hearing, it sounds like there was . . . there is reason to believe
               that she observed the way he was walking and that she believes
               then at that time that that was the person she had observed. This
               will be open to cross-examination. It will be up to the jury
               whether they choose to believe or not believe, [], she is not going
               to be making an in-[c]ourt identification. [] In addition, [] you
               are to refrain from [] speaking other than this was news coverage
               of him appearing at a [c]ourt hearing walking through the
               courthouse. There’s not to be any reference of [] anything further
               than that and [] then [Zanders] as that evidence is attempted to
               be presented if it is, you can make any further objection.


       (Tr. pp. 446-47).


[16]   After the trial court’s limiting instruction, the State resumed its questioning of

       West. It elicited the following testimony:

               [State]: I’m directing your attention to [] approximately a week
               after you observed the black male in the parking lot at, while you
               were at Gold Star Chili. Okay? [D]id you see any [] media
               footage, video footage, of the Defendant on a Facebook [] from
               Eagle 99.3?


               [West]: Yes, sir.




       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 10 of 29
        [State]: Okay and did you see in that video footage a black male
        being, walking on that video footage?


        [West]: Yes, sir.


        [State]: And when you observed that, what do you recall?


        ****


        [West]: [W]hen the camera was angled, it showed the person
        being escorted and as the camera was facing I seen the person
        walk directly in front of the camera and it was just like sitting in
        my car watching him walk across the street, or across, in front of
        my car up into the U.S. Bank.


        [State]: [I]n seeing the video footage of the image of the person
        plus the walking was exactly as you recall it on January 31st.


        [West]: Yes, sir.


        [State]: And the person in the Facebook video was identified in
        that Facebook posting as [Zanders].


        [West]: Yes, sir.


        [State]: Okay.


        [Defense]: I’m going to object, Your Honor. * * * * I think he
        just had her identify the Defendant. Saying that she looked up
        and said he’s here in the courtroom. She said his name. I’m
        asking for a mistrial.



Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 11 of 29
       (Tr. pp. 450-52). The trial court denied Zanders’ request for a mistrial.


[17]   Zanders now contends that the trial court abused its discretion when it denied

       its motion for a mistrial. Specifically, he argues that the State had violated the

       trial court’s limited instruction of West’s testimony. Whether to grant or deny a

       motion for mistrial is a decision left to the sound discretion of the trial court.

       Agilera v. State, 862 N.E.2d 298, 307 (Ind. Ct. App. 2007), trans. denied. We will

       reverse the trial court’s ruling only upon an abuse of that discretion. Id. We

       afford the trial court such deference on appeal because the trial court is in the

       best position to evaluate the relevant circumstances of an event and its impact

       on the jury. Id. To prevail on appeal from a denial of a motion for mistrial, the

       appellant must demonstrate the statement or conduct in question was so

       prejudicial and inflammatory that he was placed in a position of grave peril to

       which he should not have been subjected. Id. We determine the gravity of the

       peril based upon the probable persuasive effect of the misconduct on the jury’s

       decision rather than upon the degree of impropriety of the conduct. Id. We

       have recognized that a mistrial is an extreme sanction warranted only when no

       other cure can be expected to rectify the situation. Id.


[18]   Zanders asserts that West’s identification of him as the robber is suspicious

       because her first description of the robber as having “corn rows” or dreadlocks

       did not correspond with Zanders’ hairstyle and she compared an unfettered

       man fleeing a crime scene with the “image of an inmate in custody shuffling out

       of a courtroom.” (Tr. p. 455; Appellant’s Br. p. 23). Pointing towards his

       defense of mistaken identity and the State’s circumstantial evidence, Zanders

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 12 of 29
       posits that West’s identification placed him in a position of grave peril. He

       maintains that West was so confident in “the police’s work that she dismissed

       her earlier image of the man with cornrows and replaced it with the clean cut

       Zanders.” (Appellant’s Br. p. 26).


[19]   However, we cannot conclude that the State’s elicited testimony amounted to

       misconduct that could be construed as the basis for a mistrial. The trial court

       ruled that an in-court identification was improper but that West could testify

       that the person who walked in front of her vehicle on the night of the Whitey’s

       robbery was the same person identified as Zanders in a Facebook news video

       posted one week later. The State and West complied with this limiting

       instruction during questioning. West’s elicited testimony does not amount to

       the prohibited in-court identification of Zanders. As noted by the State, a

       crucial piece is missing in the evidentiary chain. In court, West did not point to

       Zanders and informed the jury that she saw him on the night of the robbery,

       rather, it was left up to the jury, as the trier of fact, to bridge the gap between

       the person in the video identified as Zanders to the person in the courtroom.


[20]   West’s testimony was material and relevant: she placed a person she saw

       identified on a news broadcast near the scene of the crime at the time of the

       robbery. Building on his theory of mistaken identity, Zanders subjected West to

       a vigorous cross-examination. Whether to believe West’s testimony and out-of-

       court identification remained within the province of the jury who could assign it

       any weight considered appropriate. Accordingly, the State’s questioning of

       West did not amount to prejudicial and inflammatory conduct that placed

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 13 of 29
       Zanders in a position of grave peril. See Agilera, 862 N.E.2d at 307. Therefore,

       the trial court did not abuse its discretion in denying Zanders’ motion for a

       mistrial.


                                           II. Historical Location Data


[21]   The day after the J & J Liquor store robbery, Detective Bridges obtained

       Zanders’ cell phone records from Provider through an emergency request and

       without a warrant. These records included Zanders’ historical location data,

       i.e., the detailed records of his calls and cell-site location, as well as his GPS

       location. The trial court admitted these records at trial over Zanders’ objection.

       In an issue of first impression, Zanders now contends that the warrantless

       search of his cell phone’s historical location data as compiled by Provider

       violated the Fourth Amendment to the United States Constitution and Article

       1, Section 11 of the Indiana Constitution. 1


[22]   The Fourth Amendment to the United States Constitution protects “[t]he right

       of the people to be secure in their persons, houses, papers, and effects, against

       unreasonable searches and seizures. . .” “[T]he ultimate touchstone of the

       Fourth Amendment is ‘reasonableness[.]’” Brigham City v. Stuart, 547 U.S. 398,

       403,126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). We approach cases involving

       warrantless searches with the basic understanding that “searches conducted




       1
        Because we reverse the trial court’s ruling on a Fourth Amendment violation, we will not address Zanders’
       argument based on the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016                     Page 14 of 29
       outside the judicial process, without prior approval by judge or magistrate, are

       per se unreasonable under the Fourth Amendment—subject only to a few

       specifically established and well-delineated exceptions.” Arizona v. Gant, 556

       U.S. 332, 338, 129 S.Ct. 1017, 173 L.Ed.2d 486 (2009) (quoting Katz v. United

       States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote

       omitted)). Where there is no clear practice concerning the constitutionality of a

       search, the reasonableness of the search is judged by balancing “the degree to

       which it intrudes upon an individual’s privacy . . . and the degree to which it is

       needed for the promotion of legitimate governmental interests.” Wyoming v.

       Houghton, 526 U.S. 295, 299-300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).


                                                     A. Search


[23]   Focusing on the nature of the search, the State first asserts that Provider

       collected the historical location data from Zanders’ cell phone for its own

       records, and the State merely requested copies of those business records.

       Contrary to well-established Fourth Amendment doctrine, the State maintains

       that it “asked [Provider] for something they owned. [Provider] obliged. No

       search occurred.” (Appellee’s Br. p. 21).


[24]   A party may establish a Fourth Amendment search by showing that the

       government engaged in conduct that “would have constituted a ‘search’ within

       the original meaning of the Fourth Amendment.” United States v. Jones, 132

       S.Ct. 945, 950 n.3, 181 L.Ed.2d 911 (2012). “Search” originally was tied to

       common-law trespass and involved some trespassory intrusion on property.


       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 15 of 29
       See, e.g., Kyllo v. United States, 533 U.S. 27, 31-32, 212 S.Ct. 2038, 2042, 150

       L.Ed.2d 94 (2001). In 1967, the Supreme Court, by way of Justice Harlan’s

       concurring opinion, added a separate test—the reasonable-expectation-of-

       privacy test—to analyze whether a search occurred for purposes of the Fourth

       Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576

       (1967)). “Katz posits a two-part inquiry: first, has the individual manifested a

       subjective expectation of privacy in the object of the challenged search?”

       California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210

       (1986). “Second, is society willing to recognize that expectation as

       reasonable?” Id. Accordingly, like here, “even in the absence of a trespass, a

       Fourth Amendment search occurs when the government violates a subjective

       expectation of privacy that society recognizes as reasonable.” Jones, 132 S.Ct.

       at 955 (Sotomayor, J., concurring).


                                             B. Third Party Records


[25]   However, the State points out that in subsequently applying Katz’s tests, the

       Supreme Court held—in both United States v. Miller and Smith v. Maryland—that

       individuals have no reasonable expectation of privacy in certain business

       records owned and maintained by a third party business. In Miller, the

       government used defective subpoenas to obtain Miller’s financial records from

       his bank. United States v. Miller, 425 U.S. 435, 437-38, 96 S.Ct. 1619, 1621, 48

       L.Ed.2d 71 (1976). Faced with Miller’s claim that the government violated his

       privacy interests in the contents of the bank records, the Court determined that

       because such documents “contain only information voluntarily conveyed to the

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 16 of 29
       banks and exposed to their employees in the ordinary course of business,” the

       depositor lacks “any legitimate expectation of privacy” in this information. Id.

       at 442, 96 S.Ct. 1619. “[I]n revealing his affairs to another,” Miller assumed

       the risk “that the information [would] be conveyed by that person to the

       government.” Id. at 443, 96 S.Ct. 1619.


[26]   Likewise, in Smith, a telephone company, at the request of the police, utilized a

       pen register device to record the numbers dialed from Smith’s home phone.

       Smith v. Maryland, 442 U.S. 735, 737, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

       The Court determined that people generally understand that they must

       communicate the numbers they dial to the phone company and that the phone

       company has facilities for recording and storing this information permanently.

       Id. at 742, 99 S.Ct. 2577. Even if Smith had an actual expectation of privacy in

       the numbers he dialed, this would not be a “legitimate” expectation because he

       “voluntarily conveyed” the numerical information to the phone company and

       “exposed” the information to the company’s recording and storage equipment.

       Id. at 744, 99 S.Ct. 2577. In so doing, Smith “assumed the risk” that the

       company would disclose the information to law enforcement. Id.


[27]   Contrary to the State’s claim, Miller, Smith, and its progeny do not categorically

       exclude third-party records from Fourth Amendment protection. Rather, our

       Supreme Court merely held that a person can claim no legitimate expectation of

       privacy in information voluntarily conveyed to a third party. It is the act of

       voluntary conveyance—not the mere fact that the information winds up in the

       third party’s records—that demonstrates an assumption of risk of disclosure and

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 17 of 29
       therefore the lack of any reasonable expectation of privacy. We decline to

       apply the third-party doctrine in the present case because a cell phone user does

       not convey historical location data to his provider at all—voluntarily or

       otherwise—and therefore does not assume any risk of disclosure to law

       enforcement.


[28]   Unlike the bank records in Miller or the phone numbers dialed in Smith, cell-site

       or location data is neither tangible nor visible to a cell phone user. A cell phone

       user is not required to affirmatively enter his location when making a call or

       sending a message. Such information is rather “quietly and automatically

       calculated by the network, without unusual or overt intervention that might be

       detected by the target user.” United States v. Wheeler, -- F.Supp. 3d --- (E.D.

       Wisc. March 14, 2016) (quoting In re Application of U.S. for Historical Cell Site

       Data, 747 F.Supp.2d 827, 833 (S.D. Tex. 2010), vacated, 724 F.3d 600 (5th Cir.

       2013)). Cell phone use is not only ubiquitous in our society today but, at least

       for an increasing portion of our society, it has become essential for full cultural

       and economic participation. See Riley v. California, 134 S.Ct. 2473, 2484, 189

       L.Ed.430 (2014) (“[M]odern cell phones . . . are now such a pervasive and

       insistent part of daily life that the proverbial visitor from Mars might conclude

       they were an important feature of human anatomy.”).


[29]   A cell phone user’s understanding of how cellular networks generally function

       is beside the point. The more pertinent question is whether a user is generally

       aware of what specific cell-sites are utilized when their cell phones connect to a

       cellular network. It is the specificity of the historical location data that allows

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 18 of 29
       police officers to track cell phone users. While the cell phone was not originally

       conceived as a tracking device, law enforcement has effectively converted it to

       that purpose by monitoring cell-site data. As with a tracking device, this

       process is usually surreptitious and unknown to the phone user who—with the

       advent of the smart phone’s tracking capabilities—may not even be on the

       phone. The technique was described in United States v. Forest, 355 F.3d 942, 947

       (6th Cir. 2004), where DEA agents lost visual contact with two individuals

       under wiretap surveillance for cocaine trafficking. In order to reestablish visual

       contact, a DEA agent called the suspect’s cellular phone (without allowing it to

       ring) several times that day and used a provider’s computer data to determine

       which transmission towers were being hit by the phone. Id. This cell-site data

       revealed the general location of the suspect. Id. In practicality, the suspect’s

       cell phone functioned no differently than a traditional beeper device. See id. In

       the case at bar, Detective Pieczonka testified that Zanders’ location data sent by

       his cell phone was not only used “to determine a path of travel[,]” but could

       also establish whether Zanders “moved within the building.” (Tr. pp. 690,

       677).


[30]   Courts have recognized that not all private information entrusted to third-party

       providers of communications services is subject to warrantless government

       inspection. As far back as 1877, the Supreme Court recognized Fourth

       Amendment protection against warrantless inspection of the contents of mail

       entrusted to the postal service for delivery. Ex Parte Jackson, 96 U.S. 727, 733, 6

       Otto 727, 24 L.Ed. 877 (1877). The Court continued to recognize this


       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 19 of 29
       protection 90 years later in Katz by stating “What a person knowingly exposes

       to the public, even in his own home or office, is not a subject of Fourth

       Amendment protection . . . But what he seeks to preserve as private, even in an

       area accessible to the public, may be constitutionally protected.” Katz, 389 U.S.

       at 351-52. The Court held that “[o]ne who occupies [a public phone booth],

       shuts the door behind him, and pays the toll that permits him to place a call is

       surely entitled to assume that the words he utters into the mouthpiece will not

       be broadcast to the world.” Id. at 352. In the current digital age, courts have

       continued to accord Fourth Amendment protection to information entrusted to

       communications intermediaries but intended to remain private and free from

       inspection. Courts have, for example, deemed government inspection of the

       contents of emails a Fourth Amendment search but have declined to do the

       same for email address information used to transmit these emails. Compare

       United States v. Warshak, 631 F.3d 266, 287-88 (6th Cir. 2010) (holding that email

       subscribers enjoy a reasonable expectation of privacy in the content of their

       emails even though such content is accessible to Internet service providers), with

       United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (holding that

       government surveillance of a computer to discover email address information,

       IP addresses, and amount of data transmitted by email does not constitute a

       Fourth Amendment search).


[31]   Although historical location data is content-free, it is more than simple routing

       information. The cell-site data tracks a cell phone user’s location across specific

       points in time almost as detailed as a visual, in-person shadowing by police


       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016     Page 20 of 29
       officers would. Moreover, prior to obtaining the cell-site records, the

       government does not know how granular the location data in the records is. If

       Zanders had been constantly starting and terminating phone calls, then the

       State would have obtained a continuous stream of historical location data,

       approaching the information that can be gleaned from a GPS device or a

       beeper. See Wertz v. State, 41 N.E.3d 276, 285 (Ind. 2015) (the data on

       defendant’s GPS device is subject to Fourth Amendment protections); Forest,

       355 F.3d at 947.


[32]   For years, courts and commentators have begun to acknowledge the increasing

       tension, wrought by our technological age, between the third-party doctrine and

       the primacy that the Fourth Amendment doctrine grants to our society’s

       expectation of privacy. In her concurring opinion in Jones, Justice Sotomayor

       declared that the assumption that people lack reasonable privacy expectations

       in information held by third parties is “ill suited to the digital age, in which

       people reveal a great deal of information about themselves to third parties in the

       course of carrying out mundane tasks.” Jones, 132 S.Ct. at 957 (Sotomayor, J.,

       concurring). See also Kyllo v. United States, 533 U.S. 27, 35, 121 S.Ct. 2038,

       2044, 150 L.Ed.2d 94 (2001) (rejecting a “mechanical interpretation of the

       Fourth Amendment” in the face of “advancing technology”).


[33]   The extent of information that we expose to third parties has increased by

       orders of magnitude since the Supreme Court decided Miller and Smith. To

       now apply a rigorous application of Miller and Smith, as the State advocates,

       would create a rule that would preclude virtually any Fourth Amendment

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 21 of 29
       challenge against government inspection of third-party records. As Warshak

       suggests, Smith and Miller do not endorse a blind application of the third party

       doctrine in cases where information, in which there exists clearly reasonable

       privacy expectations, is recorded by a third party through an accident of

       technology. See Warshak, 631 F.3d at 287-88. “[I]f a new technology permits

       the government to access information that it previously could not access

       without a warrant, using techniques not regulated under preexisting rules that

       predate technology, the effect will be that the Fourth Amendment matters less

       and less over time.” Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth

       Amendment, 215 Harv. L. Rev. 476, 527 (2011).


[34]   The proliferation of cellular networks has left service providers with a

       continuing stream of increasingly detailed information about the locations and

       movements of network users. 2 Prior to this development, people generally had

       no cause for concern that their movements could be tracked to this extent. That

       new technology has happened to generate and permit retention of this

       information cannot by itself justify inspection by the government. At the same

       time, a cell phone user cannot be said to voluntarily convey to her service

       provider information that she never held but was instead generated by the




       2
         Service providers have begun to increase their network coverage using low-power small cells, called
       “microcells,” “picocells,” and “ femtocells” which provide service to areas as small as ten meters. Because
       the coverage area of the femtocells is so small, callers connecting to a provider’s network via femtocells can
       be located to a high degree of precision, sometimes effectively identifying individual floors and rooms within
       buildings. U.S. v. Davis, 785 F.3d 498, 542 (11th Cir. 2015) (Martin, J. dissenting) (quoting ACLU Amicus
       Br.).

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016                        Page 22 of 29
       service provider itself without the user’s involvement. Accordingly, the third-

       party doctrine does not dictate the outcome of this case.


                                      C. Zanders’ Expectation of Privacy


[35]   In advocating that his historical location data is entitled to Fourth Amendment

       protection, Zanders relies on Riley and Wertz. In Riley, the United States

       Supreme Court held that a warrant is generally required to search an arrestee’s

       cell phone, despite a recognized exception for searches incident to a lawful

       arrest. Riley, 134 S.Ct. at 2485. The Court based its holding on two reasons:

       (1) concerns justifying a search incident to arrest are not applicable to digital

       data; and (2) digital data implicates substantial privacy concerns far beyond

       those implicated by the search of physical items ordinarily found on an

       arrestee’s person. Id. at 2484-85. It is the latter rationale that we find

       instructive in the issue before us.


[36]   The Riley Court noted that “when privacy related concerns are weighty enough

       a search may require a warrant, notwithstanding the diminished expectations of

       privacy of the arrestee.” Id. at 2488 (quoting Maryland v. King, -- U.S. ---, 133

       S.Ct. 1958, 1979, 186 L.Ed.2d 1 (2013)). The Court deemed these concerns

       important enough with respect to cell phones, which hold “the privacies of life”

       and are nowadays more akin to “minicomputers.” Id. at 2494-95, 2489.

       Distinguishing cell phones quantitatively and qualitatively from physical

       objects, the Court pointed to a cell phone’s capacity to store enormous amounts

       of information and its likelihood to contain private information that could not


       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016    Page 23 of 29
       otherwise be gleaned from a search of one’s person. Id. at 2489-91. Of

       particular relevance to this case is the Court’s reference to location information

       in its discussion of privacy interest. Most importantly, the Court noted “[d]ata

       on a cell phone can also reveal where a person has been. Historic location

       information is a standard feature on many cell phones and can reconstruct

       someone’s specific movements down to the minute, not only around town but

       also within a particular building.” Id. at 2490 (citing United States v. Jones, --

       U.S. ---, 132 S.Ct. 945 955, 181 L.Ed. 911 (2012) (Sotomayor, J., concurring)).


[37]   This court recently likened a GPS unit to a computer or cell phone in Wertz v.

       State, 41 N.E.3d 276, 281 (Ind. Ct. App. 2015), trans. denied, 3 which addressed

       the warrantless search of a GPS device. Analyzing the privacy expectations in

       location data, we rejected the State’s argument that the information contained

       in a GPS device—location, route of travel, and speed—should be afforded a

       lesser degree of privacy. Id. at 282. Relying on the Supreme Court opinion in

       Jones, this court unequivocally concluded that the historical location data stored

       in a GPS device

                provides law enforcement with a simple method of reconstructing
                all of a person’s public movements over several days, months, or
                possibly even years. Although a person can expect to be seen by
                someone when he leaves his home and drives to a given
                destination, it does not follow that he should expect the
                government to know his whereabouts all the time. We are



       3
        In its brief, the State consistently misidentifies Wertz as an opinion by the Indiana supreme court. We point
       out that Wertz was decided by the court of appeals and denied transfer by our supreme court.

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016                        Page 24 of 29
               confident in saying that there is a reasonable expectation of
               privacy in historical location data, whether it be stored in a cell
               phone, a GPS unit, or in ‘the cloud.’


       Id. at 284-85 (emphasis in original) (footnote omitted). Moreover, “[t]he

       expectation of privacy in one’s whereabouts is not only due to society’s impulse

       to cringe at the idea of being followed day and-night; the personal nature of the

       information itself gives rise to an expectation of privacy.” Id. at 285.


[38]   Continuing in the direction shown by our Supreme Court in Riley and Jones,

       and this court’s recent pronouncement in Wertz, we hold that Zanders had a

       reasonable expectation of privacy in the historical location data generated by

       his cell phone but collected by Provider. The record reflects that Detective

       Bridges requested Provider to submit Zanders’ “Call Detail Records WITH cell

       Sites and GPS (Location)” for the last thirty days from the request. (State’s

       Exh. 107). Provider collected over 520 pages of Zanders’ historical location

       data, which were admitted at trial over Zanders’ objection. Each time Zanders

       made a call or received a call, Provider catalogued the cell tower to which his

       cell phone connected, and which, in turn, revealed Zanders’ location. As such,

       Zanders’ data generated “a precise, comprehensive record of [his] public

       movements that reflects a wealth of detail about his familial, political,

       professional, religious, and sexual associations.” Jones, 132 S.Ct. at 955

       (Sotomayor, J., concurring). The specificity of the information that the police

       officers obtained was highlighted by the way the State used it at trial. In a case

       built on circumstantial evidence and without any eyewitnesses, the State


       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016     Page 25 of 29
       bolstered its allegations by using the location data as an indicator that Zanders

       was at, or in the vicinity of, the scenes of the robberies.


[39]   Zanders had a reasonable expectation of privacy in the cell-site location data

       stored by Provider and obtained by Detective Bridges and his expectation was

       one that society considers reasonable and legitimate. Cell-site data is not the

       type of information which spoils or perishes during the short time it takes to get

       a warrant and, as such, imposing the requirements for a warrant under these

       circumstances would hardly shackle law enforcements from conducting

       effective investigations. Cf. Riley, 134 S.Ct. at 2493 (noting that “[r]ecent

       technological advances . . . have . . . made the process of obtaining a warrant

       itself more efficient”).

               We cannot deny that our decision today will have an impact on
               the ability of law enforcement to combat crime. Cell phones
               have become important tools in facilitating coordination and
               communication among members of criminal enterprises, and can
               provide valuable incriminating information about dangerous
               criminals. Privacy comes at a cost.


       Id. But still, the Riley Court insisted that law enforcement officers get a warrant

       before searching a cell phone incident to arrest and the Wertz court insisted on a

       warrant to search the location data on a GPS device. See Riley, 134 S.Ct. at

       2485, Wertz, 41 N.E.3d at 284-85. So here too. We require police officers to do

       what they have done for decades when seeking to intrude upon a reasonable




       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016   Page 26 of 29
       expectation of privacy: get a warrant. As Detective Bridges neglected to get a

       warrant, we reverse and order the trial court to vacate Zanders’ convictions. 4


                                                  CONCLUSION

[40]   Based on the foregoing, we conclude that the trial court properly denied

       Zanders’ motion for mistrial. However, we hold that the warrantless seizure of

       Zanders’ historical location data compiled by his cellular network provider

       violated his Fourth Amendment Rights


[41]   Reversed.


[42]   Pyle, J. concurs


[43]   Kirsch, J. dissents with separate opinion




       4
        Although admissions of evidence in violation of the Fourth Amendment can be subject to harmless error
       analysis, here, the State did not present us with this alternate argument. See Cudworth v. State, 818 N.E.2d
       133, 142 (Ind. Ct. App. 2004), trans. denied.

       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016                        Page 27 of 29
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Marcus Zanders,
       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  15A01-1509-CR-1519
               v.

       State of Indiana,
       Appellee-Plaintiff


       KIRSCH, Judge, dissenting.


[44]   I respectfully dissent.


[45]   In United States v. Graham, the United States Court of Appeals for the Fourth

       Circuit, sitting en banc, held that individuals do not have a reasonable

       expectation of privacy in historical cell-site location records maintained by cell

       phone providers. No. 12-4659, No. 12-4825, 2016 WL 3068018, at *3 (4th Cir.

       May 31, 2016). As a result, the government’s acquisition of such data from the

       defendant’s cellular providers, without a warrant, did not violate the Fourth

       Amendment to the United States Constitution. Id. at *4.
       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016              Page 28 of 29
[46]   In so holding, the Court joined the United States Courts of Appeals for the

       Sixth Circuit in United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), the

       Eleventh Circuit in United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en

       banc), cert. denied, 136 S. Ct. 479, 193 L. Ed. 2d 349 (2015), and the Fifth

       Circuit in In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600 (5th

       Cir. 2013), and the “vast majority of federal district court judges [who] have

       reached the same conclusion.” Graham, 2016 WL 3068018, at *4.


[47]   In Graham, the Court followed United States Supreme Court precedent which

       “mandates this conclusion.” Id. at *1. The precedent cited was Smith v.

       Maryland, 442 U.S. 735(1979), where the Court held an individual has no

       Fourth Amendment protection “in information he voluntarily turns over to [a]

       third part[y].” Smith, 442 U.S. at 743-44.


[48]   Although I share the concerns of my colleagues regarding the tensions arising

       from the constantly mushrooming technology, the government here did not

       transgress the defendant’s reasonable expectations, and I would affirm his

       convictions for two counts of robbery with a deadly weapon as Level 3 felonies,

       two counts of unlawful possession of a firearm as a serious violent felon as

       Level 4 felonies, and his adjudication as a habitual offender.




       Court of Appeals of Indiana | Opinion 15A01-1509-CR-1519 | August 4, 2016    Page 29 of 29
