Subscriber Information, the Stored Communications Act and the Exclusionary Rule

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 4^th 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 4^th 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 4^th 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 4^th 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.

The Court of Appeals found, however, that the lack of a 4th Amendment remedy did not

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.