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GA Supreme Court Addresses Issue of Police Obtaining Cell and ISP Records

November 16, 2012

In Registe v. State, the Georgia Supreme Court examined law enforcement's ability to obtain a person's cell phone communications and subscriber information without the person's consent or a court order.

Georgia law does provide a procedure for law enforcement to subpoena the information but only in emergency situations. The Court ultimately affirmed the trial court’s decision to deny the defendant’s motion to suppress evidence obtained from his cell phone service provider.

Registe was implicated in a double murder as a result of evidence obtained from his cell phone records. On July 20, 2007, two men were killed. Police questioned an individual who had been with the victims in the hours before the murders and discovered the two men were on the way to meet a man named “Mike,” whose cell phone number was given to the police.

Officers alerted the cell phone service provider to the investigation and requested that it release information about the owner of the cell phone number and communications conducted using the cell phone on the night of the incident. Officers stressed the immediate danger posed by having a suspect in a double murder still at large. The service provider complied with the request, and police discovered that Registe was the owner of the cell phone in question.

Officers gathered more circumstantial evidence after interviewing people who had seen Registe on the night of the incident. The police located the cell phone at issue when they executed a search warrant at Registe’s home.

Registe filed a motion to suppress the cell phone records turned over by the service provider. The trial court denied the motion and the Georgia Supreme Court affirmed the decision.

First, the Court found that Registe had no Fourth Amendment standing to contest the release of the information as the records in question belonged to the telephone company. Therefore, the Court held that Registe did not have a reasonable expectation of privacy in the contents of the records.

Next, the Court examined O.C.G.A. § 16-11-66.1, which states that law enforcement may compel the disclosure of certain records relating to electronic communications “to the extent and under the procedures and conditions provided for by the law of the United States.” The federal law applicable here, 18 U.S.C. § 2702, permits the voluntary disclosure of electronic communications records to the government “if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person” calls for such a disclosure.

Although the Court explained that the remedy of suppressing evidence is not available under either Georgia or federal law, it went on to argue that the service provider’s voluntary disclosure was still covered under the statutes. The company received information from law enforcement that established a good faith belief that there was an ongoing emergency and information in the company’s possession was needed to identify a murder suspect. Thus, the Court found that the disclosure of information by the service provider was appropriate and Registe’s motion to suppress was rightfully denied.

The concurrence lamented much of the majority’s reasoning and would have settled the case on the fact that neither statute at issue permitted the remedy of suppression of the evidence. The concurrence opined that the current statutory scheme creates a “loophole” where overzealous law enforcement officials can get around procedural barriers like warrants or subpoenas to access electronic information from cell phone and Internet service providers (ISP’s). Law enforcement officers frequently send requests like the one in Registe’s case to ISP’s to retrieve subscriber information in child pornography investigations where there is rarely a life or death emergency. The fear is that law enforcement will abuse their power to obtain information and will characterize the need for the information as more urgent than necessary in order to obtain the evidence.

Proponents of Registe’s concurrence would stress that possessors of electronic information should recognize their pivotal role in these types of investigations. The disclosure of the records in Registe’s case was voluntary; if future service providers demand more information from law enforcement before they reveal subscriber information, the worries of law enforcement overreaching will be less likely to occur.

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