This post examines a recent opinion from the Court of Appeals of Georgia: State v. Hill, 2016 WL 3751806 (2016). The Court of Appeals begins
the opinion by explaining that
[t]his case involves allegations that
James Brandon Hill committed misdemeanor theft of services in violation of
Georgia Code § 16-8-5 when he fled without paying a fare owed to a taxi cab
driver. The investigating officer found a cellular phone in the back of the
taxi cab and, by placing an emergency call from the phone, determined that it
belonged to Hill.
In a motion to suppress, Hill argued
that this constituted an illegal search of his phone in violation of the Fourth Amendment of the United States Constitution. The trial court granted Hill's
motion, and the state appeals. Because Hill had no reasonable expectation of
privacy in the information at issue—his own name, date of birth, and phone
number—we agree with the state there was no search under the Fourth Amendment,
and accordingly we reverse. In light of this conclusion, we do not address the
issue of whether Hill abandoned the phone.
State v. Hill, supra.
The opinion went on to explain that the evidence in
this case is not in dispute, and we
review de novo the trial court's application of law to the undisputed facts. See Hughes v. State, 296 Ga. 744, 750,
770 S.E.2d 636 (2015). A law enforcement
officer, who was the only witness at the hearing on Hill's motion to suppress,
testified that on June 1, 2014, he investigated a taxi cab driver's claim that
a man had fled without paying his cab fare. The man who fled had left a
cellular phone in the backseat of the cab. The officer turned on the phone but
a passcode prevented him from accessing any data contained therein. The
officer, however, was able to place an emergency call from the phone, and from
that call a 911 dispatcher provided him with the number assigned to the phone
and with Hill's name and date of birth.
Hill did not challenge the officer's
seizure of the phone found in the cab. See
generally Fair v. State, 284 Ga.
165, 174-175 (3) (d), 664 S.E.2d 227 (Georgia Supreme Court 2008) (no
Fourth Amendment violation where officers seized items in plain view during
processing of crime scene); Peek v.
State, 239 Ga. 422, 426, 238 S.E.2d 12 (Georgia Supreme Court 1977) (`It
has long been settled that objects falling in the plain view of an officer who
has a right to be in the position to have that view are subject to seizure and
may be introduced in evidence’) (citation and punctuation omitted).
Instead, Hill argued in his motion to
suppress that the officer's act of calling 911 with the phone constituted an `illegal
search of [his] cellular phone for the purposes of ascertaining [his]
identity.’ In response, the state argued alternatively that the officer's act
did not constitute a `search' within the meaning of the Fourth Amendment, and
that Hill had abandoned the phone by leaving it in the cab. The trial court
rejected both of the state's arguments and granted the motion to suppress. As
detailed below, the trial court erred in concluding that the officer's actions
were a Fourth Amendment search.
State v. Hill, supra.
The Court of Appeals went on to explain that the
Fourth Amendment to the United States
Constitution provides the right of individuals to be free from unreasonable
searches and seizures. U.S. Const. Amend. IV. A Fourth Amendment search occurs
when a government official physically intrudes or trespasses on a person's
property. U.S. v. Jones, __ U.S. __,132 S.Ct. 945 (2012). This case does not involve such a physical intrusion or
trespass.
A Fourth Amendment search also occurs `when
the government violates a subjective expectation of privacy that society
recognizes as reasonable.’ Kyllo v. U.S., 533 U.S. 27, 33 (2001) (citation omitted). See Katz v. U.S., 389 U.S. 347, 361, 88 S.Ct. 507 (1967) (Harlan,J., concurring). Conversely, `a Fourth Amendment search does not occur
. . . unless the individual manifested a subjective expectation of privacy in
the object of the challenged search, and society is willing to recognize that
expectation as reasonable.’ Kyllo v. U.S., supra (citation and
punctuation omitted).
State v. Hill, supra.
The court also pointed out that, in applying
the subjective expectation of privacy
analysis to determine whether a Fourth Amendment search occurred, `it is
important to begin by specifying precisely the nature of the state activity
that is challenged.’ Smith v. Maryland,442 U.S. 735, 741, 99 S.Ct. 2577 (1979). The challenged activity in this case
is the law enforcement officer's act of calling 911 from a cellular phone that
was lawfully in the officer's possession. This activity enabled a dispatcher to
determine the number assigned to the phone and the name and birthdate of Hill,
who was associated with that number. Thus, Hill's Fourth Amendment argument `necessarily
rests upon a claim that he had a “legitimate expectation of privacy” regarding
[his phone number, name, and birthdate].’ Smith
v. Maryland, supra. We find that he had no legitimate expectation of
privacy in this information.
State v. Hill, supra.
The opinion went on to explain that,
[w]hile the application of Fourth
Amendment law to this precise set of facts appears to be an issue of first
impression in Georgia, there are many cases in Georgia and in other
jurisdictions supporting the conclusion that a person lacks a legitimate
expectation of privacy in identifying information such as name, address, or
telephone number that is used to facilitate the routing of communications by
methods such as physical mail, e-mail, landline telephone, or cellular
telephone.
`[T]he majority of courts to consider
the question have agreed that a person's name and address is not information
about which a person can have a reasonable expectation of privacy.’ Commonwealth v. Duncan, 572 Pa. 438, 817
A.2d 455, 466 (Pennsylvania Supreme Court 2003). Examples of cases in which
courts have found no legitimate expectation of privacy and thus no Fourth
Amendment protection include: Smith v. Maryland, supra (government
used `pen register’ to record telephone numbers of calls made from defendant's
landline phone); U.S. v. Forrester,
512 F.3d 500, 509-511 (U.S. Court of Appeals for the 9th Circuit
2008); (U.S. Court of Appeals for the 9th Circuit 2008) (government
used `mirror port’ technology to learn, among other things, the “to/from”
addresses of defendant's e-mail messages); U.S.
v. Choate, 576 F.3d 165, 174-177 (U.S. Court of Appeals for the 9th
Circuit 1978) (government arranged for `mail cover,’ under which postal service
provided government agency with information appearing on the face of envelopes
or packages addressed to defendant); People
v. Elder, 63 Cal.App.3d 731, 134 Cal. Rptr. 212, 215 (California Court of Appeals 1976) (government obtained name and address of subscriber to
particular telephone number); Ensley v.
State, 330 Ga. App. 258, 259, 765 S.E.2d 374 (Georgia Court of Appeals
2014) (government obtained subscriber information associated with
defendant's Internet service account); Stephenson
v. State, 171 Ga. App. 938, 321 S.E.2d 433 (Georgia Court of Appeals 1984) (government
obtained defendant's address and telephone number by arranging for telephone
company to trace and `trap’ a harassing call made by defendant to victim); State v. Neeley, 2012 WL 175340 *4, 2012
Ohio App. LEXIS 165 (Ohio Court of Appeals 2012) (cellular phone
subscriber has no reasonable expectation of privacy in his own phone number and
`the police can trace from a phone number dialed to the identity of the
subscriber of the phone from which that number was dialed’); Commonwealth v. Duncan, supra (government first obtained from
shopkeeper the account number associated with defendant's bank card, and then
obtained from defendant's bank his name and address). Cf. State v. DeFranco,
426 N.J. Super. 240, 43 A.3d 1253, 1259 (App. Division 2012) (finding that New
Jersey Constitution, which defendant argued afforded more privacy protections
than Fourth Amendment, was not violated when government obtained his cellular
phone number from his employer, because defendant's `professed subjective
expectation of privacy’ in his phone number was not one “that society would be
willing to recognize as reasonable”) (citations omitted).
State v. Hill, supra.
The Court of Appeals then explained that
[t]wo principles of Fourth Amendment
law lead to this result. First, as to communications, there is a `core
distinction: although the content of personal communications is private, the
information necessary to get those communications from point A to point B is
not.’ U.S. v. Carpenter, 819 F.3d
880, 886 (U.S. Court of Appeals for the 6th Circuit 2016). Consistent with this distinction, we have held
in a case involving a landline phone that the Fourth Amendment `protects only
the content of a telephone conversation and not the fact that a call was placed
or that a particular number was dialed.’ Stephenson
v. State, supra. See generally
Orin S. Kerr, Applying the FourthAmendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1019 (2010) (originating telephone number is non-content information analogous to
return address on envelope).
Second, `a person has no legitimate
expectation of privacy in information he voluntarily turns over to third
parties.’ Smith v. Maryland, supra.
This rule applies even where the person revealing information intended its use
by the third party to be limited. United States v. Graham, 2016
U.S. App. LEXIS 9797, *5 (U.S. Court of Appeals for the 4th Circuit 2016) (en banc). By using a phone, a person exposes identifying information to third
parties, such as telephone companies, and assumes the risk that the telephone
company may reveal that information to the government. Smith v. Maryland, supra. See also Ensley v. State, supra.
Applying this principle to the act of
law enforcement officers in obtaining from a cellular phone the number
associated with that phone, the United States District Court for the Eastern
District of Michigan held that `a cell[ular] phone number fits into the
category of information that is not considered private and does not implicate
the Fourth Amendment.’ U.S. v. Sanford, 2013 U.S. Dist. LEXIS 73624, *3
(E.D. Mich. 2013).
State v. Hill, supra.
The Court of Appeals then began the
process of applying the above principles to the issue in this case, explaining
that the
fact that it was a law enforcement
officer, rather than Hill, who placed a call from the phone does not change our
conclusion that the information obtained was not subject to Fourth Amendment
protection. Cases from other jurisdictions illustrate this point. In U.S. v. Skinner, 690 F.3d 772, 777-778
(U.S. Court of Appeals for the 6th Circuit 2012), for example, the
United States Court of Appeals for the Sixth Circuit held that law enforcement
agents could take action to cause a cellular phone to emit information from
which they could track it without running afoul of the Fourth Amendment,
because the defendant did not have a reasonable expectation of privacy in the
location data emitted from the phone.
Courts have held that law enforcement
officers could swipe a credit card that was lawfully in their possession to
obtain information from the card's magnetic strip, because that information
would be revealed to a third party in the normal use of the card and, consequently,
was not subject to a legitimate expectation of privacy. See U.S. v. L’Isle, 2016 WL 3184475 *5 2016 U.S. App. LEXIS 10345
**9-13 (U.S. Court of Appeals for the 8th Circuit 2105); United States v. Bah, 794 F.3d 617,
629-633 (U.S. Court of Appeals for the 6th Circuit).
State v. Hill, supra.
The court went on to explain that
[a]lthough a law enforcement officer
cannot access data stored within a cellular phone without a warrant or an
exception to the warrant requirement, see
Riley v. California, 134 S.CT. 2473 (2014), courts have held that the
officer can take other action with a cellular phone lawfully in his or her
possession to determine the phone's owner. For example, the officer can remove
the battery from a phone to acquire an identifying subscriber number, analogous
to a serial number, without implicating the Fourth Amendment, because the
subscriber has no `reasonable expectation of privacy in the serial number of
his cell[ular] phone or other identifying information.’ State v. Green, 164 So.3d 331, 344 (Louisiana Court of Appeals 2015).
See also United States v. Lowe, 2014 U.S. Dist. LEXIS 145457 (U.S.District Court for the District of Nevada 2014). And in the context of a civil
rights action, the United States District Court for the Eastern District of
Virginia held that an allegation that an officer improperly placed a call from
a person's cellular phone did not state a Fourth Amendment violation. Deavers
v. Spotsylvania County Sheriff’s Department, 2014 WL 2993445 (U.S. District Court for the Eastern District of Virginia 2014).
Hill cites Riley v. California, supra, in support of his argument that the
officer violated the Fourth Amendment by placing the call from his phone.
Unlike this case, however, Riley did
not concern whether an officer's acts constituted a search under the Fourth
Amendment. It was undisputed in Riley
that the officers searched the defendants' cellular phones when they accessed
files within the phones that included videos, photographs, text messages, and a
call log. Riley v. California, supra.
Instead, Riley concerned whether
such a search required a warrant even if the phone was seized incident to
arrest, and the Court concluded that it did, in part because the search of a
cellular phone more greatly intruded on privacy than a search of other types of
items that could be seized incident to arrest. See Riley v. California, supra.
State v. Hill, supra.
The Court of Appeals then articulated its ruling in this
case, explaining that
[h]ere, in contrast to Riley, the officer did not access any
files on Hill's phone, which was protected by a passcode. He `did not attempt
to retrieve any information from within the phone,’ U.S. v. Lawing, 703 F.3d
229, 238 (U.S. Court of Appeals for the 4th Circuit 2012), but
instead used the phone in a manner that caused it to send Hill's telephone
number to a third party, the 911 dispatcher. We do not construe Riley to prohibit an officer in lawful
possession of a cellular phone from placing a call on that phone in an attempt
to obtain identifying information about its owner. Moreover, we do not construe
Riley to recognize a legitimate
expectation of privacy in identifying, non-content information such as the
person's own phone number, address, or birthdate, simply because that information
was associated with a cellular phone account rather than a landline phone
account or a piece of physical mail.
Because we conclude that no Fourth
Amendment search occurred in this case, we reverse the trial court's grant of
Hill's motion to suppress. Consequently, we do not address the state's
alternative argument regarding whether Hill abandoned the cellular phone.
State v. Hill, supra.
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