CA11: En Banc Review of Cell Phone Tower Data w/o Warrant

The issue of whether the government may obtain cellular telephone tower data without a warrant is scheduled for EN BANC oral argument at the Eleventh Circuit on February 24th in Atlanta.  Among the many amicus briefs filed in the case, most interestingly is that of AT&T, the nation’s largest wireless provider, who argues in its brief:

Nothing in Smith or Miller [the United States Supreme Court’s third party doctrine jurisprudence] requires that individuals must choose between participating in the new digital world through use of their mobile devices and retaining the Fourth Amendment’s protections.”  (AT&T’s Amicus Br. at pp. 20-21).

United States v. Quartavious Davis, 12-12928

En Banc Order:

Penn. S.Ct.: Reverses Drug Conviction as Text Messages were HEARSAY

While affirming that the text messages were properly authenticated (low burden – defendant admitted it was her cellular telephone), the Pennsylvania Supreme Court affirmed the mid-level appellate court’s reversal of drug charges because the same text messages constituted inadmissible hearsay:

Lawyers with trial experience know that when a party has classic hearsay evidence that it knows is harmful to the opposing party, but cannot actually identify a theory to overcome exclusion on hearsay grounds, a common fallback position is to declare that the out-of-court statements are not being offered for their truth. Counsel in such circumstances recognize that if they can manage to get the evidence admitted this way, the party’s cause will be advanced, irrespective of reliability or relevancy. But, the required analytical response to this facile fallback position is: if the hearsay is not being offered for its truth, then what exactly is its relevance? And, assuming some such tangential relevance, does the probative value of the evidence outweigh the potential for prejudice? In this case, the inquiry is not difficult because the only relevance of this evidence — drug sales text messages on appellee’s cell phone — is precisely for the truth of the matter asserted, and we have little doubt that that is precisely how the lay jury construed it.

At trial, after appellee lodged her hearsay objection while Detective Lively was on the stand, the prosecutor responded that he was not trying to prove the truth of the matter asserted in the messages, but wanted the detective to testify that he understood the messages to be similar to “buy sheets” recording and arranging drug sales and to show that “these statements were on the phone that belonged to her and that — that these other types of statements then would constitute drug receipts, drug statements, and orders.” The prosecutor later added: “[T]he purpose of this evidence is to show that [appellee’s] phone was used in drug transactions, and, therefore, it makes it more probable than not when the Defendant possessed this marijuana that she did so with the intent to deliver as opposed to personal use.” N.T., Trial, 5/26/10, at 73-79 (emphasis supplied).

The trial prosecutor’s candor should be determinative here. The prosecutor conceded that he sought to admit the message contents as substantive evidence probative of appellee’s alleged intent to engage in drug sales activity. And that is certainly how the jury would construe the messages. It requires a suspension of disbelief to conclude that the messages had any relevance beyond their substantive and incriminating import, especially because they served as a platform for the crucial expert testimony of Detective Lively. Furthermore, as the panel below recognized, the Commonwealth’s evidence of appellee’s intent to deliver, without the truth revealed in the messages (via the expert testimony of the detective), was negligible. Simply put, the messages were out-of-court statements that were relevant, and indeed proffered, for a purpose that depended upon the truth of their contents, as probative of appellee’s alleged intent to deliver. Accordingly, appellee’s hearsay objection had merit and, in light of the paucity of other evidence that she possessed illegal drugs with the intent to deliver, the trial court’s abuse of discretion in admitting the message contents was not harmless error.

In closing, we note that all sorts of inadmissible evidence may exist that might be helpful to a party’s cause, and we understand the special incentive for the Commonwealth, in criminal cases, in perfect good faith, to attempt to make use of all the helpful “evidence” it may have. This is so because, unlike the defendant, the Commonwealth generally only gets one opportunity in a case; there is a very limited prospect of appeal. But, courts must remain mindful of those legal precepts that regulate unreliable evidence, in service of higher principles, such as the right to a fair trial.

Pennsylvania v. Koch, J-16-2014 (Penn. Dec. 30, 2014)

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