At some point after he was “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”, Michael Jason Registe filed a motion to suppress certain
phone records. Registe v. State, __ S.E.__, 2012 WL 5381248 (Georgia Supreme Court
2012). After the trial court judge
denied the motion, Registe “filed an application for an interlocutory appeal,”
which the Georgia Supreme Court granted.
Registe v. State, supra.
The issue he raised in the motion to suppress arose as the
result of the following events:
[The morning after the two men were murdered], [Lawrence] 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 [Georgia] 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.’
Registe v. State, supra.
Cricket Communications responded to the fax on July 22, 2007, with the
information Jackson had requested. Registe v. State, supra. More
precisely, Cricket reported that the “account belonged to `Kareem Penn,’ an
alias of Registe.” Registe v. State, supra.
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.
Registe v. State,
supra.
Registe filed his motion to suppress the phone records on
January 7, 2011, which the trial judge denied.
Registe v. State, supra.
The Supreme Court began its analysis of Registe’s motion to
suppress by noting that the trial judge’s “`findings on disputed facts will be
upheld unless clearly erroneous, and its application of the law to undisputed
facts is subject to de novo review.’” Registe
v. State, supra (quoting Barrett v. State, 289 Ga. 197, 709
S.E.2d 816 (Georgia Supreme Court 2011)).
It then noted that
[a]s 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 4th Amendment because they do not have a
reasonable expectation of privacy in records belonging to someone else. Kesler
v. State, 249 Ga. 462, 291 S.E.2d 497 (Georgia Supreme Court 1982).
Accordingly, Registe is not entitled to
challenge the release of phone records in this case on 4th Amendment grounds.
Registe v. State,
supra. (For more on why he lacked standing to raise a 4th
Amendment argument, check out this prior post.)
Since he could not rely on the 4th Amendment, Registe
argued that “the release of the cell phone records in this case failed to
comply with relevant state and federal statutory provisions.” Registe v. State, supra. The
relevant provision of Georgia law is Georgia Code § 16–11–66.1, which states
that:
(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.
And, as the Supreme Court explained, the
`laws of the United States’ referenced in the statute [quoted above] include the provisions of 18 U.S. Code § 2701 et seq., which address mandatory or voluntary disclosure of electronic communications records to the government. 18 U.S. Code § 2702(c)(4) allows the voluntary release of non-content records, including subscriber information, `to 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.’
Registe v. State, supra.
Registe argued that “in this case, there were no emergency
conditions supporting a release of the telephone records.” Registe
v. State, supra.
The Supreme Court first noted that “the remedy sought by
Registe, namely suppression of evidence, is not an available remedy under
either Georgia Code § 16–11–66.1 or 18
U.S. Code § 2702(c)(4). Registe
v. State, supra. It explained that Georgia Code § 16–11–66.1(e)
states that “[v]iolation of this Code section shall be punishable as contempt”,
which implied suppression was not a remedy for violating state law. Registe v. State, supra.
The court also noted that 18 U.S. Code § 2707 “allows a
subscriber [to file a civil action against any party who improperly releases
covered records or information”, which means that suppression is not a remedy
for violating federal law. Registe v. State, supra.
The Supreme Court then pointed out that, notwithstanding the
above provisions, Georgia Code § 16-11-67 states that “`[n]o 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.’”
Registe v. State, supra. Registe
argued that, “under this provision, the telephone records should have been
considered inadmissible.” Registe v. State, supra.
The Supreme Court did not buy his argument:
We disagree because the voluntary disclosure
of telephone records in this case satisfied the applicable statutes. Under the facts set forth
in the trial court's order, we conclude that Cricket believed in good faith
that disclosure of Registe's cell phone records was appropriate.
Here, Cricket received information
directly from police that its records could help identify an at-large suspect
of a double homicide committed within a day of the request and that the suspect
presented a present and immediate danger. This supported Cricket's good faith
belief that there was an ongoing emergency, and that belief supported Cricket's
voluntary disclosure of its records.
Registe v. State,
supra (emphasis in the original).
The court included two footnotes in the above paragraph, the
first of which said that because the disclosure was voluntary, “it is questionable
whether Georgia Code § 16–11–66.1 or Georgia Code § 16–11–67 are
applicable at all to this case, as the former statute appears to apply only to mandatory disclosures.”
Registe v. State, supra (emphasis in
the original).
The second footnote went to whether there was a violation of
federal law:
We emphasize that the release of
information in this case was voluntary and thereby governed
by 18 U.S. Code § 2702(c)(4). Cricket was not compelled to release its
records, but it did so in good faith. Had police mandated the
release of records and Cricket did not want to voluntarily release
them, 18 U.S. Code § 2703 would have required police to provide
Cricket with a warrant, court order, or evidence of the subscriber's consent.
Registe v. State, supra
(emphasis in the original).
The Supreme Court therefore held that
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.
Registe v. State,
supra.
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