Marcus Zanders v. State of Indiana , 118 N.E.3d 736 ( 2019 )

FILED
Mar 08 2019, 9:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 15S01-1611-CR-571
Marcus Zanders,
Appellant (Defendant)
–v–
State of Indiana,
Appellee (Plaintiff)
Argued 1: September 26, 2018 | Decided: March 8, 2019
Appeal from the Dearborn Superior Court, No. 15D02-1502-F3-3
The Honorable Sally A. McLaughlin, Judge
On Remand from the Supreme Court of the United States, No. 17-166
Opinion by Chief Justice Rush
Justices David, Massa, Slaughter, and Goff concur.
1 We held oral argument in Anderson at Anderson University. We thank the university for its
outstanding hospitality; the parties for their travel and excellent advocacy; and the students
from Anderson Christian School, Anderson University, Burris Laboratory School, Daleville
Junior-Senior High School, The Excel Center of Anderson, Indiana Christian Academy,
Inspire Academy: A School of Inquiry, Lapel High School, Liberty Christian School, Muncie
Central High School, Tri Central Middle-High School, Wapahani High School, and Wes-Del
High School for their respectful attention and insightful questions.
Rush, Chief Justice.
As technology advances, what was once the stuff of science fiction may
enter the canon of constitutional law. Illustrating this in Carpenter v. United
States, 585 U.S. ----, 138 S. Ct. 2206 (2018), the Supreme Court of the United
States addressed a question concerning cell phone location information:
When the State accesses a person’s historical cell-site location information
(CSLI), has the State conducted a search under the Fourth Amendment?
The Court’s answer: generally, yes. Carpenter made clear that seven
days’ or more worth of CSLI accessed constitutes a search—and also left
open the possibility that accessing even fewer days of CSLI could
constitute a search. This means that the State generally must obtain a
warrant before procuring a person’s CSLI.
When it decided Carpenter, the Court also granted certiorari in the case
before us, vacated our prior decision, and remanded the case to us for
reconsideration in light of Carpenter. We ordered supplemental briefing
and oral argument.
We now hold that accessing Marcus Zanders’s CSLI was a Fourth
Amendment search under Carpenter, but even if the CSLI evidence should
have been excluded, the error was harmless beyond a reasonable doubt.
We thus affirm Zanders’s convictions.
Facts and Procedural History
In the winter of 2015, police were investigating two armed robberies
that had occurred less than one week apart at liquor stores in Dearborn
County, Indiana.
The first one occurred around 9:17 p.m. on Saturday, January 31, at
Whitey’s Liquor Store in Lawrenceburg, Indiana. A lone, masked man
entered the store and pointed a black handgun at the store clerk, Kenny
Butler. The man demanded cash from the register; Newport cigarettes;
Patrón tequila; and the store’s phone, which he ripped apart. He ordered
Butler to lie on the floor, and then left.
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The second robbery occurred the following weekend at J & J Liquor in
Dillsboro, Indiana. Around 9:26 p.m. on Friday, February 6, a lone,
masked man entered the store and pointed a black handgun at the store’s
two clerks, Danielle Pruitt and Lisa Huddleston. He demanded cash from
the registers and whatever phones they had in the store. He took the cash
and phones, ordered the clerks to lie on the floor, went to the store’s
tequila section, and left. Once he was gone, the women noticed that a 1.75-
liter bottle of “1800 Silver” tequila was missing from the liquor shelves.
As part of their investigations, police interviewed eyewitnesses and
reviewed the security-camera video footage from each robbery. One
witness, who lived across the street from J & J, had seen a man run away
from the liquor store right after the robbery, with a bottle tucked under his
arm. The witness watched the man hop into a red Pontiac G6 and drive
away.
Also talking with Pruitt on the night of the J & J robbery, the police
learned that shortly before the store was robbed, Pruitt had answered a
phone call—someone asking when the store would close that night. She
noticed that the call came from an Ohio number, which she supplied to
police using the caller-ID function on J & J’s phone.
The next morning, police plugged that phone number into Facebook’s
search function. The search returned a profile picture and account page
for “Marcus Zanders.” Posted on that page were photos and a video that
had been uploaded using the phone that had called J &J and that was
linked to the Facebook page. Those posts included photos of piled cash
and a bottle of Patrón (posted the day after the Whitey’s robbery), and a
video of piled cash and a 1.75-liter bottle of 1800 Silver tequila (posted the
morning after the J & J robbery).
Based in part on this information, Indiana police enlisted Ohio law
enforcement officers for help locating Marcus Zanders. They also
submitted an “Emergency Request Form” to Sprint, asking for GPS
location information and “Call Detail Records WITH Cell Sites (last 30
Days)” for the phone number that called J & J and that was linked to the
Marcus Zanders Facebook account. On the form, police provided a brief
explanation of the emergency as “multiple state armed robber w[ith]
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handgun displayed,” because they suspected the Dearborn County
robberies were connected to a robbery in Kentucky. The request was
transmitted to Sprint by 1:57 p.m. on February 7, about sixteen-and-a-half
hours after the J & J robbery.
About two minutes later, at 1:59 p.m., Ohio police spotted and began to
surveil a red Pontiac G6 near Zanders’s mother’s apartment in Cincinnati.
The vehicle was registered to Zanders’s mother, Michelle. Zanders got out
of the car at the apartment and went inside. He then returned to the car
and drove away. The officers soon stopped Zanders for a traffic violation
and arrested him for operating a vehicle without a valid license. When
arrested, Zanders had on his person a cell phone with the number that
called J & J and that was connected to the Marcus Zanders Facebook
account.
The same day, Sprint supplied the requested phone records, including
the historical CSLI; and police soon obtained warrants to search the two
residences where Zanders was staying: his mother’s and his brother’s.
Searching those residences, police found clothing and other items (cash,
Patrón, 1800 Silver tequila, a black handgun) corresponding to those
involved in the Whitey’s and J & J robberies.
The State charged Zanders with two counts of robbery with a deadly
weapon—one for the Whitey’s robbery, and one for the J & J robbery—
and two counts of unlawful possession of a firearm by a serious violent
felon. At a jury trial, the State sought to present the Sprint CSLI records,
along with a police officer’s testimony about those records. The court
admitted the evidence over Zanders’s objection.
The jury found Zanders guilty of all four counts. He appealed his
convictions, arguing in part that the State’s warrantless procurement of
his CSLI records violated his rights under the Fourth Amendment and
under Article 1, Section 11 of the Indiana Constitution, and that the
admission of the CSLI evidence was reversible error.
We rejected Zanders’s arguments and affirmed the convictions. Zanders
v. State, 73 N.E.3d 178 (Ind. 2017), vacated by Zanders v. Indiana, 138 S. Ct.
2702 (2018). On the Fourth Amendment issue, we reasoned that—in the
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absence of clarification from the Supreme Court of the United States, and
in line with the majority of federal circuits to have addressed the question
at the time 2—the third-party doctrine applied to CSLI. 3 Id. at 185. So State
access of historical CSLI was not a Fourth Amendment “search,” and the
State did not need a warrant to access the CSLI records. Id. On the state
constitutional issue, we found no violation because the police conduct was
reasonable under the totality of circumstances. Id. at 186.
Zanders petitioned the Supreme Court of the United States for a writ of
certiorari, based on our Fourth Amendment decision. While his petition
was pending, the Supreme Court decided Carpenter, which established
that police access to historical CSLI—certainly when seven days’ worth or
more is accessed, and possibly when fewer days’ worth is accessed—is a
search under the Fourth Amendment; the third-party doctrine does not
apply. Carpenter, 138 S. Ct. at 2217 & n.3, 2220. So unless the search falls
under an exception to the Fourth Amendment’s warrant requirement, the
State must obtain a warrant before accessing the CSLI. See id. at 2222–23.
Having decided Carpenter, the Supreme Court granted Zanders’s
petition for certiorari, vacated our decision based on the Fourth
Amendment, and remanded the case to us for reconsideration in light of
Carpenter. We ordered additional briefing and oral argument, and now
address the parties’ arguments.
2Compare United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc); United States v.
Carpenter, 819 F.3d 880 (6th Cir. 2016), rev’d, 585 U.S. ----, 138 S. Ct. 2206 (2018); United States v.
Davis, 785 F.3d 498 (11th Cir. 2015) (en banc); In re Application of U.S. for Historical Cell Site
Data, 724 F.3d 600 (5th Cir. 2013), with In re Application of U.S. for an Order Directing a Provider
of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304 (3d Cir. 2010). The Second
and Tenth Circuits joined the majority position after we issued our opinion. See United States
v. Thompson, 866 F.3d 1149 (10th Cir. 2017); United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017).
3The third-party doctrine recognizes that “a person has no legitimate expectation of privacy
in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743–
44 (1979). This means “the Government is typically free to obtain such information from the
recipient without triggering Fourth Amendment protections.” Carpenter, 138 S. Ct. at 2216.
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Zanders argues that in light of Carpenter, the CSLI records and
testimony should have been excluded, and this Court should vacate his
convictions and remand for a new trial. 4
The State argues that Carpenter does not require reversal for a new trial,
and that Zanders’s convictions should be affirmed. The State reasons that,
unlike in Carpenter, exigent circumstances here justified the warrantless
search of the CSLI; and, even if a warrant was required, the admission of
CSLI was harmless beyond a reasonable doubt.
Standard of Review
We review decisions to admit or exclude evidence for abuse of
discretion affecting the defendant’s substantial rights. See United States v.
Rainone, 816 F.3d 490, 497 (7th Cir. 2016); Williams v. State, 43 N.E.3d 578,
581 (Ind. 2015). Here, whether the trial court abused its discretion by
admitting the CSLI evidence depends on a legal determination, which we
review de novo. See United States v. Figueroa-Espana, 511 F.3d 696, 701 (7th
Cir. 2007); McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014). We will
conclude that a constitutional error resulted in prejudice unless we are
“able to declare a belief that it was harmless beyond a reasonable doubt.”
Chapman v. California, 386 U.S. 18, 24 (1967).
Discussion and Decision
We first address whether the State’s access to CSLI for Zanders’s phone
was a Fourth Amendment search under Carpenter. Deciding that it was,
4 He also urges us to reconsider his state constitutional claim. We decline to revisit our state
constitutional holding, as our analysis under Article 1, Section 11 of the Indiana Constitution
does not depend on the Fourth Amendment, see Zanders, 73 N.E.3d at 185–86; Wright v. State,
108 N.E.3d 307, 315 (Ind. 2018); Litchfield v. State, 824 N.E.2d 356, 359–60 (Ind. 2005), and our
finding of harmlessness beyond a reasonable doubt would preclude relief on the state
constitutional claim even if we were to find a violation, see Torres v. State, 673 N.E.2d 472, 474–
75 (Ind. 1996) (reviewing state constitutional error for harmlessness beyond a reasonable
doubt).
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we next apply harmless-error analysis to the admission of the CSLI
evidence. We conclude that even if admitting the CSLI evidence was error,
it was harmless beyond a reasonable doubt. So we affirm Zanders’s
convictions.
I. The State’s Access to Zanders’s CSLI Was a Fourth
Amendment Search.
On appeal, we “appreciate[d] both sides of th[e] federal split” over
whether government access to historical CSLI is a Fourth Amendment
search. Zanders, 73 N.E.3d at 185. And in the absence of Supreme Court
precedent resolving the split, we “align[ed] with the majority position,”
affirming the trial court’s ruling that individuals do not have a reasonable
expectation of privacy in their CSLI, given the application of the third-
party doctrine. Id.
But in resolving the split, the Supreme Court in Carpenter instructed
otherwise. Although Carpenter specifically addressed the government’s
receipt of over 125 days of CSLI, the Court held that an individual has a
reasonable expectation of privacy in seven days or more of CSLI, which
provides a comprehensive chronicle of the user’s past movements. 138 S.
Ct. at 2211, 2217 & n.3. The 30 days of Zanders’s historical CSLI at issue
here was therefore a Fourth Amendment search under Carpenter.
Concluding that a “search” under the Fourth Amendment occurred is
just the first step of our analysis, for three reasons. First, the Fourth
Amendment does not always require a warrant before conducting a
search—exigent circumstances, for example, may supply an exception to
the warrant requirement. See id. at 2221–23. Second, even if the search was
unconstitutional, the exclusionary rule may not apply, making the fruits of
the search admissible. See Davis v. United States, 564 U.S. 229, 236–37
(2011); Hudson v. Michigan, 547 U.S. 586, 591 (2006) (“Suppression of
evidence . . . has always been our last resort, not our first impulse.”). And,
finally, if evidence should have been excluded but its admission was
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harmless beyond a reasonable doubt, the error does not require reversal.
See Chapman, 386 U.S. at 24. 5
On these points, the State argues that exigent circumstances made the
warrantless search reasonable—and thus constitutional under the Fourth
Amendment—so there was no error in admitting the CSLI evidence. The
State continues that even if the evidence should have been excluded,
admitting it was harmless beyond a reasonable doubt.
Zanders responds that exigent circumstances did not justify the
warrantless search of his CSLI; the fruits of that search should have been
excluded; and their admission was not harmless error. 6
We need not, and do not, decide whether exigent circumstances
justified the warrantless search. This is because, in view of the whole
record, the CSLI evidence was harmless beyond a reasonable doubt.
5At oral argument, Zanders’s counsel repeatedly emphasized that the Supreme Court of the
United States considered this case on the merits and that the Court’s order granting, vacating,
and remanding the case both includes “an implication maybe that the United States Supreme
Court didn’t believe exigent circumstances existed,” and ultimately “tells us that clearly
Marcus Zanders’s Fourth Amendment rights were violated, as in Carpenter.” We agree that
the Supreme Court of the United States granted, vacated, and remanded this case on
consideration of the parties’ submissions and that Carpenter abrogated the third-party-
doctrine analysis on which our prior Fourth Amendment decision relied. But we do not read
the Court’s order as having decided the merits of these issues.
6 He also argues that the State waived its harmless-error argument. For two reasons, we
review the alleged constitutional error for harmlessness regardless of waiver. First, prejudice
is generally part of our review standard, Rainone, 816 F.3d at 497; Williams, 43 N.E.3d at 581, so
to the extent the alleged constitutional error may afford Zanders a new trial, we must
determine whether he is entitled to that relief. Cf. Ind. Trial Rule 61 (“The court at every stage
of the proceeding must disregard any error or defect in the proceeding which does not affect
the substantial rights of the parties.”). Second, errors in admitting evidence from an
unconstitutional search are subject to harmless-error analysis because we have an interest in
securing justice without unnecessarily expending judicial resources. Arizona v. Fulminante, 499
U.S. 279, 306–08 (1991) (citing Chambers v. Maroney, 399 U.S. 42, 52–53 (1970)); see Delaware v.
Van Arsdall, 475 U.S. 673, 681 (1986); Chapman, 386 U.S. at 23–24. For the same reasons
harmless-error analysis applies to constitutional errors generally, we review the alleged
constitutional error for harmlessness even if the State’s harmlessness argument is waived. See
generally Chapman, 386 U.S. 18; Durden v. State, 99 N.E.3d 645, 652 & n.7 (Ind. 2018).
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II. The Admission of CSLI Evidence Was Harmless
Beyond a Reasonable Doubt.
Not all constitutional errors are subject to harmless-error standards. See
Chapman, 386 U.S. at 23 & n.8 (providing examples); Arizona v. Fulminante,
499 U.S. 279, 309–10 (1991) (same).
But most are, including the admission of evidence obtained in violation
of the Fourth Amendment. Fulminante, 499 U.S. at 306–07 (citing Chambers
v. Maroney, 399 U.S. 42, 52–53 (1970)); United States v. Stefonek, 179 F.3d
1030, 1036 (7th Cir. 1999). For these errors, “an otherwise valid conviction
should not be set aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond a
reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). Put
another way, the question is, “Is it clear beyond a reasonable doubt
that . . . [the] jury would have found the defendant guilty absent the
error?” Neder v. United States, 527 U.S. 1, 18 (1999).
The State bears the burden to make this showing. Weaver v.
Massachusetts, 137 S. Ct. 1899, 1907 (2017); Chapman, 386 U.S. at 24. And it
is a heavy burden indeed. But overcoming this burden does not require
showing that the jury was “totally unaware of that feature of the trial later
held to have been erroneous.” Yates v. Evatt, 500 U.S. 391, 403 (1991),
disapproved of on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4
(1991); see Neder, 527 U.S. at 18 (“To set a barrier so high that it could never
be surmounted would justify the very criticism that spawned the
harmless-error doctrine in the first place . . . .”). Rather, the reviewing
court must “find that error unimportant in relation to everything else the
jury considered on the issue in question, as revealed in the record.” Yates,
500 U.S. at 403.
The harmless-error doctrine thus serves two key, interrelated functions:
it “recognizes the principle that the central purpose of a criminal trial is to
decide the factual question of the defendant’s guilt or innocence,” Van
Arsdall, 475 U.S. at 681 (citing United States v. Nobles, 422 U.S. 225, 230
(1975)), and it “promotes public respect for the criminal process by
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focusing on the underlying fairness of the trial rather than on the virtually
inevitable presence of immaterial error,” id.
For these reasons, harmless-error analysis involves quantitatively and
qualitatively assessing the error in the context of other evidence
presented. See id. at 684; Fulminante, 499 U.S. at 307–08. This analysis
requires us to first identify the allegedly improper evidence, then evaluate
its significance in view of all the other evidence that was properly
presented. See, e.g., United States v. Hasting, 461 U.S. 499, 510–12 (1983);
United States v. Watts, 453 F. App’x 309, 312–14 (4th Cir. 2011); United
States v. Tenerelli, 614 F.3d 764, 769–70 (8th Cir. 2010).
A. If the State Obtained the CSLI Illegally, Only the CSLI
Records and Corresponding Testimony Would Have
Been Excluded.
The parties agree that if the State violated Zanders’s constitutional
rights by obtaining the CSLI without a warrant, the CSLI records from
Sprint, and corresponding testimony about them, 7 should have been
excluded. But they disagree about whether the evidence police obtained
by executing the search warrants for Zanders’s residences should also
have been excluded.
Zanders argues that the search warrants relied on the CSLI search, so
evidence obtained by their execution is inadmissible as fruit of the
poisonous tree. The State disagrees, as do we.
Even if the State obtained the CSLI illegally and the search warrants
were accordingly defective, the good-faith exception to the exclusionary
rule applies to the officers’ objectively reasonable reliance on those
warrants. This good-faith exception stems from the exclusionary rule’s
aim to deter unlawful police conduct. See United States v. Leon, 468 U.S.
897, 920–21 (1984). When an officer acting with objective good faith has
7This includes the demonstrative exhibits Officer Carl Pieczonka used to explain the CSLI
records.
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obtained a search warrant from a judge or magistrate, “there is literally
nothing more the policeman can do in seeking to comply with the law”
other than to act within the warrant’s scope. Id. at 921 (quoting Stone v.
Powell, 428 U.S. 465, 498 (1976) (Burger, C.J., concurring)). So “[p]enalizing
the officer for the magistrate’s error . . . cannot logically contribute to the
deterrence of Fourth Amendment violations.” Id. Accordingly, evidence
obtained in good-faith, reasonable reliance on a warrant is admissible.
But the good-faith exception does not apply if the officer had no
reasonable grounds for believing that the warrant was properly issued. Id.
at 922–23. This happens, for example, when the officer–affiant has misled
the magistrate who issued the warrant, using information in an affidavit
that the affiant knew was false; or when the officer has relied “on a
warrant based on an affidavit ‘so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.’” Id. at 923
(quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J.,
concurring in part)); see also id. (providing other situations in which the
good-faith exception does not apply).
Here, the good-faith exception applied: the officers had reasonable
grounds for believing that the warrants were properly issued. When the
officers applied for and obtained the warrants to search the residences,
they did not have the benefit of Carpenter or other precedent establishing
that the Fourth Amendment generally requires a warrant before police
may access CSLI. In fact, the weight of authority at the time suggested the
opposite—that no warrant was required. Although officers must have
reasonable knowledge of what the law requires and prohibits, we do not
expect them “to engage in extensive legal research and analysis before
obtaining search warrants,” much less anticipate redirection of the weight
of authority on an issue. State v. Spillers, 847 N.E.2d 949, 958 (Ind. 2006); see
also Leon, 468 U.S. at 922 n.23 (identifying the question as “whether a
reasonably well trained officer would have known that the search was
illegal despite the magistrate’s authorization”); United States v. Koerth, 312
F.3d 862, 869 (7th Cir. 2002) (“Police officers in effecting searches are
charged with a knowledge of well-established legal principles as well as
an ability to apply the facts of a particular situation to these principles.”
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(quoting United States v. Brown, 832 F.2d 991, 995 (7th Cir. 1987))). So the
police could reasonably presume the warrants were valid.
This is true even if the warrants—without the CSLI information in the
affidavits—were unsupported by probable cause. In that case, each
warrant was still not so facially deficient that executing officers could not
reasonably presume it to be valid. See Leon, 468 U.S. at 923. The affidavits
supplied enough probative information—about the stolen property (cash,
Patrón, 1800 Silver tequila); the telephone number that called J & J and
that was tied to Zanders’s Facebook page; the Facebook postings of
money, Patrón, and 1800 Silver tequila on Zanders’s account just hours
after the robberies; the witnesses’ descriptions of the robber and Pontiac
G6; and more—so that each affidavit was not “so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable,” id. (quoting Brown, 422 U.S. at 611). And when the police
executed each search, they did not exceed the scope of either warrant.
Since the good-faith exception applies to the officers’ searches of the
two residences, the evidence obtained from those searches was properly
admitted, irrespective of the CSLI language in the affidavits. For the
harmless-error analysis, then, that evidence is part of “everything else the
jury considered on the issue in question,” Yates, 500 U.S. at 403.
Finally, also included in the pool of properly admitted evidence are the
phone records from Sprint indicating numbers dialed from Zanders’s
phone, without the CSLI. See Smith v. Maryland, 442 U.S. 735, 743–44
(1979). Carpenter did not revoke the third-party doctrine’s application to
those kinds of phone records that are admissible under Smith. Carpenter,
138 S. Ct. at 2220.
Having identified which evidence should have been excluded if the
warrantless search of Zanders’s CSLI violated his Fourth Amendment
rights, we now assess whether that evidence’s admission was harmless.
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B. In View of the Whole Record, It Is Clear Beyond a
Reasonable Doubt that the Jury Would Have Returned
the Same Verdict Absent the Error.
Whether an error in admitting evidence was harmless in a particular
case depends on a host of factors. They include the presence or absence of
other, corroborating evidence on material points; whether the
impermissibly admitted evidence was cumulative; the overall strength of
the prosecution’s case; the importance of the impermissible evidence in
the prosecution’s case; and the extent of cross-examination or questioning
on the impermissibly admitted evidence. See, e.g., United States v. Job, 871
F.3d 852, 865–67 (9th Cir. 2017); United States v. Russian, 848 F.3d 1239,
1248–50 (10th Cir. 2017); United States v. Bailey, 743 F.3d 322, 342–45 (2d
Cir. 2014); Rabadi v. State, 541 N.E.2d 271, 276–77 (Ind. 1989); cf. Van
Arsdall, 475 U.S. at 684.
Considering each of these factors in view of the whole record, we can
confidently declare, beyond a reasonable doubt, that the CSLI evidence
did not contribute to the jury’s guilty verdicts.
1. The State Presented Other Corroborating Evidence on
the Material Point that Zanders Went Near Each
Robbery.
For the jury to find Zanders guilty, the State needed to prove that
Zanders, while armed with a deadly weapon, knowingly or intentionally
took property from another person through force or threat of force; or by
putting any person in fear. Ind. Code § 35-42-5-1 (2014). It was undisputed
that all the elements of armed robbery were met by the masked man at
each liquor store. The security-camera videos and the victims’ testimony
irrefutably established that the man took property from each store’s clerks
by pointing a handgun at the employees, threatening force or placing the
employees in fear. All that remained was to prove that Zanders was the
man behind the masks.
The CSLI evidence went only to this element. And it was probative
because it indicated that Zanders’s phone moved from cell-service areas in
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Cincinnati to cell-service areas covering each Indiana liquor store around
the time it was robbed.
But the State amassed a pile of other—and weightier—evidence on this
point. While the CSLI could demonstrate only that Zanders went near the
robberies, the remaining evidence strongly tended to place Zanders at the
liquor stores as the robber who pointed the gun at the employees and took
the cash, alcohol, cigarettes, and phones. See Black’s Law Dictionary 674
(10th ed. 2014) (defining “corroborating evidence” as “[e]vidence that
differs from but strengthens or confirms what other evidence shows (esp.
that which needs support)”).
We’ll recount this multitude of corroborating, non-CSLI evidence by
addressing each robbery in turn. But before we do, it is important to
recognize that the evidence of Zanders’s guilt for each robbery is also
evidence of his guilt for the other. This is because the State presented
strong evidence that the robber of Whitey’s was also the robber of J & J.
First, the robbed liquor stores were near each other, and the robberies
occurred within a short time frame. Specifically, both liquor stores are in
the same county, which borders the Indiana–Ohio state line near
Cincinnati, where Zanders was living. The stores sit only about 10–15
miles apart, along US-50; the local jury would have been familiar with the
area. And the robberies were committed less than one week apart, on
consecutive weekends, at the same time of night (between 9:15 and 9:30
p.m.).
Second, the Whitey’s robber and J & J robber shared characteristics. The
size and build of the Whitey’s robber were similar to, if not
indistinguishable from, the size and build of the J & J robber. And each
robber was alone, wearing a cloth mask, a hooded sweatshirt, black
gloves, and carrying only a black handgun.
Third, the robberies followed the same pattern: Zanders’s cell phone
number called the liquor store in the evening, before the robbery. Then,
the robber entered the store and immediately held his right arm straight
out, pointing the gun at the store clerk(s). He demanded cash from the
register(s), told the clerk(s) to give him the available phones (which he
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took or ripped apart), and removed tequila from the store. He instructed
the clerk(s) to lie on the floor and placed his gun in or near his pants or his
sweatshirt pocket before he left.
Finally, other evidence strongly linked the two robberies as being
committed by the same person. The 40-caliber handgun found at one of
the residences where Zanders was staying had a size, shape, and color
that made it indistinguishable from the handgun depicted in both stores’
security videos. For each robbery, there was evidence that a red Pontiac
G6—the kind of car Zanders was driving upon arrest—was involved.
When police searched the two residences where Zanders was staying, the
clothing and other items corresponding to each robbery were
commingled. And most compelling of all, the pictures and video
showcasing items corresponding to the stolen property were posted on
the same Facebook page—Zanders’s—the day after each robbery, by him,
the account holder. The photo posts were mobile uploads, tied to the
phone number—Zanders’s—that had called each liquor store shortly
before it was robbed.
Thus, given the similar characteristics between the two robberies, the
non-CSLI evidence that Zanders was the masked man in one robbery is
also evidence that he was the masked man in the other. And while the
CSLI could, at best, show that Zanders went near the robberies, the other
evidence made a stronger showing: that Zanders was at the robberies, as
the actual robber. We now turn to each individual robbery and the
corresponding non-CSLI evidence.
a. Whitey’s Robbery
For the Whitey’s robbery, the admissible evidence included the
following: security-camera videos of the robbery, taken from inside
Whitey’s; testimony from the victimized clerk, Kenny Butler; clothing and
other items, found where Zanders was staying, corresponding to clothing
and items involved in the robbery; call records for Zanders’s phone,
revealing someone using his phone had called Whitey’s the evening of the
robbery, before it was robbed; screenshots of Zanders’s Facebook page,
which was linked to his phone number; photos uploaded from Zanders’s
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phone to his Facebook page; testimony from Tasha West, an eyewitness at
the Gold Star Chili drive-through by Whitey’s; security-camera videos
from a store near Whitey’s; testimony from investigating Officers Barry
Bridges, Carl Pieczonka, Jeremy Shepard, Joshua Fey, Gregory Morgan,
Paul Nabor, John Enderele, Dale Mikes, Wallace Lewis, and Jason
Hubbard; photos of the red Pontiac G6 that Zanders was driving upon his
arrest; and the video of Zanders’s interview with Officers Bridges and
Shepard.
Specifically, in the Whitey’s security-camera videos, the jury could see
the robber’s size, build, clothing, and actions. He wore a dark hooded
sweatshirt with a small, white, circular- or crescent-shaped emblem on the
left chest; dark jeans; light brown work boots; black gloves, each with a
design on the backside; and a white cloth mask that puckered out on one
side of his face.
He entered through the front door; pointed a black handgun at Kenny
Butler; and watched Butler place cash from the register, cigarettes, and
Patrón tequila (two pint-sized bottles in green boxes) into a bag. The
videos also show the robber placing his hands and gun on the service
counter, right in front of Butler, and ripping apart the store’s phone. They
next display the robber moving his gun toward his waist or sweatshirt
pocket as he exited the same door he entered. One video shows him
walking to the left of the screen once he was outside, with his hood and
face still covered.
Kenny Butler’s description was consistent with the videos, and he
supplemented that the design on the backside of the robber’s gloves was
the stylized “B” logo of the Cincinnati Bengals. He also said the robber’s
voice was deep and sounded to him like a black male’s.
Officer Lewis, who investigated the robbery, testified that he used stills
of the Whitey’s surveillance video, along with reference points in the
store, to estimate that the robber stood between 5’10” and 6’, give or take
an inch. Zanders’s driving records list him in that range, at 6’1”, and
Officer Lewis testified that Zanders’s height at booking was a little over
5’11”.
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Eyewitness Tasha West also testified. On the night Whitey’s was
robbed, she had gone through the drive-through at Gold Star Chili, which
was two doors down from Whitey’s, at the end of the same strip mall. She
testified that when she was in the drive-through, she saw “a black
gentleman walk across the front of our car. . . . And the reason why I
looked at him was because he was acting weird with his pants,” like
something was in them. She said he was wearing dark jeans and a dark
hooded sweatshirt, and his hair was “right by his scalp”—not long—kind
of like small cornrows or dreadlocks. He didn’t have anything covering
his face, so she could see it—the side of his face—as “he walked right in
front of [her]” in a direction away from the liquor store.
West also testified that the following week, she saw a media story with
video footage of a man walking. Because of the camera’s angle, West saw
him “walk directly in front of the camera and it was just like sitting in my
car watching him walk across the street, or across, in front of my car.” His
hair might have been a little different, but because of his unique walk and
the video’s view of his face and body, West had no doubt that he was the
person she saw walk right in front of her in the drive-through. The man in
the video was identified as Marcus Zanders.
The State also presented evidence that Zanders was at a United Dairy
Farmers store near Whitey’s shortly before the robbery. The robbery
occurred at about 9:17 p.m. A United Dairy Farmers store employee had
told Officer Shepard that around 9:00 p.m., a black male entered the store
and asked for directions to Whitey’s. Video footage from an outdoor
security camera shows a red car—which Officer Shepard believed was a
Pontiac G6—driving in the store’s parking area at about 8:59 p.m. Another
video, from inside the store, reveals that shortly after 9:00 p.m., a man
resembling Zanders—in size, build, hair, complexion, and facial
features—entered and then left a few minutes later.
Evidence from Facebook and from Zanders’s residences provided
stronger evidence. Officer Pieczonka supplied screenshots of Marcus
Zanders’s Facebook page. Those screenshots revealed that the page was
connected to Zanders’s phone number, which call records indicated had
called Whitey’s before the robbery that evening. Again, these are records
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of calls made and received—not including CSLI. One of the screenshots
displayed a mobile-upload photo, posted the day after the Whitey’s
robbery, of a pint bottle of Patrón like the ones stolen from Whitey’s, and
captioned, “You want some.”
When police searched the two residences where Zanders was staying,
they found—alongside a casino rewards card embossed with “Marcus
Zanders”—the following items corresponding to clothing and other items
involved in the robbery: a black glove with an orange and black Bengals
“B” logo on the backside; a white mesh mask that was irregularly shaped,
bunching in some places; a Newport cigarette box with an Indiana tax
stamp on it; a dark blue hooded sweatshirt with a small, white, crescent-
shaped “Champion” logo on the left chest; light brown work boots; cash;
two pint bottles of Patrón, along with at least one green packaging box;
and a 40-caliber black handgun, which Officer Shepard testified was the
same as the one displayed in the security videos.
Finally, Zanders told police that he smokes Newport cigarettes and that
one of the drinks he prefers is Patrón—and Newport cigarettes, along
with two bottles of Patrón and cash, were stolen from Whitey’s.
This pool of evidence corroborates the CSLI evidence that Zanders was
near the robbery. Ultimately, though, the non-CSLI evidence is even
stronger, showing that Zanders had been inside Whitey’s and was the
person caught on tape robbing the store. This point, again, was further
corroborated by the non-CSLI evidence that Zanders was guilty of the J &
J robbery—which is examined in detail below.
b. J & J Robbery
Compared to its case for the Whitey’s robbery, the State presented even
more and stronger non-CSLI evidence that Zanders was the masked man
who robbed J & J.
That non-CSLI evidence included the following: several security-
camera videos of the robbery, taken from inside J & J; videos of the J & J
parking lot area; testimony from the two victimized clerks, Danielle Pruitt
and Lisa Huddleston; clothing and other items, found where Zanders was
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staying, corresponding to clothing and items involved in the robbery; call
records for Zanders’s phone, revealing the phone had been used to call J &
J shortly before the robbery; screenshots of Zanders’s Facebook page,
which was linked to his phone number; photos uploaded from Zanders’s
phone to his Facebook page; a nearly identical photo pulled from
Zanders’s phone; video uploaded by Zanders to his Facebook page the
morning after the robbery; testimony from eyewitness Kelly Curry, who
lived at the Maple Glen Apartments across from J & J; phones stolen from
J & J found by the Maple Glen Apartments; testimony from J & J owner
Renee Wilson, about her 1800 Silver tequila inventory and pricing
practices; testimony from John Montgomery, the general manager of
Proximo, a distributor of 1800 Silver tequila; testimony from investigating
Officers Bridges, Pieczonka, Shepard, Fey, Hubbard, Morgan, Nabor,
Enderele, Ed Lewis, and Mikes; photos of the red Pontiac G6 that Zanders
was driving; and the video of Zanders’s interview with Officers Bridges
and Shepard.
The video cameras inside J & J captured the robbery as it unfolded.
Upon entering, the robber pointed a black handgun at the two clerks. He
wore gray sweatpants; a gray, hooded, zip-up sweatshirt with the hood
up; white-and-black athletic shoes; black gloves; and a black mask. As the
clerks put cash from the registers into a bag, the robber grabbed one
clerk’s cell phone and the store’s cordless phones from the counter. The
clerks lay on the floor, and the robber moved his gun to his waistband as
he walked to some shelves. He departed, carrying a blue-tinted object in
his arm.
Pruitt and Huddleston provided more details in their testimony. Pruitt
said the robber’s black mask “looked like a toboggan.” Huddleston saw
that on his sweat pants was a small navy blue Polo horse symbol, which
she noticed while she was lying on the floor. The clerks explained that
before exiting, the robber had walked to the liquor section, where tequila
was shelved. And after he left, an 1800 Silver bottle of tequila—which has
a large blue label—was missing from those shelves. The clerks could tell
because they had just “faced” the shelves—a routine of bringing bottles to
the front of the shelves so that no empty spaces face the customers—and
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there was an empty spot where an 1800 Silver bottle had been before the
robbery.
The security-camera videos outside J & J provided additional evidence,
giving the jury a view of the robber before and after the robbery. Before
the robbery, at about 9:26 p.m., the masked, hooded figure in gray sweats
walked across the parking lot toward J & J, from the direction of the
Maple Glen apartments. He entered J & J, then a few minutes later exited
the same door with something in his arm. He next walked, then jogged,
away from J & J and toward the Maple Glen apartments.
Kelly Curry’s testimony picked up the narrative from there. At about
9:30 p.m., she was smoking a cigarette outside, on her third-floor balcony
at the Maple Glen apartments, when she saw a man dressed in an all-gray
sweat suit, hood pulled up, run around her building. He came close to the
building, running on the grass area, and he was carrying what looked like
a bottle tucked under his arm. He ran directly to a red Pontiac G6, hopped
in, and took off. He was alone. About five minutes later, Curry saw police
cruisers arrive at J & J, and she flickered her balcony lights on and off to
get the officers’ attention and tell them what she had seen. Police found
the stolen phones in a grassy area next to the Maple Glen apartments.
One of the clerks testified that before the robbery, she had received a
call on the J & J phone from an Ohio number—someone asking what time
the store closed that night. She told Officer Bridges about that call when
he responded to the robbery that night, and she gave him the phone
number using the caller-ID function of J & J’s phone.
The next morning, Officer Pieczonka put that number into Facebook’s
search function. He discovered that the number was linked to the
Facebook account of “Marcus Zanders.”
Screenshots of Officer Pieczonka’s view displayed the Facebook search
result, parts of Marcus Zanders’s profile page, and some of the account’s
mobile-upload posts. The profile page stated that Marcus Zanders lives in
Cincinnati, Ohio, and is self-employed. The mobile-upload posts indicated
they had been uploaded around 5:00 a.m. and 11:30 a.m. that morning—
the morning after the robbery—from a location near the address where
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Zanders was staying. The photos depicted cash—in $1, $5, $10, $20, and
$100 bills—piled on what looks like the floor and a bed.
One photo, captioned “Getting money while being,” exhibits cash
sitting on what looks like red plastic or cloth on a bed. When Officer
Mikes searched Zanders’s phone, he found a picture nearly identical to
that photo. The phone’s time stamp indicated the photo was taken using
the phone’s camera, on February 7 at 4:15 a.m. the morning after the J & J
robbery.
A video was also posted to the Facebook page by Marcus Zanders—the
account holder—the morning after the robbery. It begins with a close-up
view of a large 1800 Silver tequila bottle (displaying its prominent blue
label) with a small white rectangle centered near the top, sitting on a
counter. It then pans to cash on the counter, then into another room, to a
mound of cash on a bed, along with what looks like red plastic or cloth.
Zanders acknowledged the Facebook posts in his interview, and
affirmed that he had his phone on him the whole evening, night, and early
morning of February 6–7. He also indicated that during the couple of days
before February 6, the most money he had was $40 to $50. But, he said, he
had gone to a casino from 5:30 a.m. to 7:30 a.m. on February 7, and while
he was there, he had won $575. He said the Facebook posts that the
officers had seen were of his winnings and his mother’s rent money,
which was $255. The interview included this interchange:
Officer Shepard: Marcus, you’ve got--you’ve got a Facebook
page, right?
Zanders: [nods]
Officer Shepard: Alright. Last night, you’re posting on your
account. You got a large sum of money on your bed.
Zanders: Yeah, from uh…the casino.
Officer Shepard: That was a lot more than $575.
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Zanders: That…ay what you seen hella singles, and my
momma’s rent money.
Indeed, more than $500-worth of bills are depicted in the Facebook
photos and video, including at least four $100 bills. But at least one post
depicting those hundreds of dollars—the post that was nearly identical to
the photo taken using Zanders’s phone camera at 4:15 a.m.—had been
posted around 5:00 a.m., before the time Zanders said he’d left for the
casino, discrediting his account of how and when he acquired the money.
Further, when police searched Zanders’s mother’s and brother’s
apartments, they found a host of inculpatory items. In addition to the
items corresponding to the Whitey’s robbery, they found the casino
rewards card embossed with “Marcus Zanders”; cash; a gray, hooded,
zip-up sweatshirt; gray Polo sweatpants with a small horse symbol on
them; and the 40-caliber handgun. A still photo from the J & J security
video gives a clear view of the black handgun that the robber pointed at
the clerks—the two are indistinguishable.
The police also found, on one of the kitchen counters, a 1.75-liter, blue-
labeled 1800 Silver bottle with a small white price sticker centered near the
top—just as the Facebook video depicted. Officer Pieczonka testified that
he recognized the video was taken in that apartment, where Zanders said
he was living. And Renee Wilson—owner of J & J Liquor—testified that
she instructs her employees to place the price stickers straight and
centered, like the one on the bottle police found in the apartment. She also
priced J & J’s 1.75-liter 1800 Silver tequila at $37.49, and noted that J & J’s
price-marking machine produces a faded “3.” The price sticker on the
bottle police found was $37.49, with a faded “3” typical of Wilson’s
pricing machine. Wilson demonstrated this for the jury, using one of J &
J’s five remaining bottles, which were depicted in photos of the crime
scene.
Business records corroborated Wilson’s testimony that she had ordered
exactly six 1.75-liter 1800 Silver tequila bottles that year. None of those six
bottles had been sold as of February 6, 2015, the day of the robbery. And
all of them were on the shelf until the robbery; then one was missing. She
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also explained that Southern Wine and Spirits, in Greenwood, Indiana,
was Wilson’s only source for that product.
Another set of business records and testimony confirmed that the bottle
police found where Zanders was staying had gone to Southern Wine and
Spirits before Wilson received it. The bottle was imprinted with a number.
John Montgomery—General Manager of Proximo Distillers Indiana, a
distributor owned by Jose Cuervo—explained that the number is a
manufacturing batch lot code. The code, along with purchase-order
numbers, indicated that after the tequila had been produced and bottled
in Mexico by the sole manufacturer–bottler, Jose Cuervo, it was received
and distributed by Proximo to Southern Wine and Spirits in Greenwood,
Indiana.
Taken together, the non-CSLI evidence was vast, showing that Zanders
not only went near the J & J robbery, but was the robber inside the store.
And, as already explained above, this was further corroborated by the
non-CSLI evidence that Zanders was guilty of the Whitey’s robbery. We
now turn to the cumulative nature of the CSLI evidence.
2. The CSLI Evidence Was Cumulative.
The non-CSLI evidence corroborating Zanders’s proximity to the
robberies also made the CSLI evidence cumulative. Cumulative evidence
is evidence that “supports a fact established by the existing evidence,”
especially existing evidence that “does not need further support.” Black’s
Law Dictionary 675 (10th ed. 2014); see Turner v. United States, 137 S. Ct.
1885, 1894–95 (2017); Davis v. State, 456 N.E.2d 405, 409 (Ind. 1983).
Again, the most the CSLI evidence could do was place Zanders near the
liquor stores around the times they were robbed. At its strongest, then,
that evidence was cumulative of other evidence establishing proximity to
the robberies. To be sure, the sea of strong non-CSLI evidence that
Zanders went inside and robbed Whitey’s and J & J necessarily
submerged the significantly weaker CSLI evidence that Zanders was near
the crimes. Cf. Humphrey v. State, 73 N.E.3d 677, 686–87 (Ind. 2017)
(concluding that improper admission of statement as evidence of guilt
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was not cumulative because the “statement was the only evidence
identifying [the defendant] as the shooter”).
Having addressed the cumulative nature of the CSLI evidence, we turn
to the overall strength of the State’s case.
3. The State’s Case Was Very Strong Without the CSLI
Evidence.
Largely because the State’s non-CSLI evidence was so voluminous and
weighty, the State’s case as a whole was very strong. True, not all the
evidence was airtight. Zanders points to three discrepancies in the
evidence, arguing that they “would have gravely concerned a jury asked
to convict without the benefit of the [CSLI] evidence.” None of these
purported weaknesses, however, compromised the overall integrity or
forcefulness of the State’s case.
One of them is not a discrepancy at all; it is a misstatement of the
record. Citing page 423 of the transcript, Zanders argues that the police
estimated the height of the Whitey’s robber between 5’6” and 5’10”, and
that Zanders’s driving records list him outside that estimated range, at
6’1”. But Zanders has misstated the transcript, which in fact provides that
the police estimated the robber’s height between 5’10” and 6’, give or take
an inch. Since Zanders’s driving records list him at 6’1”, and his book-in
photo shows him at just over 5’11”, both of these measures are within the
range for the robber’s estimated height. So the height estimation actually
strengthens—not weakens—the State’s case.
Zanders’s second asserted discrepancy splits hairs to no avail. He
points out that eyewitness Tasha West used the words “dreads or small
corn rolls [sic]” when describing the hair of the man she saw cross in front
of her car; and that Zanders’s hair—at least in his BMV photo and at
trial—lacked dreadlocks or cornrows, even if it was short.
Regardless of whether Zanders had the same hair style at the time of
the Whitey’s robbery, when his BMV photo was taken, and during trial,
West explained that she couldn’t be so specific to say that the man she saw
indeed had dreadlocks or cornrows. She knew that his hair was short, not
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long, and it “kind of looked like” small cornrows “right there at his scalp,”
but she didn’t “even know what they’re…like what it’s called.”
West’s difficulty in naming the hair style did not shake her conviction
about the man being the same person she saw in the news-story video.
She testified that she had no doubt the man she saw cross in front of her
vehicle was the person she saw in the video, who was identified as
Marcus Zanders. Her sure recognition was not based on his hair; it was
based on her view of the man’s face and his distinct walk. So West’s
testimony provided significant weight to the State’s case, notwithstanding
her trouble describing hair.
The third purported discrepancy attempts to poke a hole in the
evidence from the United Dairy Farmers store. Zanders says the red
Pontiac in the store’s video had a different number of wheel spokes, or
“holes on the wheel cover,” than Michelle Zanders’s car had. At trial, this
was one of a few points of contention concerning the evidence from the
store. The others were that Zanders’s mother and brother claimed the man
in the surveillance video was not Zanders; and that the man’s clothing in
the video didn’t match those displayed in the Whitey’s robbery, though
his white-and-black athletic shoes looked like those worn in the J & J
robbery. The evidence from the United Dairy Farmers store was certainly
not the strongest piece of the State’s case. But even if that evidence
provided minimal support to the State’s case, it didn’t weaken the other,
more compelling evidence of Zanders’s guilt, which was plentiful and
forceful.
All in all, the State presented heaps of strong, non-CSLI evidence that
Zanders was the person who committed both robberies. That evidence
amounted to a compelling case, even without the CSLI evidence. This
logically brings us to the next point—that the importance of the CSLI
evidence was diminished by the non-CSLI evidence’s strength.
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4. In Light of the Other Evidence Presented, the CSLI
Evidence Was Unimportant.
In light of the vast, strong non-CSLI evidence of Zanders’s guilt, the
CSLI evidence was unimportant to the State’s case. If the jurors found the
CSLI evidence reliable and comprehensible, then they may have
understood it as indicating that Zanders was in the robberies’ vicinity. But
the other, convincing evidence that Zanders was the man committing the
robberies inside the stores—not just nearby—drowned the import of the
CSLI evidence.
The CSLI evidence did not pervade the trial. Rather, it was contained to
a small portion of the State’s presentation of its case—virtually all between
mid-morning and lunch on the fourth (and final) day of trial. This limited
scope is partly because of the trial court’s decision to sustain Zanders’s
objections to the admission of testimony concerning the CSLI records until
after the hearing on whether the CSLI records themselves would be
admitted.
And even on the last day of trial, the CSLI evidence was largely
confined to a single witness’s testimony. The State called five witnesses on
that day. The first three did not testify about CSLI at all. It’s true that the
third explained that in executing a warrant to search Zanders’s phone, his
report included the M.E.I.D., which “is specific to each phone and it tells
the cell tower which phone it is to direct the call to.” But he did not do any
cell phone tower analysis, which is what generates CSLI.
After the mid-morning break, the fourth witness—Officer Pieczonka—
testified about the CSLI records. The CSLI records were a large volume of
spreadsheets, which Officer Pieczonka distilled into more comprehensible
terms, and a large portion of his testimony was devoted to explaining how
he made sense of the numerical data. His testimony and the records
ultimately pointed to a conclusion that the phone had moved into cell-
service regions covering the liquor stores’ locations around the times they
were robbed.
After lunch, the fifth witness said he obtained the records from Sprint,
and he referred to the records’ indication that Zanders was near the
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robberies. But his testimony mostly focused on calls made by the phone—
to friends and family of Zanders—to establish that the phone was
Zanders’s. While it’s true that the CSLI evidence could not reveal
Zanders’s movements unless the phone was on his person, the CSLI
evidence did not taint the evidence that the phone was the one Zanders
used as his own.
Ultimately, while there was testimony that concluded, based on the
CSLI evidence, that Zanders was nearby when the robberies were
committed, more compelling evidence placed Zanders inside the liquor
stores as the person committing the robberies—and rendered that CSLI
evidence unimportant. In other words, the CSLI evidence was a drop in
the evidentiary bucket, relative to Zanders’s self-documented possession,
shortly after both robberies, of piles of cash and bottles of tequila
matching those stolen from the stores; his phone calls to the stores before
the robberies; his use of a red Pontiac G6 matching the robber’s getaway
car; and the clothing and handgun that police found when executing the
search warrants and that matched the surveillance videos of the robber.
Consistent with its relative insignificance, the State mentioned the CSLI
evidence only in passing in opening and closing arguments—without
repeatedly hammering it or orienting the State’s case around it.
Zanders nevertheless argues that the CSLI evidence was important. He
contends that “the State acknowledged that prior to the illegal search they
didn’t even have probable cause to arrest Zanders.” In the portion of
transcript Zanders quotes to support this argument, the prosecutor did
say that they viewed the purpose of obtaining the CSLI records, and
obtaining them quickly, as key to allowing them to get a warrant for his
arrest. But Zanders’s reliance on this statement suffers from at least three
problems that make his argument unconvincing.
First, the statement was spoken outside the presence of the jury; it was
part of the hearing on whether to admit the CSLI evidence. Certainly, a
prosecutor’s statements may suggest the importance of admitted
evidence. But the jury must have heard the statement for it to have any
impact on the verdict.
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Second, Zanders misconceives the harmless-error inquiry. We
acknowledge that the prosecutor did make similar statements to the jury
in the opening statement and closing argument: in opening, that based on
the information police gathered, including CSLI, they obtained search
warrants for the two residences; and in closing, that “the Facebook was
the first clue, then we got the cell phone tower locations. Then we had
probable cause to do a search . . . .” But these statements go to the State’s
investigative process, not to the strength of the State’s case without the
CSLI evidence.
To be sure, the question is not whether the CSLI search was important
for obtaining the warrants and evidence obtained from those warrants’
execution. It is whether the CSLI evidence that was admitted, but should
have been excluded, contributed to the jury’s guilty verdicts. In other
words, even if the CSLI search helped establish probable cause, 8 that
doesn’t mean the improperly admitted CSLI evidence was an important
part of the case that the State presented to the jury. And, as we’ve already
explained, even if the CSLI search contributed to the issuance of the
warrants, the evidence obtained from the execution of those warrants was
admissible under the good-faith exception.
Third, when read in context, the State’s statements go toward its
argument that exigent circumstances justified the warrantless search of
CSLI. The State emphasized that “the purpose of obtaining those records
and obtaining them quickly” was “because we had on the loose, someone
who was an armed robber and as the request indicates he was a suspect
and actually still is a suspect in some other robberies in the Tri-State area.”
So the statement was referring to the importance of obtaining the CSLI to
address the exigency officers believed they faced. It was not referring to
the importance of CSLI to establish Zanders’s guilt beyond a reasonable
doubt before a jury.
8As mentioned above, notwithstanding the prosecutor’s appraisal of the CSLI’s contribution
to probable cause, the warrants may have been supported by probable cause without the
reference to CSLI in the warrants’ affidavits.
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Thus, in light of the vast and weighty non-CSLI evidence presented to
the jury, the CSLI evidence was neither a pervasive nor an important part
of the State’s case. This brings us to our final point: Zanders’s counsel
extensively cross-examined the CSLI evidence’s proponent, calling
attention to the evidence’s weaknesses.
5. The CSLI Evidence Underwent Cross-Examination.
Although at its best the CSLI could indicate only that Zanders went
near the liquor stores around the time each was robbed, Zanders’s counsel
scrutinized the evidence on cross-examination. He questioned the
reliability of the technology, data, and Officer Pieczonka’s analysis; and he
illuminated possible alternative explanations for the CSLI data.
More specifically, when cross-examining Officer Pieczonka, counsel
questioned how the officer could know that the phone was on Zanders’s
person. He also exposed that Officer Pieczonka did not know, and the
records did not reveal, who had purchased the phone and subscribed to
the cell service.
Counsel next brought to the jury’s attention that Officer Pieczonka
didn’t know how many or where Sprint’s cell towers were located in
Cincinnati. Officer Pieczonka also agreed that whether a call bounces off
any particular tower can be affected by firewalls inside a building, trees,
the height of any particular tower, the types of buildings in that area, and
the nature of the terrain in that area. Later, he acknowledged that the
terrain in Cincinnati and Dearborn County includes hills, buildings, rough
terrain, and foliage.
And, finally, Officer Pieczonka agreed with defense counsel that there’s
always faulty equipment, and the officer supposed that if something goes
wrong with one tower, the signal could bounce off another one. Plus, he
said that under “FCC guidelines . . . you can only have so much power
going through these cell towers.” Officer Pieczonka agreed that human
error can be part of running any business, and the records did not name
Marcus Zanders as the phone owner, nor did they otherwise associate
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Zanders with the CSLI records; they identified the user only by the phone
number.
In sum, this cross-examination called attention to the CSLI evidence’s
weaknesses—which, even at its strongest, was swamped by other,
stronger evidence that Zanders was the man behind the mask in each
robbery. For this reason and others elaborated above, the admission of
CSLI evidence, if it was error, was harmless beyond a reasonable doubt.
Conclusion
In light of the Supreme Court’s decision in Carpenter, we hold that the
State’s access to Zanders’s historical CSLI was a Fourth Amendment
search. We also hold that, regardless of whether the search falls under the
exigent-circumstances exception to the Fourth Amendment’s warrant
requirement, the admission of the CSLI evidence was harmless beyond a
reasonable doubt. We therefore affirm Zanders’s convictions.
David, Massa, Slaughter, and Goff, JJ., concur.
Indiana Supreme Court | Case No. 15S01-1611-CR-571 | March 8, 2019 Page 30 of 31
ATTORNEYS FOR APPELLANT
Leanna Weissmann
Lawrenceburg, Indiana
David M. Shapiro
Roderick & Solange MacArthur Justice Center
Northwestern Pritzker School of Law
Chicago, Illinois
Tony Walker
The Walker Law Group, P.C.
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Stephen R. Creason
Chief Counsel
Tyler Banks
Deputy Attorney General
Indianapolis, Indiana
Indiana Supreme Court | Case No. 15S01-1611-CR-571 | March 8, 2019 Page 31 of 31