©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On November 5, 2012, the Supreme Court of Georgia decided Registe v. State [i] which provides excellent guidance regarding the release of non-content cellular phone records. The facts of Registe are as follows:
The record shows that Registe has been indicted for the July 20, 2007 murder of two men who were shot in the head some time after borrowing a car from Lawrence Kidd. The next morning, Kidd told police that the victims were going to meet someone named “Mike,” and Kidd provided Mike’s cell phone number. Using this cell number, Detective R. Jackson faxed Cricket Communications, the cell service provider, the following message on July 21, 2007:
The Columbus Police Dept. is currently investigating a double homicide which occurred at approximately 2130 hours on 07-20-07. We have information that the victim last met with the owner of this phone (706-617-3602) which makes him a suspect at this time. Obviously this suspect presents an immediate danger to any law enforcement officer who may come into contact with this person. We are requesting information as to the owner of this phone as well as any calls to and from this number within a two hour period starting at 8:30 pm to 13:30 pm on 07-20-07 EST. Thank you for your cooperation.
Cricket Communications responded on July 22, 2007 with the requested information. Cricket reported that the account belonged to “Kareem Penn,” an alias of Registe.
After cold calling numbers in the phone records provided by Cricket, the police spoke with Michael Brown, who stated he had picked up Registe at a time shortly after the shootings. Brown named others who had information. Combined, these individuals stated they had seen blood on Registe’s clothing, and they named the hotel where Registe spent time. Through persons at the hotel and photo identification by Brown and his acquaintances, “Mike” was identified as Registe, and, on July 22, 2007, an arrest warrant was issued. On July 24, 2007, the Columbus Police executed a search warrant at an apartment linked to Registe where they found a gun and the cell phone assigned to the phone number at issue in this case. Later, on September 19, 2007, Columbus Police acquired a court order for the production of documentary evidence from Cricket Communications, specifically the cell phone records of Kareem Penn from July 10, 2007 to July 25, 2007. [ii]
Registe filed a motion to suppress the cell phone records that were initially obtained from Cricket Communications. The trial court denied the motion and ultimately, Registe appealed to the Supreme Court of Georgia. The issue on appeal was whether the trial court erred in denying the motion to suppress.
At the outset, the court stated:
As an initial matter, telephone billing records are business records owned by the telephone company, not the defendant. As a result, defendants generally lack standing to challenge the release of such records under the Fourth Amendment because they do not have a reasonable expectation of privacy in records belonging to someone else. Kesler v. State, 249 Ga. 462, 469 (5) (291 SE2d 497) (1982). [iii] [emphasis added]
Thus, the court stated that Registe cannot challenge the government’s obtaining and use of the cell phone records based upon the Fourth Amendment.
As such, Registe challenged the government obtaining and using as evidence the cell phone records based on Georgia law, particularly O.C.G.A. § 16-11-66.1 which states the following:
(a) A law enforcement officer, a prosecuting attorney, or the Attorney General may require the disclosure of stored wire or electronic communications, as well as transactional records pertaining thereto, to the extent and under the procedures and conditions provided for by the laws of the United States. (b) A provider of electronic communication service or remote computing service shall provide the contents of, and transactional records pertaining to, wire and electronic communications in its possession or reasonably accessible thereto when a requesting law enforcement officer, a prosecuting attorney, or the Attorney General complies with the provisions for access thereto set forth by the laws of the United States. [iv]
Further, the “laws of the United States” to which the above code section refers is 18 U.S.C. § 2701 et seq, which governs mandatory and voluntary disclosure of electronic communications. Particularly at issue was 18 U.S.C. § 2702(c)(4) which allows a cell phone provider to voluntarily release non-content records, including subscriber information
[T]o a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency. [v]
Registe argued that that, in his case, there were no emergency conditions supporting a release of the telephone records. However, the court noted that suppression of evidence is not an available remedy under O.C.G.A. § 16-11-66.1 (violations are punishable by contempt) or 18 U.S.C. § 2702(c)(4) (which allows for a civil action for violations). However, Registe points to O.C.G.A. § 16-11-67 which states:
No evidence obtained in a manner which violates any of the provisions of this part [regarding wiretapping, eavesdropping, surveillance, and related offenses] shall be admissible in any court of this state except to prove violations of this part. [vi]
Thus, Registe argued that under O.C.G.A. § 16-11-67, the phone records should be inadmissible because no emergency existed at the time the records were obtained by law enforcement. The court, however, disagreed and stated that this code section only applies to mandatory releases of information and the police obtained Registe’s records under the provider’s voluntary release of information. Thus, the court stated that since Cricket (the provider) voluntarily released the information with good faith belief that a danger existed, the release was appropriate, and the information was obtained lawfully under 18 U.S.C. § 2702(c)(4) which governs the voluntary release of information; as such, O.C.G.A. § 16-11-67 does not apply.
As such the Supreme Court of Georgia held:
The voluntary release of Registe’s cell phone records by Cricket to the police complied with the state and federal statutory provisions cited above and precluded suppression of the evidence. Registe’s motion to suppress was properly denied. [vii]
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] S12A1190, 2012 Ga. LEXIS 862 (November 5, 2012)
[ii] Id. at 1-3
[iii] Id. at 3
[iv] Id. at 4
[v] Id. at 5
[vii] Id. at 7