GA: Police calling 911 from cell phone left in cab did not involve an expectation of privacy [clearly wrong reason; right result]

Defendant fled a taxicab to avoid the fare but left his cell phone behind. The police used the phone to call 911 to capture his name, phone number, and other 911 information. This wasn’t a search, and it was governed by Smith, that information voluntarily turned over to another is not protected by a reasonable expectation of privacy. [The complete answer to that is that defendant didn’t turn over the information voluntarily; the police dialed 911 to make the call, and was that a seizure? The court botches this one by deciding it this way. Abandonment of the phone wasn’t even decided, and it clearly was the easier and more logical argument than attempting say there was a lack of a reasonable expectation of privacy without having to strain to make something up to sound profound.] State v. Hill, 2016 Ga. App. LEXIS 432 (July 13, 2016):

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 (II) (B) (99 SCt 2577, 61 LE2d 220) (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].” Id. at 742. We find that he had no legitimate expectation of privacy in this information.

While 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 A2d 455, 466 (Pa. 2003). Examples of cases in which courts have found no legitimate expectation of privacy and thus no Fourth Amendment protection include: Smith, supra, 442 U. S. at 743-747 (II) (B) (government used “pen register” to record telephone numbers of calls made from defendant’s landline phone); United States v. Forrester, 512 F3d 500, 509-511 (III) (B) (1) (9th Cir. 2008) (government used “mirror port” technology to learn, among other things, the “to/from” addresses of defendant’s e-mail messages); United States v. Choate, 576 F2d 165, 174-177 (9th Cir. 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 (I) (Cal. App. 1976) (government obtained name and address of subscriber to particular telephone number); Ensley v. State, 330 Ga. App. 258, 259 (765 SE2d 374) (2014) (government obtained subscriber information associated with defendant’s Internet service account); Stephenson v. State, 171 Ga. App. 938 (321 SE2d 433) (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. Neely, 2012 Ohio 212, 2012 Ohio App. LEXIS 165, *11 (III) (Ohio App. 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”); Duncan, supra, 817 A2d at 465-469 (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 A3d 1253, 1259 (II) (N.J. Super. 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).

Two 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.” United States v. Carpenter, 819 F3d 880, ___ (II) (A) (6th Cir. 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, supra, 171 Ga. App. at 939 (citation and punctuation omitted). See generally Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1019 (II) (A) (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, supra, 442 U. S. at 743-744 (II) (B) (citations omitted). 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 (4th Cir. 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, supra at 744 (II) (B). See also Ensley, supra, 330 Ga. App. at 259. 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.” United States v. Sanford, 2013 U. S. Dist. LEXIS 73624, *3 (E. D. Mich. 2013).

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 United States v. Skinner, 690 F3d 772, 777-778 (II) (A) (6th Cir. 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 United States v. L’Isle, 2016 U. S. App. LEXIS 10345, **9-13 (II) (8th Cir. 2016); United States v. Bah, 794 F3d 617, 629-633 (6th Cir. 2015). Although 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, ___ U. S. ___ (134 SCt 2473, 189 LE2d 430) (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 S3d 331, 344 (La. App. 2015). See also United States v. Lowe, 2014 U. S. Dist. LEXIS 145457, *20 (II) (A) (D. Nev. 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 Dept., 2014 U. S. Dist. LEXIS 90369, at **9-10 n. 4 (E. D. Va. 2014).

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