By Ken Wallentine
A liquor store clerk received a phone call from an Ohio area code; the caller inquired about the store’s closing time. Shortly after the call, the liquor store was robbed. Another liquor store in the area had been robbed less than a week before and the robber took a bottle of tequila. A detective performed an internet search for the phone number retrieved from the liquor store phone line caller ID. The search produced Zanders’ Facebook page.
The public Facebook photos included a picture of various denominations of cash posted at approximately 11:30 a.m. on the morning after the liquor store robbery. Another photograph showed a bottle of Patron tequila, posted the day after the earlier robbery and taken in Zanders’ mother’s residence. Zanders’ Facebook page also publicly included a video taken in his mother’s home and posted the morning after the second liquor store robbery. The video showed a bottle of the same brand of tequila taken in the first robbery. The video then moved to a bed with a pile of money.
Investigators obtained cell site location information (CSLI) showing that Zanders was in the same area of the liquor stores near the time of the robberies. The investigators did not have a warrant to obtain the CSLI records. Although each federal appellate court that has considered the issue of whether there is an expectation of privacy in CSLI records has held that there is no such right, some federal district courts, as well as state courts in Massachusetts, New Jersey and Florida, have ruled to the contrary. Having held that the evidence was unlawfully obtained because there was no warrant, the court ordered that Zander’s convictions be vacated.
This case is just one more in an issue that has sharply divided the courts. Earlier issues of Xiphos have reported on the federal cases. The Supreme Court is likely to take up the issue fairly soon, as Justice Sonia Sotomayor has signaled that she is ready to address the issue. In a concurring opinion in United States v. Jones (132 S.Ct. 945 (U.S. 2012)), she wrote that the current analysis of expectation of privacy in information voluntarily disclosed to 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.” There are several cases working through the federal courts that might offer the opportunity for the Supreme Court to take a closer look at obtaining CSLI without a warrant.
Zanders v. State, 2016 WL 4140998 (Ind. Ct. App. 2016)