Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
Florida’s Fourth District Court of Appeal has published an opinion on an interesting and timely topic-whether police need probable cause to obtain prospective cell site information. In Tracey v. State, No. 4D09-3565, the Court held that the police did not violate the Fourth Amendment when they used “real time” or prospective cell site information to track a suspect on public roads.
By way of background, footnotes 1 and 2 of the opinion discuss two tools which are related to cell phone use, and which allow law enforcement officers to track suspects: pen registers and trap and trace devices. Under Florida law, a pen register is defined as “a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(20) (2009). A “trap and trace device” is defined as “a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(21) (2009).
Key to the Fourth District’s analysis was the fact that the police were tracking Tracey on public roads. The Fourth relied on United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705, 707 (1984), where the United States Supreme Court upheld a law enforcement officer’s installation of a beeper to track a suspect’s car on public roads because the police officer did not obtain information which could not have been obtained
through visual surveillance.
Federal courts are presented with this issue much more often than the State courts. I know from my time as a Law Clerk in the United States District Court for the Southern District of Florida that federal prosecutors routinely apply to the Court for pen registers and trap and trace devices as part of their criminal investigations. While Judges in the Southern District require the prosecutors to show probable cause before they will allow a pen register or trap and trace to issue, it is important to note that the Federal courts do not approach the issue uniformly.
Some Federal courts have held that prospective or “real time” cell site information can only be obtained upon a showing of probable cause, contrary to the Fourth District’s holding in Tracey. See In re APPLICATION FOR PEN REGISTER AND TRAP/TRACE DEVICE WITH CELL SITE LOCATION AUTHORITY, 396 F. Supp. 2d 747 (S.D. Tex. 2005); In re APPLICATION OF THE UNITED STATES FOR AN ORDER (1) AUTHORIZING THE USE OF A PEN REGISTER AND A TRAP AND TRACE DEVICE, 396 F. Supp. 2d 294 (E.D.N.Y.2005). Federal courts may also differ on the issue of whether a showing of probable cause is required to obtain historical cell site data. SeeIn re Application of the UNITED STATES of America FOR HISTORICAL CELL SITE DATA, 747 F. Supp. 2d 827 (S.D. Tex. 2010); In re APPLICATION OF the UNITED STATES of America FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO the GOVERNMENT, 620 F. 3d 304 (3rd Cir. 2010).
A note of caution: this listing of cases is only the tip of the iceberg. Florida criminal defense attorneys will have to undertake a thorough review of the facts of their cases and the relevant caselaw to determine how to proceed if they are presented with an issue regarding their client’s cell phone data. While the Fourth District’s opinion in Tracey gives law enforcement the upper hand in some respects, Florida criminal defense attorneys must keep in mind that Florida courts are bound to follow Fourth Amendment analysis as enunciated by the United States Supreme Court. See Rolling v. State, 695 So. 2d 278, 297 n. 10 (Fla. 1997); Fla. Const. art. I, sec. 12. Given the different approaches being taken by the Federal courts, perhaps the United States Supreme Court will have the opportunity to address the issue sooner rather than later. And if the Court does find that probable cause is required to obtain these types of cell phone information, that would mean a victory for the defense!
In December of 2010, the Florida Supreme Court held that when a Defendant files a motion to dismiss claiming immunity from prosecution under Florida statute section 776.032, otherwise known as Florida’s”Stand Your Ground” statute, the trial court is required to hold a pre-trial evidentiary hearing to “decide the factual question of the applicability of the statutory immunity.” See Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010). According to the Court, while a motion to dismiss based on section 776.032 should properly be filed pursuant to Fla. R. Crim. P. 3.190(b), the trial court is still required to hold an evidentiary hearing even if the motion to dismiss is mistakenly filed pursuant to Fla. R. Crim. P. 3.190(c)(4). Finally, the Court noted that any motions to dismiss mistakenly filed under Rule 3.190(c)(4) should be treated as having been properly filed under Rule 3.190(b). Where the trial court fails to hold a pre-trial evidentiary hearing, any appeal of the failure to hold the hearing should be analyzed under the “harmless error test” of State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). See Dennis, 51 So. 3d 464 (noting that an error is harmless if “the error complained of did not contribute to the verdict or, alternatively stated, . . . that there is no reasonable possibility that the error contributed to the conviction.”)
This issue continues to be a hot topic. On August 31, 2011, Florida’s Fourth District Court of Appeal was the latest court to issue an opinion on the issue. See Govoni v. State, No. 4D09-2371 (remanding case for trial court to conduct evidentiary hearing pursuant to Dennis) (slip opinion).
As I discussed in my previous post, generally speaking, issues must be properly and timely preserved in order for such issues to be considered on appeal. However, in criminal cases, where an error is so serious as to be deemed fundamental, an appellate court may review such errors even if trial counsel failed to object. Florida’s Fourth District Court of Appeal recently applied the doctrine of fundamental error.
In Brett Fenster v. State of Florida, 4D07-1983 (slip opinion, May 18, 2011) (not final until disposition of timely filed motion for rehearing), the Defendant argued, inter alia, that the prosecutor made fifteen improper comments during closing argument which warranted a new trial. However, the Court disagreed, and held that although the comments were not proper, the comments did not rise to the level of harmful or fundamental error. In its rationale, the Court noted that Defendant conceded that at trial, defense counsel only objected to two of the fifteen allegedly improper comments. Nevertheless, the Court recalled that pursuant to Martinez v. State, 761 So. 2d 1074, 1082-1083 (Fla. 2000), an appellate court may consider both preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt. Unfortunately for Defendant, even after considering the preserved and unpreserved errors, the Fourth District ultimately concluded that any errors were harmless beyond a reasonable doubt, and that the cumulative effect of the errors did not rise to the level of fundamental error. See Fenster, 4D07-1983, slip op. at *3 (citing Boyd v. State, 45 So. 3d 557, 560 (Fla. 4th DCA 2010) (“Improper comments rise to the level of fundamental error only where the error ‘reaches down into the validity of the trial itself to
the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’”) (citation omitted)).
As can be seen from Fenster‘s quotation of Boyd, 45 So. 3d 557, the standard of fundamental error may be difficult to meet. Nevertheless, the doctrine remains a viable exception to the preservation of error rule.