No Warrant Needed for Cell Phone Tower Location Data

Do police need a warrant to access cell phone tower location data?

Last year, the 11th Circuit Court of Appeals appeared to have triggered a circuit split on this question. It initially decided that a warrant supported by probable cause was required to access cell phone tower location data. At least two other circuits had decided that a warrant was not required. But an en banc panel of the 11th Circuit reversed that opinion and held that a warrant is not required. Police only have to show "'specific and articulable facts showing that there are reasonable grounds to believe' that the records sought 'are relevant and material to an ongoing criminal investigation.'"

Cell phone tower data was used in the prosecution's case against Adnan Syed who was convicted of the 1999 murder of his girlfriend near Baltimore and documented by the Serial podcast. The 11th Circuit noted in its opinion that location data that comes through cell phone towers is not unambiguous. For example, the towers have different areas of influence. The towers can sometimes indicate if the subject cell phone was north, south, east, or west of the tower. But that information is not reliable.

Regardless of the reliability of cell phone tower data, a person's location can be very private. The 11th Circuit's decision sought to balance the individual's privacy concerns against law enforcement needs. It held that consumers should address their concerns to cell phone service providers or the legislature. "'[T]he recourse for these desires is in the market or the political process; in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections.'"

The 11th Circuit had been the first to hold that law enforcement requests for location data must be supported by probable cause. The en banc reversal makes it less likely that the United States Supreme Court will decide the issue.

State v. Davis
http://online.wsj.com/public/resources/documents/2015_0505_11thdavis.pdf

PCRA Primary Route for Late Withdrawal of Guilty Plea

In a decision issued yesterday, the Utah Court of Appeals reiterated that a criminal defendant must use the Post-Conviction Remedy Act (PCRA) to try to withdraw a guilty plea once sentencing has taken place. PCRA petitions can be costly and time-consuming, so many criminal defendants prefer to file for relief in criminal court. But the Court of Appeals' memorandum decision requires PCRA instead of a motion to withdraw a guilty plea.

State v. Tafui, 2015 UT App 118
http://www.utcourts.gov/opinions/appopin/State v. Taufui20150507.pdf

Reckless Security Broker Not a Criminal

The Court of Appeals reversed a conviction for securities fraud today based on the trial court's misleading jury instructions. Shawn Moore was convicted at trial of securities fraud, sale by an unlicensed agent, and pattern of unlawful activity. His defense was that his actions were not "willful."

The trial judge instructed the jury about the mes rea necessary for conviction in three instructions, but the most problematic was Instruction 50. While the judge instructed the jury about willful mens rea in two other instructions, those instructions were also incomplete and did not remedy the problems in Instruction 50.

Instruction 50 - The most problematic instruction

In securities law, salespeople are under a duty to investigate.
A salesperson cannot deliberately ignore that which he has a duty to know and recklessly state facts about matters of which he is ignorant. A salesperson cannot recommend a security unless there is an adequate and reasonable basis for such recommendation. By his recommendation he implies that a reasonable investigation has been made and that his recommendation rests on the conclusions based on such investigation.
Where the salesperson lacks essential information about a security, he should disclose this as well as the risks which arise from his lack of information. A salesperson may not rely blindly upon the issuer of the security for information concerning a company.

This instruction clearly conflates the willful mens rea required by the statute with the much lower reckless mens rea by actually using the word "recklessly." The Court of Appeals also stated that "Nowhere in the applicable statutory framework is there any language akin to Instruction 50 imposing criminal liability for acts amounting to willful blindness or a violation of a duty to know."

Surprisingly, the trial court drew the language for Instruction 50 from an SEC case suspending brokers' licenses. That case held that the standard for the license revocation was much lower than the criminal or even the civil standard.

Interesting Dicta
Judge Davis, who authored the opinion, went on to briefly address certain issues that he thought might arise on remand but that he was not required to reach because the Instruction 50 issue was dispositive. The other judges on the panel disagreed that the issues should be reached and, so, did not join. Nevertheless, his thoughts on the subjects could be helpful. The following are the issues he addressed.

1. In criminal cases, experts cannot offer opinions on whether the defendant possessed a certain mental state.
2. Trial judges must address all the mandatory factors in making a restitution ruling.

2015 UT App 112, http://www.utcourts.gov/opinions/appopin/State v. Moore20150430.pdf

Prosecutor can't say "Don't let them take advantage of her again."

Lawyers are allowed broad latitude in closing arguments and they use it. But some statements cross a line. It is often hard to know where that line is. The Utah Court of Appeals articulated one line that cannot be crossed in sexual assault cases.

David Akok and John Jok were charged with sexually assaulting a woman referred to by the Court of Appeals as N.C. They were tried in a single trial and convicted. During closing argument, the prosecutor made the following statement:

And when you look at the totality of the evidence it is very clear that [Defendant and the codefendant] engaged in sexual intercourse and touched her without her consent. They took advantage of a very vulnerable victim. Don’t let them take advantage of it [the victim] again. Thank you.

The trial attorneys for the defendants moved the court for a mistrial and the trial judge denied their motion. The trial attorneys asked the judge to instruct the jury to disregard the last statement. The judge gave a general curative instruction that closing arguments are not evidence.

In order for a defendant to win reversal based on an improper statement made during closing argument a defendant has to show two things: (1) that the statement "called to the attention of the jury a matter it would not be justified in considering in determining its verdict" and (2) whether it is likely that the statement prejudiced the defendants.

The Court of Appeals held that the prosecutor's statement was improper because it asked the jury to protect the victim, not to apply the law impartially. The court's analysis was somewhat sparse on this point, but it seems to suggest that the jury could have decided that it was somewhat likely that she had been victimized even if the State failed to prove its case beyond a reasonable doubt. If the jury felt it had a duty to protect the victim even if the law did not allow a conviction, then it was improperly influenced by the prosecutor's statement.

The court was troubled that the offending statement occurred during the prosecution's rebuttal argument. As such, the defendants did not have any opportunity to respond to the argument that the jury had the responsibility to protect N.C.

The court also held that the trial court's curative instruction was inadequate because it was too broad, did not single out the offending statement, and merely repeated previous instructions.

In light of this case, prosecutors must be careful to focus on whether the facts prove the case beyond a reasonable doubt and avoid suggesting any other standard or reason for conviction. Defense counsel must be vigilant of improper statements in closing and ask for mistrials and curative instructions when they are made.

State v. Akok, 2015 UT App 89
http://www.utcourts.gov/opinions/appopin/akok150416.pdf
State v. Jok, 2015 UT App 90
http://www.utcourts.gov/opinions/appopin/jok150416.pdf

Can throwing laundry on the floor qualify as stalking?

Stephen Bingham piled his wife's belongings on the floor of their shared apartment and sent her a message telling her to "come get [her] crap out of the kitchen." On another occasion, he went to her place of work and, when she asked him to leave, he refused and was escorted away by security. In a third incident, the wife rented an apartment and saw Mr. Bingham driving nearby in his car a few minutes after she signed the lease. For these incidents, Mr. Bingham was convicted of stalking, sentenced to nine months in jail, and fined $1,000.

On appeal, Bingham raised four clams of error: (1) there was insufficient evidence to support his conviction, (2) the trial court should have granted his motion for a directed verdict, (3) the trial court should have made a finding regarding his intent to commit the crime of stalking, and (4) his trial counsel was ineffective for failing to introduce medical evidence.

The Court of Appeals spent most of its time in its opinion addressing the first claim and dealt summarily with the other three.

Sufficiency of the Evidence
Bingham's principal claim of error was that there was insufficient evidence to support his conviction. The evidence cited by the Court of Appeals is slim. Yet the court held that the evidence was sufficient.

To prove stalking, the prosecution must show that the accused engaged in a "course of conduct" that "would cause a reasonable person to fear or experience emotional distress." The Bingham decision answers the following questions related to stalking cases:

1. What qualifies as a "course of conduct?"
2. Does the person being stalked have to experience fear or emotional distress?
3. Can otherwise legal conduct qualify as stalking behavior?

What is a "course of conduct?"

The Bingham decision makes clear that stalking must involve at least two "qualifying acts." In this case, the prosecution only alleged three qualifying acts: he (1) piled his wife's belongings in their kitchen and texted her telling her to come and get them, (2) went to his wife's workplace and refused to leave when she asked him to, and (3) was seen near an apartment soon after his wife rented it.

Any one of these actions alone could not qualify as stalking. As the Court of Appeals held in Butters, "a single isolated act cannot qualify as a course of conduct." If the State had failed to carry its burden of proof on two of the three alleged acts, it could not have proven stalking because "[s]talking, by its very nature, is an offense of repetition and can be accomplished only if [two or more] acts directed at a specific person are linked together." Quoting Butters v. Herbert, 2012 UT App 329.

Does a person being stalked have to experience fear or emotional distress?

No. Utah uses an objective test to determine whether an act would put a reasonable person in fear or cause them to experience emotional distress.

Bingham argued that the State provided insufficient evidence that his wife reacted fearfully to his behavior when he went to her place of work. In response, the Court of Appeals held that "a finding of stalking does not require any particular reaction on the part of the victim."

As the Utah Supreme Court held in Baird, "Under the [s]talking [s]tatute's solely objective standard, the subjective effect of the [actor's] conduct on the [victim] is irrelevant." Quoting Baird v. Baird, 2014 UT 08.

Can otherwise legal conduct qualify as stalking behavior?

Bingham argued that it was not illegal for him to enter their apartment and put her belongings in the kitchen because they lived together at that time. It was also not illegal for him to go to her workplace. Finally, he claims that he arrived at his wife's street near her apartment by accident. None of these incidents was illegal unless they qualified as stalking.

The trial court did not believe that Mr. Bingham arrived at his wife's street by accident. But the trial court found that each of the incidents was enough to provoke fear or emotional distress in a reasonable person. The Court of Appeals agreed and affirmed the conviction.

Bingham shows that the Court of Appeals is very reluctant to overturn a trial court's finding that otherwise legal conduct would provoke fear or cause emotional distress in a reasonable person.

Decision on utcourts.gov website: State v. Bingham, 2015 UT App 103.