After a jury convicted him of “of second degree assault,
reckless endangerment, and carrying a concealed deadly weapon” and the trial judge sentenced him “to ten years' imprisonment for the assault charge and three years" in prison, "suspended, for the weapons charge”, Alan Upshur appealed. Upshur
v. State, __ A.3d ___, 2012 WL 5949365 (Maryland Court of Appeals 2012). On appeal, he made three arguments, only two
of which I’ll address in this post. The
third argument challenged the reliability of an identification
of him by the victim.
This post deals with Upshur’s challenging the admission of
certain evidence. Upshur v. State, supra. More precisely, it deals with the Court of
Appeals’ analysis of and ruling on these two arguments:
I. Did the trial court err in finding
that records obtained pursuant to a State's Attorney's subpoena served outside
of the State of Maryland and outside of Somerset County provided an independent
source to justify admitting evidence obtained in violation of the Maryland Stored
Communications Act?
II.
Did the trial court err in holding that subscriber information illegally
obtained in the course of a police investigation was not subject to the
exclusionary rule because it was evidence of the [Upshur’s] identity?
Upshur v. State,
supra.
This, according to the opinion, is how the case arose:
On December 5, 2010, Princess Anne
County Police responded to a 911 call. Darren Whittington had been stabbed, but
he managed to evade his attackers and summon paramedics and police. Corporal
Rob Smith questioned Whittington at the hospital. . . . Whittington said a
person known to him as `Ace’ had stabbed him. Smith inquired about Ace's `real
name,’ but Whittington said he only knew the man as Ace. . . .
Whittington said
Ace was a black male and a student at the University of Maryland -- Eastern
Shore. Whittington guessed his age as around 24, and described Ace as having a
`short top’ haircut. . . . Whittington said Ace's telephone number was stored
in his phone's contacts list. Whittington consented to Princess Anne County
Police retrieving the number from the phone, which had been left at the scene. . . .
Detective Sergeant Bozman
located Whittington's cell phone and retrieved from [its] contact list the
number associated with `Ace Campus.’ [He] typed the number into an Internet
search engine and determined that Sprint Communications provided service to
that number. [He] contacted Sprint's offices in Kansas to obtain information
about the subscriber.
Sprint faxed an `exigent circumstances’ request form,
which Bozman filled in and faxed back. Shortly thereafter, Sprint faxed to
Bozman the subscriber information for the telephone number found in
Whittington's contact list. [It] indicated Upshur and Desiree Davis were the subscribers
for that cell phone number.
Upshur v. State,
supra.
Bozman then ordered other officers to put Upshur’s apartment
under surveillance and
applied for a search warrant for [his]
home and automobile. Before officers obtained the warrant, Upshur and his
roommate, Jamal Hood, were observed leaving the apartment. Officers stopped
their vehicle, arrested Upshur, and detained Hood for questioning.
Later,
officers obtained a search warrant for Upshur's home and automobile, and
executed that warrant. Evidence seized in the apartment and automobile included
a sheath to a fixed blade knife, a digital scale, a key for a Lexus automobile,
and suspected marijuana, among other items.
Upshur v. State,
supra.
On January 11, 2011, the Somerset County State’s Attorney
issued a State's Attorney's subpoena to
Sprint for the subscriber information associated with the number Whittington
identified as associated with Ace. Sprint provided the same information it had
given to Detective Bozman a month prior.
Upshur v. State,
supra.
Upshur filed several motions to suppress evidence at trial,
which the trial judge eventually denied.
Upshur v. State, supra. As noted above, he renewed two of his
arguments as the propriety of suppressing certain evidence at trial. Like the Court of Appeals, we’ll begin with
the first of the two, in which Upshur claimed officers collected
his identifying subscriber data -- his
name and address -- in violation of the Maryland Stored Wire and Electronic
Communications and Transactional Records Access Act (`Maryland SCA’), Maryland
Code Courts & Judicial Proceedings Article (`CJP’), § 10–4A–01, et seq.
The [Maryland SCA] provides. . . that a provider of telecommunications
services shall not provide a law enforcement officer electronic records,
including `name, address, local and long distance telephone connection records,
or records of session times and durations . . . or other subscriber number or
identity,’ § 10–4A–04(c)(1)(i), unless the officer:
1. Uses a subpoena issued by a court of competent
jurisdiction, a State grand jury subpoena, or a subpoena authorized
under § 15–108 of the Criminal Procedure Article;
2. Obtains a warrant from a court of competent
jurisdiction;
3. Obtains a court order requiring the disclosure
under subsection (d) of this section; or
4. Has the consent of the subscriber or customer to
the disclosure.
Upshur v. State, supra (quoting CJP § 10–4A–04(c)(2)(ii)).
The Court of Appeals noted that the Maryland SCA “mirrors
its federal counterpart, the Electronic Communications Privacy Act,” except
that the federal statute “includes an exception for disclosure in exigent
circumstances, 18 U.S. Code § 2702(c)(4), which the Maryland statute
lacks.” Upshur v. State, supra.
Upshur's subscriber data fell within the definition of
`records’ in the Maryland SCA, and Bozman initially requested it “without first
obtaining a subpoena, warrant, court order, or Upshur's consent, as required by”
that Act. Upshur v. State, supra.
Sprint provided the data to Bozman “on the basis of an exigent circumstances
form, which would have been sufficient to authorize release under the federal
statute,” but which did not satisfy the Maryland SCA. Upshur v. State, supra. The Court of Appeals noted that even if the
Maryland SCA “did contain an exception for exigent circumstances, Bozman
conceded, in his testimony at the suppression hearing, that there was no such
emergency at the time he requested the records from Sprint.” Upshur v. State, supra.
This
meant Bozman’s obtaining “Upshur's name and address from Sprint violated”
the Maryland SCA. Upshur v. State, supra.
Upshur argued that the evidence should, as a result, be excluded and “any
evidence police gained as a result of improperly obtaining that subscriber data
should also be excluded as fruit of the poisonous tree.” Upshur v. State, supra. The State argued that Upshur's subscriber
data was not subject to an exclusionary rule and that, even if it was, the
January 11 subpoena was “as an independent source and/or a form of inevitable
discovery that removed any taint from the unlawfully obtained evidence.” Upshur v. State, supra.
The Court of Appeals found that to suppress the evidence, Upshur
would have to show that an exclusionary rule was available “to redress the
violation of the” Maryland SCA. Upshur v.
State, supra. Upshur argued that the 4th Amendment and the
Maryland SCA, “considered in combination, mandate exclusion of evidence
obtained in violation of the act.” Upshur
v. State, supra.
The Court of Appeals found that, under the Supreme Court’s decision
in Smith v. Maryland, 442 U.S. 735 (1979), individuals generally do not have a 4th Amendment
expectation of privacy in information they voluntarily convey to a third party,
such as a phone company. Upshur v. State, supra. (For more on
that, check out this prior post.) The court therefore found that the “threshold
question is whether Upshur had an expectation of privacy in his subscriber
data, and, if so, the second question is whether society regards this
expectation of privacy as reasonable.” Upshur v. State, supra. In other words, the court said Upshur would
have to show that the information at issue was “private” under the Supreme
Court’s holding in Katz v. U.S., 389 U.S. 347 (1967).
The Court of Appeals found it was not protected
by the 4th Amendment, noting that the federal courts to “have
considered the issue of an expectation of privacy in subscriber identifying information
have all determined there is no such protected expectation”. Upshur v. State, supra. It said that, “[f]or example, in U.S.
v. Bynum, 604 F.3d 161 (2010), the U.S. Court of Appeals for the 4th Circuit determined that a person does not have a reasonable expectation of
privacy in subscriber data conveyed to the provider”. Upshur v. State, supra.
The court
therefore held that “Upshur's name
and address were not protected by a 4th Amendment right of privacy”. Upshur v. State, supra. If he had no 4th Amendment
expectation of privacy in the data, the 4th Amendment exclusionary rule would not apply, which would mean the evidence could not be suppressed on
that basis.
end our inquiry . . . because police in this case
did . . . violate CJP § 10–4A–04(c)(2)(ii), and Upshur claims that violation of
that statute should lead to the exclusion of evidence obtained by such
violation. Nevertheless, the Court of Appeals has held that Maryland courts may
not . . . create an exclusionary rule where one does not exist: `In the absence
of statute or a rule promulgated by this Court, the Circuit Court does not have
the inherent power to create an exclusionary rule of evidence under a statute
that itself does not have an exclusionary rule.’ Thompson v. State,
395 Md. 240, 909 A.2d 1035 (Maryland Supreme Court 2006). . . .
Upshur v. State, supra.
The Court then explained that the Maryland SCA
does not provide any remedy requiring courts to
exclude evidence obtained by law enforcement officers who fail to comply with
the act. Rather, the remedy for a violation of this statute is a civil suit for
equitable or declaratory relief and money damages. See CJP §10–4A–08.
Upshur v. State, supra.
Upshur argued that the
very existence of the [Maryland SCA] indicates that
the Maryland legislature intended to provide citizens with greater protection
of privacy in the information defined as records in CJP § 10–4A–04(c)(1)(i),
and we should infer a legislative intent to exclude evidence obtained in
violation of the act.
The legislature, however, is capable of expressly
providing a suppression remedy when it intends to do so, as it did when it
included a suppression remedy in the Wiretapping and Electronic Surveillance
Act, enacted prior to the Stored Communications Act. See CJP §
10–405(a). Accordingly, we will not create a suppression remedy for Upshur
where the legislature did not create one at the time it enacted the statute.
Upshur v. State, supra.
The Court of Appeals therefore held that “[b]ecause we
conclude Upshur's name and address were not protected by the 4th Amendment
after he provided that information to Sprint, we need not reach the question .
. . about the effect of the subpoena issued by the State's Attorney to an
out-of-state witness.” Upshur v. State, supra. Because of that, and because it also rejected
his argument that the witness identification was not reliable, the court
affirmed Upshur’s convictions and sentence.
Upshur v. State, supra.
No comments:
Post a Comment