Friday, November 16, 2012

Voluntary Disclosure of Cell Phone Records and the Motion to Suppress

At some point after he was “indicted for the July 20, 2007 murder of two men who were shot in the head some time after borrowing a car from Lawrence Kidd”, Michael Jason Registe filed a motion to suppress certain phone records.  Registe v. State, __ S.E.__, 2012 WL 5381248 (Georgia Supreme Court 2012).  After the trial court judge denied the motion, Registe “filed an application for an interlocutory appeal,” which the Georgia Supreme Court granted.  Registe v. State, supra.  

The issue he raised in the motion to suppress arose as the result of the following events: 
[The morning after the two men were murdered], [Lawrence] Kidd told police that the victims were going to meet someone named `Mike,’ and Kidd provided Mike's cell phone number. Using this cell number, Detective R. Jackson faxed Cricket Communications, the cell service provider, the following message on July 21, 2007:

`The Columbus [Georgia] Police Dept. is currently investigating a double homicide which occurred at approximately 2130 hours on 07–20–07. We have information that the victim last met with the owner of this phone (706–617–3602) which makes him a suspect at this time. Obviously this suspect presents an immediate danger to any law enforcement officer who may come into contact with this person.’

`We are requesting information as to the owner of this phone as well as any calls to and from this number within a two hour period starting at 8:30 pm to 13:30 pm on 07–20–07 EST. Thank you for your cooperation.’
Registe v. State, supra.  

Cricket Communications responded to the fax on July 22, 2007, with the information Jackson had requested.  Registe v. State, supra.  More precisely, Cricket reported that the “account belonged to `Kareem Penn,’ an alias of Registe.”  Registe v. State, supra.

After cold calling numbers in the phone records provided by Cricket, the police spoke with Michael Brown, who stated he had picked up Registe at a time shortly after the shootings. Brown named others who had information. Combined, these individuals stated they had seen blood on Registe's clothing, and they named the hotel where Registe spent time.

Through persons at the hotel and photo identification by Brown and his acquaintances, `Mike’ was identified as Registe, and, on July 22, 2007, an arrest warrant was issued. On July 24, 2007, the Columbus Police executed a search warrant at an apartment linked to Registe where they found a gun and the cell phone assigned to the phone number at issue in this case.

Later, on September 19, 2007, Columbus Police acquired a court order for the production of documentary evidence from Cricket Communications, specifically the cell phone records of Kareem Penn from July 10, 2007 to July 25, 2007.

Registe v. State, supra.  

Registe filed his motion to suppress the phone records on January 7, 2011, which the trial judge denied.  Registe v. State, supra.  

The Supreme Court began its analysis of Registe’s motion to suppress by noting that the trial judge’s “`findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.’” Registe v. State, supra (quoting Barrett v. State, 289 Ga. 197, 709 S.E.2d 816 (Georgia Supreme Court 2011)).  It then noted that

[a]s an initial matter, telephone billing records are business records owned by the telephone company, not the defendant. As a result, defendants generally lack standing to challenge the release of such records under the 4th Amendment because they do not have a reasonable expectation of privacy in records belonging to someone else. Kesler v. State, 249 Ga. 462, 291 S.E.2d 497 (Georgia Supreme Court 1982).

Accordingly, Registe is not entitled to challenge the release of phone records in this case on 4th Amendment grounds.

Registe v. State, supra.  (For more on why he lacked standing to raise a 4th Amendment argument, check out this prior post.)

Since he could not rely on the 4th Amendment, Registe argued that “the release of the cell phone records in this case failed to comply with relevant state and federal statutory provisions.” Registe v. State, supra.  The relevant provision of Georgia law is Georgia Code § 16–11–66.1, which states that:

(a) A law enforcement officer, a prosecuting attorney, or the Attorney General may require the disclosure of stored wire or electronic communications, as well as transactional records pertaining thereto, to the extent and under the procedures and conditions provided for by the laws of the United States.

(b) A provider of electronic communication service or remote computing service shall provide the contents of, and transactional records pertaining to, wire and electronic communications in its possession or reasonably accessible thereto when a requesting law enforcement officer, a prosecuting attorney, or the Attorney General complies with the provisions for access thereto set forth by the laws of the United States.

And, as the Supreme Court explained, the
`laws of the United States’ referenced in the statute [quoted above] include the provisions of 18 U.S. Code § 2701 et seq., which address mandatory or voluntary disclosure of electronic communications records to the government. 18 U.S. Code  § 2702(c)(4) allows the voluntary release of non-content records, including subscriber information, `to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.’
Registe v. State, supra.  

Registe argued that “in this case, there were no emergency conditions supporting a release of the telephone records.”  Registe v. State, supra.  

The Supreme Court first noted that “the remedy sought by Registe, namely suppression of evidence, is not an available remedy under either Georgia Code § 16–11–66.1 or 18 U.S. Code § 2702(c)(4).  Registe v. State, supra.  It explained that Georgia Code § 16–11–66.1(e) states that “[v]iolation of this Code section shall be punishable as contempt”, which implied suppression was not a remedy for violating state law. Registe v. State, supra.

The court also noted that 18 U.S. Code § 2707 “allows a subscriber [to file a civil action against any party who improperly releases covered records or information”, which means that suppression is not a remedy for violating federal law.  Registe v. State, supra.  

The Supreme Court then pointed out that, notwithstanding the above provisions, Georgia Code § 16-11-67 states that “`[n]o evidence obtained in a manner which violates any of the provisions of this part [regarding wiretapping, eavesdropping, surveillance, and related offenses] shall be admissible in any court of this state except to prove violations of this part.’” Registe v. State, supra.  Registe argued that, “under this provision, the telephone records should have been considered inadmissible.”  Registe v. State, supra.  

The Supreme Court did not buy his argument:

We disagree because the voluntary disclosure of telephone records in this case satisfied the applicable statutes.  Under the facts set forth in the trial court's order, we conclude that Cricket believed in good faith that disclosure of Registe's cell phone records was appropriate.

Here, Cricket received information directly from police that its records could help identify an at-large suspect of a double homicide committed within a day of the request and that the suspect presented a present and immediate danger. This supported Cricket's good faith belief that there was an ongoing emergency, and that belief supported Cricket's voluntary disclosure of its records.

Registe v. State, supra (emphasis in the original). 

The court included two footnotes in the above paragraph, the first of which said that because the disclosure was voluntary, “it is questionable whether Georgia Code § 16–11–66.1 or Georgia Code § 16–11–67 are applicable at all to this case, as the former statute appears to apply only to mandatory disclosures.” Registe v. State, supra (emphasis in the original). 

The second footnote went to whether there was a violation of federal law:

We emphasize that the release of information in this case was voluntary and thereby governed by 18 U.S. Code § 2702(c)(4). Cricket was not compelled to release its records, but it did so in good faith. Had police mandated the release of records and Cricket did not want to voluntarily release them, 18 U.S. Code § 2703 would have required police to provide Cricket with a warrant, court order, or evidence of the subscriber's consent.

Registe v. State, supra (emphasis in the original). 

The Supreme Court therefore held that

the voluntary release of Registe's cell phone records by Cricket to the police complied with the state and federal statutory provisions cited above and precluded suppression of the evidence.  Registe's motion to suppress was properly denied.

Registe v. State, supra.  

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