In Ross v. State, the Georgia Supreme Court affirmed the defendant’s conviction for malice murder stemming from her alleged participation in a murder-for-hire plot.
The Court held that the trial court properly admitted cell phone “tower dump” records, finding that since the phone company was the owner of the records, the defendant had no standing to object to their admission at trial.
The record showed that the defendant’s friend Schoeck told the defendant she believed her husband was molesting her children. Because of this, Schoeck wanted to have the husband killed. The defendant put her friend in contact with her boyfriend, Coleman. The three met to plan the murder and discuss payment. They decided that the murder would take place on Valentine’s Day at Belton Bridge Park. Coleman texted Schoeck “Happy Valentine’s Day” after he shot her husband.
Evidence from Schoeck’s cell phone showed that the defendant and Coleman were both listed in her contacts and that she had been communicating with the defendant near the time of the murder.
Police sought cell phone “tower dump” records from Sprint which showed all calls made from the two cell towers located near the murder within four hours of the time the victim was shot. The records showed a call from Coleman to the defendant around the time the victim was shot. Based on this evidence, police sought and obtained the defendant’s phone records by court order. This information eventually led police to arrest Shoeck, who testified about the murder plot at the defendant’s trial. On appeal, the defendant argued that the trial court erred in admitting the cell phone tower records at trial.
The Georgia Supreme Court held that the defendant did not have standing to object to the seizure and use of this evidence at trial. In Kesler v. State, the Court had previously held that defendants generally do not have a reasonable expectation of privacy in records that belong to another person or company. The records were owned by Sprint, not the defendant.
The Court also noted that the records were only used to show contact between Coleman and the defendant, and not to show the defendant’s location at the time of the phone call. Therefore, the Court found that these records were akin to “telephone billing records, which are business records owned by the telephone company, not the defendant.”
It is clear that this decision would have been different had the cell tower records been used to establish the defendant’s location at the time of the murder. A person does have a reasonable expectation of privacy in information concerning his or her whereabouts. So, if the records were used for that purpose, the defendant would have had standing to contest their admission at trial.
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