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Police properly subpoena cell phone data, 9th District rules
SCOTT PIEPHO
Legal News Reporter
Published: February 25, 2013
Police properly subpoenaed a cell phone company’s data that showed a suspect’s movements, the 9th District ruled recently. Patrick Griffin appealed his murder conviction, asserting among other arguments that the trial court should have suppressed location information obtained from his cell phone provider. The court overruled his assignments of error and upheld his conviction.
Griffin was tried and convicted for killing a neighbor, Alberto “Cookie” Gutierrez. Investigators had identified Griffin as a person of interest when they traced the last number dialed on Gutierrez’s phone to him. During the investigation they subpoenaed records from his cell phone company.
Testimony at trial showed that embedded in the record of each cell phone call was information that shows the general location of the cell phone when the call is made. A cell phone transmits a radio signal that is intercepted by the service provider’s nearest antenna. Each antenna has three sides. When a customer makes a call, the log records which antenna received the call and on which side.
If the cell phone moves during a call, it will shift to a different side of the antenna or to a different antenna. The call log also includes the antenna and side of the antenna in connection with the phone when the call ends.
Police used the location information in the call logs provided by Griffin’s cell phone company to plot his movements around the time of the murder. From that information they were able to demonstrate that Griffin’s cell phone moved from his apartment to the area where Gutierrez’s body was found around the time of the murder, then it travelled away, eventually moving back to the area of Griffin’s apartment. Thus the state was able to offer evidence suggesting both that Griffin travelled to the area where the body was found, and that when he was interviewed about his movements on the night of the murder he lied to investigators.
At trial Griffin moved to suppress the records from the cell phone company. He based his argument on State v. Smith, (2009). In that case police arrested a suspect on drug trafficking charges and found a cell phone on him during the search incident to the arrest. The police searched through the phone, obtaining a call record and phone numbers which the trial court admitted. The Ohio Supreme Court held that police who lawfully obtain a cell phone during a search incident to arrest must nonetheless obtain a warrant before looking through the cell phone for information.
The court held that the owner of a cell phone has a heightened expectation of privacy regarding the wealth of data that may be contained in it. In addition, the state interests that justify allowing a warrantless search incident to arrest – ensuring officer safety and preventing the destruction of evidence – are fully vindicated by seizing the phone. The court concluded that police must obtain a search warrant before obtaining information from the phone.
The court in Griffin’s case easily distinguished Smith because in this case the police obtained information from the cell service provider, not the defendant’s phone. As such, Smith’s analysis regarding a phone owner’s privacy interest in the data on that phone does not apply.
The court cited with approval the 2nd District’s decision in State v. Neely, (2012). There the court also confronted the issue of information obtained from a cell phone company. The Neely court also easily distinguished the Ohio case captioned State v. Smith. Instead the court analogized the facts to the U.S. Supreme Court case Maryland v. Smith, (1979.) The court found that the Supreme Court noted a distinction between the content of conversations – in which people always have a heightened expectation of privacy – and the phone numbers called – in which customers have no such expectation.
The Neely court concluded that a cell phone owner has no privacy interest in “the billing records of his telephone service provider.” The records in that case included the name and address a subscriber assigns to a particular cell number, the numbers of calls received by or made on the phone, and the duration of those calls.
Because the defendant only contested the subpoena based on the easily distinguishable Smith case from Ohio, the court did not need to analyze either Smith or Neely in depth. The court also noted that the police obtained the information pursuant to a federal statute, 18 U.S.C. 2703, passed as the Electronic Communications Privacy Act. Griffin did not argue that the subpoena failed to follow the statutory requirements; in fact he did not discuss the statute in his argument at all, according to the opinion. The court noted that it was not therefore required to determine whether the subpoena was proper.
The court next found that the manifest weight of the evidence supported Griffin’s conviction. Then the court overruled two assignments of error based on alleged errors that the defendant did not object to at trial. In one, he argued that the prosecutor discussing his refusal to submit to a gunshot residue test was misconduct. In the other he argued that the trial court failed to properly instruct the jury regarding the testimony of a co-defendant. In both assignments of error the court found that the defendant failed to claim plain error, meaning that his failure to object at trial was fatal to those claims.
Finally, the court overruled on assignment based on alleged ineffective assistance. The defendant argued that his trial counsel was ineffective when he failed to sever the murder charge from a “weapons under disability” charge. Because of the weapons charge, the jury learned of the defendant’s prior record. The court found that trial counsel adequately sought to minimize the effect of the weapons charge.