Upshur v. State

MEREDITH, J. This case comes to us from the Circuit Court for Somerset County. After being charged with attempted murder and related offenses, Alan Upshur, appellant, moved to suppress the evidence of his name and address which were on record with his cellular telephone service provider, and which led to his identification by law enforcement and the issuance of a search warrant for his house and automobile. Upshur also moved to suppress an out-of-court photographic identification made by the victim, as well as evidence obtained as a result of the execution of the search warrant. At the conclusion of a pretrial suppression hearing, the circuit court denied the motion.

Following a jury trial, Upshur was convicted of second degree assault, reckless endangerment, and carrying a concealed dangerous weapon. Subsequently, Upshur was sentenced to ten years’ imprisonment for the assault conviction and three years’ imprisonment, which was suspended, for the weapons charge. Upshur’s timely appeal followed. QUESTIONS PRESENTED Appellant submitted the following questions for our review: I. Did the trial court err in finding that records obtained pursuant to a State’s Attorney’s subpoena served outside of ³⁸⁹ 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 Appellant’s identity?

III

Did the trial court err in concluding that the State had met its burden of proving by clear and convincing evidence that the reliability of a pre-trial and subsequent in-court identification outweighed the impermissibly suggestive pretrial identification procedure? For the reasons set forth below, we affirm the judgments of the circuit court. FACTS AND PROCEDURAL HISTORY 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. In response to questioning, Whittington said that a person known to him as “Ace” had stabbed him. Corporal Smith inquired about Ace’s “real name,” but Whittington said he only knew the man as Ace. Whittington provided a bare-bones description of his assailant.

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 he described Ace as having a “short top” haircut. When Corporal Smith asked for any information that could lead to Ace, Whittington said that Ace’s telephone number was stored in his cell phone’s contacts list. Whittington consented to Princess Anne County Police retrieving the number from the phone, which had been left at the scene of the attack.

At the scene of the incident, Detective Sergeant Timothy Bozman located Whittington’s cell phone and retrieved from ³⁹⁰ the phone’s contact list the number associated with “Ace Campus.” Detective Bozman typed the number into an Internet search engine and determined that Sprint Communications (“Sprint”) provided service to that particular number. Detective Bozman contacted Sprint’s offices, which were located in Kansas, to obtain information about the subscriber. Sprint faxed an “exigent circumstances” request form, which Detective Bozman filled in and faxed back. Shortly thereafter, Sprint faxed to Bozman the requested subscriber information for the telephone number that had been found in Whittington’s contact list.

The information from Sprint indicated that Upshur and Desiree Davis were the subscribers for that cell phone number. Detective Bozman then ordered officers to place Upshur’s apartment under surveillance, and he also applied for a search warrant for Upshur’s 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 then 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. After Whittington had sufficiently recovered, Detective Bozman visited him at the hospital on December 9, 2010. Whittington gave a more detailed statement to Detective Bozman.

Whittington indicated that there were three men in the vehicle that had chased him. The next day, Detective Bozman returned to the hospital with some photographs to show to Whittington. Detective Bozman testified that he prepared a photographic array consisting of six color photographs. Detective Bozman hoped that Whittington could identify an occupant of the chase vehicle.

Whittington was unable to pick out anyone from the array. Then, Detective Bozman showed Whittington a single photograph which was Upshur’s booking photo. The photograph identified Upshur by name and also listed the charges that had been brought against him. Detec ³⁹¹ tive Bozman asked Whittington if he recognized the man in the photograph.

Whittington identified the person in the photograph as the person known to him as Ace. 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 that Whittington identified as associated with Ace. Sprint provided the same information it had given to Detective Bozman a month prior. Upshur filed an omnibus motion to suppress evidence, which was later supplemented by four more-detailed motions to suppress evidence.

Upshur sought to suppress the subscriber information obtained from Sprint, the out-of-court photographic identification of Upshur by Whittington, a folding knife and cell phone seized from Upshur as a result of his arrest, and various pieces of evidence seized from Upshur’s home and automobile. The circuit court held a pretrial suppression hearing on April 11, 2011. The circuit court then requested briefs from the parties, and, in a ruling from the bench on June 6, 2011, the court denied Upshur’s motions. At the conclusion of a jury trial, Upshur was convicted of second degree assault, reckless endangerment, and carrying a concealed deadly weapon.

Subsequently, Upshur was sentenced to ten years’ imprisonment for the assault charge and three years’ imprisonment, suspended, for the weapons charge. Upshur noted this appeal. STANDARD OF REVIEW In reviewing a motion court’s denial of a motion to suppress, we are limited to the record of the suppression hearing. Williams v. State, 372 Md. 386, 401 , 813 A.2d 231 (2002) (citing Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001)). “The facts found by the trial court must be considered in the light most favorable to the party who prevailed on the motion....” Id.

(citing Wilkes, supra, 364 Md. at 569, 774 A.2d 420 ; Jones v. State, 343 Md. 448, 458 , 682 A.2d 248 (1996)). The appellate court will “defer to the fact finding of the suppression court and accept the facts as found by that ³⁹² court unless clearly erroneous.” Id. (citing Wilkes, supra, 364 Md. at 569, 774 A.2d 420 ). “In determining whether a constitutional right has been violated, we make an independent, de novo, constitutional appraisal by applying the law to the facts presented in a particular case.” Id. (citing Wilkes, supra, 364 Md. at 569, 774 A,2d 420 ; Cartnail v. State, 359 Md. 272, 283-84 , 753 A.2d 519 (2000)).

See also In re Matthew S., 199 Md.App. 436, 447 , 23 A.3d 250 (2011). DISCUSSION I. The Subscriber Data Upshur contends that law enforcement officers collected his identifying subscriber data—viz., his name and address—in violation of the Maryland Stored Wire and Electronic Communications and Transactional Records Access Act (“Stored Communications Act”), Maryland Code (1973, 2006 RepLVol., 2010 Supp.), Courts & Judicial Proceedings Article (“CJP”), § 10-4A-01, et seq. The Stored Communications Act provides, in pertinent part, 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)(l)(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. CJP § 10-4A-04(c)(2)(ii).

The Stored Communications Act mirrors its federal counterpart, the Electronic Communications Privacy Act, 18 U.S.C. ³⁹³ § 2701 , et seq. The federal statute, however, includes an exception for disclosure in exigent circumstances, 18 U.S.C. § 2702 (c)(4), which the Maryland statute lacks. As the circuit court noted, Upshur’s subscriber data falls within the definition of “records” as defined by the Stored Communications Act. CJP § 10-4A-04(c)(l)(i).

In this case, Detective Bozman initially requested the subscriber data from Sprint without first obtaining a subpoena, warrant, court order, or Upshur’s consent, as required by the Stored Communications Act. Sprint provided the subscriber data to Detective Bozman on the basis of an exigent circumstances form, which would have been sufficient to authorize release under the federal statute, but does not satisfy the conditions set forth in CJP § 10-4A-04(c)(2)(ii). Furthermore, even if the Maryland Stored Communications Act did contain an exception for exigent circumstances, Detective Bozman conceded, in his testimony at the suppression hearing, that there was no such emergency at the time he requested the records from Sprint. Accordingly, the police officers’ initial procurement of Upshur’s name and address from Sprint violated the Maryland Stored Communications Act.

Upshur argues that this evidence should therefore 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. The State counters that: (a) Upshur’s subscriber data is not subject to any exclusionary rule; and, (b) even if it was, the January 11 subpoena served as an independent source and/or a form of inevitable discovery such that it removed any taint from the unlawfully obtained evidence. This Court has recognized that “[tjhere is, of course, no such thing as the Exclusionary Rule. There are many exclusionary rules, just as there are also many wrongs not redressed by the exclusion of evidence.” Chan v. State, 78 Md.App. 287, 294-95, 552 A.2d 1351 (1989).

In Chan , we elaborated upon the many exclusionary rules, and commented: “Before invoking one of these exclusionary rules, the com ³⁹⁴ plaining party must first identify the wrong allegedly done to him and then determine which, if any, exclusionary rule has been specifically provided for the redress of that particular wrong.” Id. at 295 , 552 A.2d 1351 . Accordingly, Upshur must demonstrate that an exclusionary rule is available specifically to redress the violation of the Stored Communications Act. Upshur argues that the Fourth Amendment of the United States Constitution and the Stored Communications Act, considered in combination, mandate exclusion of evidence obtained in violation of the act. The Fourth Amendment provides: “The right of the people to be secure in their persons,' houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.... ” U.S. Const. amend.

IV

The test generally used to determine if government conduct implicates the Fourth Amendment is derived from Justice Harlan’s concurring opinion in Katz v. United States: “[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” 389 U.S. 347, 361 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Only governmental conduct that “infringes an expectation of privacy that society is prepared to recognize as reasonable” constitutes a search that is subject to the exclusionary rule of the Fourth Amendment. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989) (citing California v. Greenwood, 486 U.S. 35, 43 , 108 S.Ct. 1625 , 100 L.Ed.2d 30 (1988); United States v. Jacobsen, 466 U.S. 109, 113 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984)).

This Court and others have observed that, once an individual conveys information to a third party, society does not generally recognize an expectation of privacy in that information. For example, in Smith v. Maryland, the United States Supreme Court determined that a telephone user did not have a reasonable expectation of privacy in the numbers ³⁹⁵ that he or she dialed. 442 U.S. 735, 741-42 , 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979). The Court noted: All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills.

Id. at 742 , 99 S.Ct. 2577 . See also In re Special Investigation No. 242, 53 Md.App. 360, 363-66 , 452 A.2d 1319 (1982) (noting that defendant lacked standing to raise Fourth Amendment privacy expectation in information voluntarily conveyed to a bank). Courts have drawn a distinction between the contents of communications and identifying information conveyed to an Internet or cellular telephone service provider. See Katz, supra, 389 U.S. at 352 , 88 S.Ct. 507 (“One ... is surely entitled to assume that the words he utters [into a public telephone] will not be broadcast to the world.”); United States v. Graham, 846 F.Supp.2d 384 , 399 n. 12 (D.Md.2012) (noting that contents of communications are protected by Fourth Amendment, even when using a third party’s systems and equipment, but identifying information is not).

Accordingly, 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, however, would have us forgo this inquiry because the State did not make such an argument at the trial level. Indeed, if the State does not present standing as an issue to the trial court, it generally waives an appellate challenge to the defendant’s standing to seek suppression: “A failure of the State to raise a challenge to a defendant’s standing at the suppression hearing operates as a waiver of the challenge.” Feaster v. State, 206 Md.App. 202, 215 , 47 A.3d 1051 (2012).