September 26, 2018
from the Dearborn Superior Court, No. 15D02-1502-F3-3 The
Honorable Sally A. McLaughlin, Judge
Remand from the Supreme Court of the United States, No.
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,
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Stephen R. Creason Chief Counsel Tyler Banks
Deputy Attorney General Indianapolis, Indiana
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 (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?
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.
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
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
and Procedural History
winter of 2015, police were investigating two armed robberies
that had occurred less than one week apart at liquor stores
in Dearborn County, Indiana.
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.
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
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.
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.
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).
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.
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
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.
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.
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.
rejected Zanders's arguments and affirmed the
convictions. Zanders v. State, 73 N.E.3d 178 (Ind.
2017), vacated by Zanders v. Indiana, 138 S.Ct. 2702
(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
time-the third-party doctrine applied to
CSLI. 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.
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.
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.
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
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
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 (1967).
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
evidence. We conclude that even if admitting the CSLI
evidence was error, it was harmless beyond a reasonable
doubt. So we affirm Zanders's convictions.
The State's Access to Zanders's CSLI Was a Fourth
appeal, we "appreciate[d] both sides of th[e] federal
split" over whether government access to historical CSLI
is a Fourth Amendment search. Zanders, 73 N.E.3d at
185. And in the absence of Supreme Court precedent resolving
the split, we "align[ed] with the majority
position," affirming the trial court's ruling that
individuals do not have a reasonable expectation of privacy
in their CSLI, given the application of the third-party
resolving the split, the Supreme Court in Carpenter
instructed otherwise. Although Carpenter
specifically addressed the government's receipt of over
125 days of CSLI, the Court held that an individual has a
reasonable expectation of privacy in seven days or more of
CSLI, which provides a comprehensive chronicle of the
user's past movements. 138 S.Ct. at 2211, 2217 & n.3.
The 30 days of Zanders's historical CSLI at issue here
was therefore a Fourth Amendment search under
that a "search" under the Fourth Amendment occurred
is just the first step of our analysis, for three reasons.
First, the Fourth Amendment does not always require a warrant
before conducting a search-exigent circumstances, for
example, may supply an exception to the warrant requirement.
See id. at 2221-23. Second, even if the search was
unconstitutional, the exclusionary rule may not apply, making
the fruits of the search admissible. See Davis v. United
States, 564 U.S. 229, 236-37 (2011); Hudson v.
Michigan, 547 U.S. 586, 591 (2006) ("Suppression of
evidence . . . has always been our last resort, not our first
impulse."). And, finally, if evidence should have been
excluded but its admission was harmless beyond a reasonable
doubt, the error does not require reversal. See
Chapman, 386 U.S. at 24.
these points, the State argues that exigent circumstances
made the warrantless search reasonable-and thus
constitutional under the Fourth Amendment-so there was no
error in admitting the CSLI evidence. The State continues
that even if the evidence should have been excluded,
admitting it was harmless beyond a reasonable doubt.
responds that exigent circumstances did not justify the
warrantless search of his CSLI; the fruits of that search
should have been excluded; and their admission was not
not, and do not, decide whether exigent circumstances
justified the warrantless search. This is because, in view of
the whole record, the CSLI evidence was harmless beyond a
The Admission of CSLI Evidence Was Harmless Beyond a
constitutional errors are subject to harmless-error
standards. See Chapman, 386 U.S. at 23 & n.8
(providing examples); Arizona v. Fulminante, 499U.S.
279, 309-10 (1991) (same).
most are, including the admission of evidence obtained in
violation of the Fourth Amendment. Fulminante, 499
U.S. at 306-07 (citing Chambers v. Maroney, 399 U.S.
42, 52-53 (1970)); United States v. Stefonek, 179
F.3d 1030, 1036 (7th Cir. 1999). For these errors, "an
otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record,
that the constitutional error was harmless beyond a
reasonable doubt." Delaware v. Van Arsdall, 475
U.S. 673, 681 (1986). Put another way, the question is,
"Is it clear beyond a reasonable doubt that . . . [the]
jury would have found the defendant guilty absent the
error?" Neder v. United States, 527 U.S. 1, 18
State bears the burden to make this showing. Weaver v.
Massachusetts, 137 S.Ct. 1899, 1907 (2017);
Chapman, 386 U.S. at 24. And it is a heavy burden
indeed. But overcoming this burden does not require showing
that the jury was "totally unaware of that feature of
the trial later held to have been erroneous." Yates
v. Evatt, 500 U.S. 391, 403 (1991), disapproved of
on other grounds by Estelle v. McGuire, 502 U.S. 62, 72
n.4 (1991); see Neder, 527 U.S. at 18 ("To set
a barrier so high that it could never be surmounted would
justify the very criticism that spawned the harmless-error
doctrine in the first place . . . ."). Rather, the
reviewing court must "find that error unimportant in
relation to everything else the jury considered on the issue
in question, as revealed in the record." Yates,
500U.S. at 403.
harmless-error doctrine thus serves two key, interrelated
functions: it "recognizes the principle that the central
purpose of a criminal trial is to decide the factual question
of the defendant's guilt or innocence," Van
Arsdall, 475 U.S. at 681 (citing United States v.
Nobles, 422 U.S. 225, 230 (1975)), and it "promotes
public respect for the criminal process by focusing on the
underlying fairness of the trial rather than on the virtually
inevitable presence of immaterial error," id.
these reasons, harmless-error analysis involves
quantitatively and qualitatively assessing the error in the
context of other evidence presented. See id. at 684;
Fulminante, 499 U.S. at 307-08. This analysis
requires us to first identify the allegedly improper
evidence, then evaluate its significance in view of all the
other evidence that was properly presented. See,
e.g., United States v. Hasting, 461 U.S. 499,
510-12 (1983); United States v. Watts, 453 Fed.Appx.
309, 312-14 (4th Cir. 2011); United States v.
Tenerelli, 614 F.3d 764, 769-70 (8th Cir. 2010).
If the State Obtained the CSLI Illegally, Only the CSLI
Records and Corresponding ...