By Ian Duncan, The Baltimore Sun
4:00 PM EDT, August 23, 2014
Prosecutors had no eyewitness tying Eric Jordan to a pair of armed robberies at Baltimore fast-food restaurants. But they didn't need one to win a conviction — radio waves darting from his cellphone had silently betrayed him.
A few paragraphs tapped out from a prosecutor's office and the flick of a judge's pen were all investigators needed to get the phone records. That turned Jordan's Sanyo phone into a weapon against him, calling into question his assertion that he hadn't acted as a getaway driver for Aaron Graham.
"He was untruthful when he denied being with Mr. Graham earlier in the day," a federal prosecutor said at their trial, summing up what the records indicated. "He was untruthful about that."
Now that investigative tactic has thrust the two convicts into the center of a debate about police powers and the meaning of privacy in the digital age. Their attorneys argue in appeals that the location data obtained by investigators breached their privacy and a search warrant should have been required.
The Baltimore case is among a handful of similar challenges that have been made in federal courtrooms across the nation, and it will be the first to be heard after a major Supreme Court ruling in June that requires police to have a warrant to search a phone after an arrest.
The case comes amid heightened interest in digital privacy issues because of the disclosures by former National Security Agency employee Edward Snowden about bulk collection of phone data. NSA officials have said they do not routinely obtain Americans' cell tower data, but some analysts have argued that pro-privacy rulings in the criminal cases could curb the activities of the Fort Meade-based agency.
In criminal cases, courts have long held that information turned over to a third party is no longer private, but the rulings and laws laying out that idea were decided before computers were in widespread use — never mind cellphones — and before Americans left electronic tracks in easy reach of police.
Now, a philosophical split on the issue has begun to emerge among the federal circuit courts. Some have allowed authorities to obtain the data from third parties while one imposed privacy protections — disagreements that heighten the chance that the Supreme Court will try to resolve the issue.
While civil liberties advocates argue that any one piece of location data can breach someone's privacy, they say the information becomes especially sensitive when the government obtains enough pieces to reconstruct comings and goings over a long period.
Graham, 52, and Jordan, 51, were convicted on robbery and gun charges after a lengthy trial in 2012. Now their lawyers are asking the 4th Circuit Court of Appeals in Richmond, Va., to use the case to create new protections for location data that are robust enough for the 21st century.
"All of us have things in our lives that we want to keep private, whether it's our romantic relationships or our trips to the doctor," said Nate Wessler, an attorney with the American Civil Liberties Union who has been involved in the case. "If the government is going to obtain a transcript of everywhere we've been over a long period of time, it should have to provide good reason to a judge that thinks a person has committed a crime."
But Rod J. Rosenstein, the U.S. attorney for Maryland, said such fears are overblown and that authorities do not use the cell data to snoop. Having to get a warrant would make it more difficult for prosecutors to obtain key investigative information, he said.
"We're looking at specific incidents," he said. "Investigators are not interested in reconstructing somebody's entire life."
Despite his confidence in the legal arguments, Rosenstein said the appeal has prompted a change of policy. Until the 4th Circuit rules, prosecutors are seeking warrants when they have time, he said. In emergencies, they will rely on court orders that are easier to obtain than warrants.
Known as "(d) orders" after a section in the federal law that governs them, the court orders can be obtained if prosecutors can offer "specific and articulable facts" showing that the information will be relevant to an investigation, a lower standard than the probable cause required to obtain a warrant.
Graham and Jordan are far from alone in being ensnared by data from a cellphone; the use of cell tower location information has become fairly common in criminal cases. Despite the lofty legal debate, many of the cases feature the kinds of allegations aired daily in Baltimore's courts.
Federal prosecutors recently used such data to clear a man wrongfully convicted of murder and to help convict another for plotting the crime.
They are now seeking to use cell site data against a Ukrainian landlord suspected of setting fires at buildings she owned in Baltimore, against a suspected bank robber who dressed in drag and against a onetime nightclub bouncer charged with lying to insurance regulators. Some of those defendants are challenging the government's actions in obtaining the data.
The case involving Graham and Jordan began on the afternoon of Feb. 5, 2011, with a Ford F-150 truck speeding through an industrial area in Southwest Baltimore. Jordan was at the wheel.
A patrol car could barely keep up until Jordan was forced to stop when a CSX train blocked the road. Jordan — who maintains his innocence, according to his attorney — later testified that he was rushing to Wal-Mart so Graham could buy a television to host a Super Bowl party.
Graham was sitting on the passenger's side, and police found a pistol with a pearl handle under the seat and $83 cash in the center console.
Hours earlier, a man had robbed a Burger King across from Carroll Park, leaping over the counter, bashing an employee in the head with his gun butt and emptying cash drawers. About an hour after that, a man robbed a McDonald's less than two miles away.
Employees of the restaurants identified Graham as the robber and the truck as his getaway vehicle. No one identified Jordan.
After the two were charged, federal prosecutors working with the FBI asked a judge to order that Sprint turn over 221 days of phone location logs.
Investigators combed the calls Jordan and Graham made the day they were arrested. Records showed that Graham used his phone just before 3 p.m. Radio waves from his phone jumped to a cell tower at the back of the Beth Shalom Hebrew Young Men's Cemetery in Woodlawn. When Jordan answered eight seconds later, his phone was in contact with the same antenna.
Cities are thick with towers — Sprint had about 700 in Central Maryland in 2011 and each had three faces creating segments of cell coverage shaped like pie slices, according to records made public in the court case.
During that afternoon call, both men were in the same coverage segment, the records showed. Graham's and Jordan's phones also communicated with the same tower in the moments after each robbery. Those calls bounced to antennas clinging to the side of a housing complex and a rusted industrial building.
The breadth of the request — defense lawyers called it a digital "dragnet" — was designed to help police figure out whether the men could be tied to other robberies.
In his closing argument, prosecutor Benjamin Block acknowledged that the cellphone records did not make the case by themselves, but tied all the other evidence together.
"It is corroboration," he told the jury. "It's corroboration of everything else that you've heard."
But the ACLU and other privacy groups argued in court filings that the records allowed investigators to learn much more about Graham and Jordan.
"Similar data could just as easily be used to conclude from cell site data points when a person visited their doctor's office or church," the groups wrote in a supporting brief.
Prosecutors had obtained tens of thousands of call records. Block noted at the trial that Graham was a "big fan of his cellphone." Few ended up being relevant to the criminal investigation, but they did give the government a window into the men's lives, the privacy advocates say.
They pointed out that almost one-third of Graham's calls were linked to the tower and coverage segment nearest his home; others suggested times when he was accompanying his pregnant wife on doctor's visits.
As technology has offered police new ways to solve crimes, they have galloped ahead, leaving judges and defense attorneys behind. Courts have recognized that the meaning of the 223-year-old Fourth Amendment — which prohibits unreasonable searches and seizures — needs to evolve with technology, but have struggled with applying that idea in practice.
In recent years, the Supreme Court has begun to offer some guidance. In 2012, the justices ruled that investigators cannot generally place a Global Positioning System tracking device on a car without a warrant, but split on the reasons why.
The leading opinion concluded that the act of putting the tracking device on the car amounted to a search. But Justice Samuel A. Alito penned a more expansive opinion arguing that the amount of location information the device allowed the government to collect was a breach of privacy.
"Society's expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalog every single movement of an individual's car for a very long period," Alito wrote.
Looking to that opinion, a panel of the 11th Circuit Court of Appeals ruled in June on a Florida robbery case similar to Graham's and Jordan's. The court held that cellphone information is potentially even more revealing because a phone can move inside someone's home. So, the court ruled, police should have obtained a warrant before pulling phone tower information.
In earlier cases, two courts ruled the other way. The U.S. Justice Department is challenging the conclusion in the Florida case and has asked the 11th Circuit for another hearing.
Soon after the 11th Circuit decision — which does not bind Maryland judges — the Supreme Court ruled that police cannot rifle through someone's phone at the time of an arrest and must get a warrant for such a search. The court reasoned that a phone can contain vastly more information than someone's pockets ever could.
"Modern cellphones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse," Chief Justice John G. Roberts Jr. wrote.
Judges handling the appeal by Graham and Jordan put it on hold until after the cellphone search case was decided by the Supreme Court. They asked both sides to weigh in on the implications.
The U.S. attorney's office made a distinction between the two cases, arguing that because the Baltimore case involved prosecutors obtaining the data from a third party rather than from inside a cellphone itself they had not carried out a search.
"Investigators routinely gather a variety of types of information that they aggregate to reveal evidence of criminal conduct, but search warrants normally are not required to obtain information from third parties," prosecutors wrote in court papers.
But defense lawyers looked at the case as further evidence that courts should limit access to tower location information.
At the end of their last brief they proposed three words from the Supreme Court opinion that the appeals judges should echo: "Get a warrant."
For all the legal posturing and keen interest by national privacy groups in the appeal, the stakes are the highest for the two prisoners. Their sentences virtually ensure that they will die behind bars: Jordan received a 72-year sentence and Graham a 147-year term.
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