WILLIAM D. QUARLES, JR., District Judge.
Master Giddins is charged with bank robbery and conspiracy to commit bank robbery. ECF No. 1. Pending are Giddins's motions: (1) to suppress custodial statements (ECF No. 14), and (2) to suppress historical cell site location data (ECF No. 20). A hearing was held on September 29, 2014. For the following reasons, Giddins's motions will be denied.
On September 25, 2013, someone entered the M & T Bank at 329 W. Baltimore Street, Baltimore City, Maryland wearing women's clothing and a black wig. ECF
On September 26, 2013, Giddins lent his Ford Focus to Fludd and another female, Ashley Fitz, which they used to rob the 1st Mariner Bank at 4800 Painters Mill Road, Owing Mills, Maryland. Id. Before entering the bank, Fludd drove the Ford Focus to an Exxon station near the bank and obtained blank lottery tickets. Id. Fludd and/or Fitz wrote a note similar to the note used in the September 25 robbery on a ticket. Id. Fitz went into the bank wearing the black wig and using the black and white polka dot cosmetic bag that had been used in the September 25 robbery; she handed the bag to the teller with the note. Id. The teller gave cash to Fitz, who then ran from the bank. Id. A nearby construction worker saw Fitz and Fludd get into Giddins's Ford Focus. Id. They were also recorded on video at the Exxon station where Fludd obtained the blank lottery tickets. Id. Proceeds from the robbery were allegedly split between Fitz, Fludd, and Giddins. Id.
On September 27, 2013, Giddins again lent his automobile to Fitz and Fludd, and another female co-conspirator Alexis Chandler. Id. Fludd drove Fitz and Chandler to the Baltimore County Savings Bank, 515 Eastern Avenue, Baltimore County, Maryland. Id. Fitz and Chandler, wearing wigs, entered the bank, produced notes saying they had a bomb, and demanded money. Id. The tellers provided them with cash, and Fitz was given a dye pack. Id. at 2-3. Fitz and Chandler left the bank and got into the Ford Focus driven by Fludd. Id. at 3. The dye pack exploded, and Fitz threw the handbag with the exploded dye pack out the car window. Id. The wigs and some other items were also discarded. Id. Police stopped the car after receiving a broadcast description of the suspects and the silver Ford Focus. Id. Police recovered evidence from the car and the scene. Id.
Fitz and Chandler provided statements to investigators after being advised of their rights. Id. Fitz and Chandler admitted the robberies and their involvement. Id. All three banks were FDIC insured. Id. An arrest warrant was issued for Giddins. ECF No. 32 at 2.
On October 4, 2013, Giddins went to Baltimore County police headquarters to obtain his car. ECF No. 19 at 3. Officers placed Giddins in an interrogation room. Id. Giddins asked Detective Morano, "Am I in trouble?" and Detective Morano replied, "No, you're here getting your car, right?" ECF No. 32 at 2; Interview Tr. at 3. Detective Morano left the room. ECF No. 32 at 2.
A few minutes later, Detective Taylor entered the interview room. Id.
At 10:28:15 (on the recorded video interview), Detective Taylor told Giddins that before the police could return his car, they had to explain his rights. ECF No. 32 at 3. Detective Taylor stated:
ECF Nos. 33 at 3, 32 at 3; Interview Tr. at 8-9. Giddins read aloud from the Miranda waiver and stated that he understood his rights. Interview Tr. at 9. When asked if he had any questions, the following exchange occurred:
Interview Tr. at 9-11.
At 10:31, Giddins told the detectives that he thought he was being "interrogated." He observed that he was "in a closed room, two guys are here, they locked the door ...." ECF No. 32 at 4; Interview Tr. at 11. The recorded video interview shows Detective Taylor stated that one of the two interview doors was "wide open." ECF No. 19-1; see also Interview Tr. at 11. Giddins was not handcuffed. Id. No weapons are visible in the recorded interview.
Detective Taylor questioned Giddins about his "relationship with the three young women, his loaning of the car to them, his work schedule, and other topics relating to the bank robberies." Id. Then, Detective Taylor showed Giddins a surveillance photograph and told him he was a suspect in the bank robberies. ECF No. 32 at 4. Giddins asked for a lawyer; questioning stopped, and Giddins was arrested. ECF Nos. 19 at 3, 19-1. After his arrest, Giddins's cellphone and other items in his pockets were seized. ECF No. 19-1. The cellphone was locked, and police officers did not search the contents of the cellphone. ECF No. 19 at 5.
During the October 4, 2013 interview described above, Giddins provided the investigator with his cellphone number. ECF No. 23 at 3. On December 20, 2013, agents applied for a court order under 18 U.S.C. § 2703(d) (2012) for subscriber information, historical call records, and historical GPS/cell site information. Id.; see also ECF No. 23-1.
On March 12, 2014, Giddins was indicted on three counts of bank robbery in violation of 18 U.S.C. § 2113(a),(f) (2012),
On April 8, 2014, Giddins moved to suppress custodial statements. ECF No. 14. On August 4, 2014, Giddins moved to suppress historical cell site location data and its fruits. ECF No. 20. On August 1, 2014, the government opposed Giddins's motion to suppress statements. ECF No. 19. On August 7, 2014, the government opposed Giddins's motion to suppress historical cell site location data. ECF No. 23. On September 24, 2014, Giddins replied to the government's opposition to his motion to suppress statements. ECF No. 32. On September 25, 2014, the government supplemented its opposition to Giddins's motion to suppress statements. ECF No. 33.
Giddins contends that his statements were obtained in violation of the Fifth and Sixth Amendments to the United States Constitution, and were involuntary. ECF
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires the police to inform a suspect that he has the right to remain silent and the right to the presence of an attorney before any "custodial interrogation." See Miranda, 384 U.S. at 479, 86 S.Ct. 1602.
A suspect is "`in custody' for Miranda purposes either if he has been arrested or if his freedom of action has been curtailed to a degree associated with arrest." United States v. Pope, 212 Fed. Appx. 214, 218 (4th Cir. 2007) (quoting United States v. Sullivan, 138 F.3d 126, 130 (4th Cir. 1998)). The inquiry is objective, "and asks whether a reasonable man in the suspect's position would have understood his situation to be one of custody"; in other words, whether the suspect felt free to leave. United States v. Hashime, 734 F.3d 278, 282-83 (4th Cir. 2013) (internal quotation marks omitted); see also J.D.B. v. North Carolina, ___ U.S. ___, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). Relevant factors include the time, place, and manner of the interrogation; isolation from family; an officer's words, tone, and demeanor; the presence of multiple officers; whether a weapon was displayed; and whether physical contact occurred between the officer and the suspect. Hashime, 734 F.3d at 283.
When a suspect in custody has invoked his right to counsel, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
However, "routine booking question[s]" securing "the biographical data necessary to complete booking or pretrial services" are exempt from Miranda. Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (internal quotation marks omitted) (name, address, height, weight, eye color, date of birth, and current age admissible without Miranda warnings); United States v. D'Anjou, 16 F.3d 604, 608 (4th Cir. 1994). The exception does not apply to routine booking questions intended to elicit incriminating statements. D'Anjou, 16 F.3d at 608. Routine booking questions obtaining identifying information that later proves incriminating are exempt. United States v. Taylor, 799 F.2d 126, 128 (4th Cir. 1986) (suspect's provision of a false name and alias after he invoked his Miranda rights admissible to disprove alibi).
A waiver of Miranda rights must be voluntary, knowing, and intelligent. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). A waiver is voluntary, knowing, and intelligent if it was "the product of a free and deliberate choice rather than intimidation, coercion, or deception," and if it was "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id.; see also United States v. Cristobal, 293 F.3d 134, 138-40 (4th Cir. 2002) (suspect
The Court engages "in the same inquiry when analyzing the voluntariness of a Miranda waiver as when analyzing the voluntariness of statements under the Due Process Clause," Cristobal, 293 F.3d at 140. The test for determining voluntariness "is whether the confession was `extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.'" United States v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (quoting Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976) (alterations in original)). "The mere existence of threats, violence, implied promises, improper influence, or other coercive police activity, however, does not automatically render a confession involuntary." Id. The Court must ask whether "the defendant's will has been overborne or his capacity for self-determination critically impaired because of coercive police conduct." Id.
Police deception, standing alone, does not render a suspect's statements involuntary. See Frazier v. Cupp, 394 U.S. 731, 737, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (officer's misrepresentation that suspect's companion had confessed did not render confession inadmissible); United States v. Haynes, 26 Fed.Appx. 123, 134 (4th Cir. 2001) (unpublished) (confession voluntary when officers lied to suspect about the evidence they had obtained during 16-hour interrogation).
Here, before providing Miranda warnings, Detective Taylor only asked Giddins routine, booking-type questions, ECF No. 19 at 3; Interview Tr. at 3-8, that did not require warnings. Thus, Giddins's pre-warning statements are admissible.
Further, Giddins voluntarily entered the police station to obtain the return of his car. ECF No. 19 at 3. Giddins was not in handcuffs, and one door was unlocked. ECF No. 19-1. Two investigators were present; one asked questions while the other remained silent. Id. No weapons are visible in the recorded interview. Id. Detective Taylor's tone was nonthreatening. Id. Although an arrest warrant had issued, ECF No. 32 at 2, Giddins was apparently unaware of this fact and, thus, it does not alter the objective inquiry.
Giddins's waiver of his Miranda rights was voluntary. He read his rights aloud, signed his name and initials, and responded that he understood his rights. Interview Tr. at 9. That Giddins waived his rights under the apparent belief it would aid in the return of his car was not the police coercion necessary to overbear Giddins's will or seriously impair his capacity for self-determination.
Accordingly, Giddins voluntarily waived his Miranda rights and, thus, his post-warning statements are admissible.
In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Sixth Amendment right to counsel "attaches only at or after the initiation of adversary judicial proceedings against the defendant." United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). "[T]he right to counsel does not attach immediately after arrest and prior to arraignment." United States v. Alvarado, 440 F.3d 191, 199-200 (4th Cir. 2006)(citing United States v. D'Anjou, 16 F.3d 604, 608 (4th Cir. 1994) (denying motion to suppress statements made after formal charging but prior to arraignment)).
Here, Giddins's Sixth Amendment right to counsel had not attached when he was questioned by police. Thus, no Sixth
Giddins contends that the government's warrantless gathering of cell site location data violated Giddins's Fourth Amendment right to privacy. ECF No. 20 ¶ 3.
The government obtained the court order under the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2703(c) and (d). Section 2703(c) provides, inter alia:
18 U.S.C. § 2703(c)(1) (2012). Section 2703(d) provides, inter alia:
Id. § 2703(d) (emphasis added).
Giddins cites the U.S. Supreme Court's recent decision in Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), as support for his contention that obtaining cell site location data without a warrant violates the Fourth Amendment. ECF No. 20 ¶ 3.
In Riley, the Court stated that "[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse," and held that police must obtain a search warrant before searching a cellphone's contents, 134 S.Ct. at 2485, 2488. Although the Court noted that "[h]istoric location information is a standard feature on many smart phones and can reconstruct someone's specific movements down to the minute," id. at
Riley did not address the constitutionality of using 18 U.S.C. § 2703(d) to obtain historical cell site location data from third-party cellphone providers when there are "specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation." Riley does not resolve the issue.
The Fourth Circuit Court of Appeals has not addressed whether aggregated GPS surveillance implicates the Fourth Amendment warrant requirement. In United States v. Graham, 846 F.Supp.2d 384 (D.Md.2012),
Because the collection of data did not involve physical trespass to private property, Graham analyzed the gathering of cell site location data under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See Graham, 846 F.Supp.2d at 396 (citing United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 953, 181 L.Ed.2d 911 (2012)) (Scalia, J.) ("Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis."). In deciding that the defendant did not have a legitimate expectation of privacy in his cell site location data, Graham relied on the business records/third-party doctrine explained by the U.S. Supreme Court in United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) and Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Id. at 403.
As the U.S. Supreme Court has repeatedly held,
Miller, 425 U.S. at 443, 96 S.Ct. 1619 (citing United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)).
In Miller, the Court held that the defendant, Mitch Miller, did not have a protected privacy interest in business records kept by a bank about accounts in his name. Id. at 440, 96 S.Ct. 1619. They were not Miller's "private papers," but were records maintained by the bank. Id.
Miller argued that the bank records implicated the Fourth Amendment because they were copies of his personal records—checks and deposit slips—that he made available to the bank. Id. at 442, 96 S.Ct. 1619. Rejecting this argument, the Court stated that the records "contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business." Id. Thus, the Court held, Miller did not have a reasonable
In Smith, the Court affirmed "that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith, 442 U.S. at 743-44, 99 S.Ct. 2577 (no expectation of privacy in record of telephone numbers dialed). First, the Court noted that telephone users "must convey phone numbers to the telephone company," and that users know that the "phone company has facilities for making permanent records of the numbers they dial." Id. at 742, 99 S.Ct. 2577 (internal quotation marks omitted).
Most courts addressing this issue have relied on the business records/third-party doctrine to affirm the government's acquisition of cell site location data under § 2703(d)'s "specific and articulable facts" standard. See Graham, 846 F.Supp.2d at 389 (collecting cases). Because cellphone users "voluntarily convey their cell site location data to their cellular providers, they relinquish any expectation of privacy over those records," and, therefore, obtaining those records without probable cause does not violate the Fourth Amendment. Id.
The Fifth Circuit, in the context of overturning a magistrate judge's denial of a court order under § 2703(d), held that "[c]ell site data are business records." In re U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir.2013). Provided "the [g]overnment meets the statutory requirements" of § 2703, the magistrate judge does not have discretion to deny the application. Id. Recognizing the need to balance privacy interests and technological change, the Court noted that "[a] legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way." Id. at 614 (quoting Jones, 132 S.Ct. at 964) (Alito, J., concurring in the judgment). That is what Congress did when it enacted § 2703. Id.
Some courts have held otherwise.
The Eleventh Circuit found instructive the U.S. Supreme Court's opinion in Jones. In distinguishing Jones in favor of the defendant, the Court explained:
Davis, 754 F.3d at 1216.
The Fourth Circuit has applied the business records/third-party doctrine to affirm the issuance of administrative subpoenas against a Fourth Amendment challenge. See United States v. Bynum, 604 F.3d 161 (4th Cir.2010). In Bynum, the FBI served Yahoo!, Inc. ("Yahoo") an administrative subpoena requesting subscriber information entered into the Yahoo website and internet protocol ("IP") addresses associated with uploads to the Yahoo website, 604 F.3d at 162-63. Using information provided by Yahoo, the FBI issued a subpoena to UUNET Technologies to obtain information on the customer associated with the IP address. Id. From there, the FBI subpoenaed records from telephone and internet companies operating the defendant's dial-up internet service. Id. Those companies provided the FBI with the defendant's name and physical address. Id.
The Fourth Circuit held that the defendant did not have a subjective expectation of privacy in internet and telephone subscriber information because he voluntarily conveyed that information to third-parties. Id. at 164. Even if he did, "such an expectation would not be objectively reasonable." Id. "Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation." Id. (quoting United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008) (collecting cases)).
Here, the records were not Giddins's "private papers," but were business records made and maintained by Sprint. Giddins voluntarily transmitted a signal to a cell tower upon making a call or sending a text message. Although one may argue that a cellphone user, like Giddins, receiving a call or text message "hasn't voluntarily exposed anything at all," Davis, 754 F.3d at 1217, Giddins relied on the signal transmission from the cell tower to pick up the call (or text message). Transmission information was used by Sprint to generate its location data, and, thus, the records at issue here were Sprint's business records.
In light of U.S. Supreme Court precedent, and the application of the business records/third-party doctrine by the Fourth Circuit, the Court finds that Giddins's Fourth Amendment rights were not violated when the government obtained his cell site location data pursuant to a court order under § 2703(d).
Further, although the government is not required to obtain a warrant supported by probable cause, the government must, at a minimum, support its application with "specific and articulable facts showing that there are reasonable grounds to believe
When a Fourth Amendment violation occurs, suppression of evidence is not automatic. The purpose of the exclusionary rule is to deter law enforcement from violating the Fourth Amendment. Illinois v. Krull, 480 U.S. 340, 349, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). "The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have . . . little deterrent effect." Id. When "the officer's conduct is objectively reasonable,. . . `[e]xcluding the evidence will not further the ends of the exclusionary rule in any appreciable way.'" Id. (quoting United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).
Here, it was objectively reasonable for investigators to rely on § 2703(d) to obtain Sprint's records. Section 2703(c)(1) requires a provider to disclose "a record or other information pertaining to a subscriber to or a customer of [its] service" when the government obtains a court order under § 2703(d). Cell site location data is "a record . . . pertaining to" Giddins, as a subscriber/customer of Sprint's services.
Accordingly, the officer's good faith reliance on a federal statute cures any Fourth Amendment violation that may have occurred. Accordingly, the Court will deny Giddins's motion to suppress historical cell site location data.
For the reasons stated above, the Court will deny Giddins's motions to suppress custodial statements and historical cell site location data.
The Order issued on the basis of the above facts stated that the government had provided "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." ECF No. 23-1 at 6; see also 18 U.S.C. § 2703(d). However, the facts stated in the application arguably provided "probable cause to believe that the information to be obtained [was] evidence of a crime." In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F.Supp.2d 526, 560 (D.Md. 2011) (quoting Electronic Communication Privacy Act Reform: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 39-40 (2010) (statement of Orin Kerr, Professor, George Washington Univ. Law School)).
"Probable cause is a flexible standard that simply requires `a reasonable ground for belief...' and `more than bare suspicion.'" United States v. Ortiz, 669 F.3d 439, 444 (4th Cir. 2012) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). The resemblance between Giddins and the surveillance photograph, the matching wig, sweater, and polka dot bag, and Chandler's statements gave officers "more than bare suspicion" that Giddins was involved in the robberies and that his cellphone location data would provide evidence of his alleged involvement. Thus, officers likely had sufficient grounds for obtaining Giddins's cellphone location data under 18 U.S.C. § 2703(c)(1)(a) (pursuant to a warrant) as well as under 18 U.S.C. § 2703(d) (pursuant to a court order).
18 U.S.C. § 2113(a). Section 2113(f) defines "bank" as:
Id. § 2113(f).
18 U.S.C. § 371.
Giddins cites Lall to support the notion that when police tell a defendant he is not in trouble, any subsequent Miranda waiver may be involuntary. He cites Beale to support the notion that Miranda warnings must not be misleading. ECF No. 32 at 4-5.
Besides not being controlling authority, Lall and Beale are distinguishable. Here, Detective Taylor did not promise Giddins that he would not pursue charges against him in exchange for Giddins's statement and did not state that Giddins was not in any trouble. Giddins was advised that anything he said may be used against him. Interview Tr. at 9. When Giddins asked if he was in trouble, Detective Taylor responded, "Not at this point, no. We'll find out what's going on. So long as you don't ... sit there and tell me you were hiding in the trunk and you escaped when the police pulled them over, no." Id. at 11. Detective Taylor essentially told Giddins he was not in trouble provided he had not done anything wrong, thus leaving open the possibility that if Giddins had participated in the robberies, he may be "in trouble," and his statements may be used against him.
