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Zanders v. State

Supreme Court of Indiana

March 8, 2019

Marcus Zanders, Appellant (Defendant)
State of Indiana, Appellee (Plaintiff)

          Argued [1] : September 26, 2018

          Appeal from the Dearborn Superior Court, No. 15D02-1502-F3-3 The Honorable Sally A. McLaughlin, Judge

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

          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



         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 (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, 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[2]-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 (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 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.

         I. The State's Access to Zanders's CSLI Was a Fourth Amendment Search.

         On 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 doctrine. Id.

         But in 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 Carpenter.

         Concluding 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.[5]

         On 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.

         Zanders 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 harmless error.[6]

         We need 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 reasonable doubt.

         II. The Admission of CSLI Evidence Was Harmless Beyond a Reasonable Doubt.

         Not all 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).

         But 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 (1999).

         The 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.

         The 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.

         For 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).

         A. If the State Obtained the CSLI Illegally, Only the CSLI Records and Corresponding ...

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