Riley, J.
Appellant-Defendant, Marcus Zanders (Zanders), appeals his conviction for two Counts of robbery with a deadly weapon, Level 3 felonies; two Counts of unlawful possession of a firearm as a serious violent felon, Level 4 felonies; and his adjudication as an habitual offender.
We reverse.
Zanders raises three issues on appeal, two of which we find dispositive and which we restate as:
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(2) Whether the warrantless seizure of Zanders’ cell phone provider’s records, which included the location data of Zanders’ cell phone, violated his Fourth Amendment Rights.
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On February 6, 2015, Danielle Pruitt (Pruitt) was working at J & J Liquor Store in Dillsboro, Indiana. At approximately 9:00 p.m., Pruitt received a phone call, with an Ohio area code and with the caller inquiring about the store’s closing time. … Within thirty minutes, an African American male, wearing a gray hooded sweatshirt, gray sweatpants with a navy blue Polo horse logo, white tennis shoes, and black gloves entered the store. He was armed with a black pistol. At his command, Pruitt grabbed a bag and stuffed it with the money from the store’s three registers. …
Detective Garland Bridges (Detective Bridges) of the Dearborn County Sheriff’s Department responded to the call from J & J Liquor store and spoke with Pruitt. Pruitt informed the Detective about the phone call with Ohio area code. After Detective Bridges relayed the telephone number to Detective Carl Pieczonka (Detective Pieczonka), Detective Pieczonka entered the phone number into the Facebook search engine. The only result from this search was Zanders’ Facebook page. …
Based on the information from the Facebook page, Zanders was placed under surveillance. … After Zanders committed a traffic violation, he was pulled over and arrested for driving with a suspended license. Detective Bridges and another officer travelled to Ohio to interview Zanders. … He terminated the interview when he was accused of armed robbery.
While Zanders was being interviewed, Detective Bridges made an emergency request to Zanders’ cell phone provider (Provider) to secure the records associated with Zanders’ cell phone number. Based on this request, Provider supplied Detective Bridges with Zanders’ call and cell-site location data for the previous thirty days. …
Based on the historical location data disclosed by the Provider, a search warrant for Zanders’ mother’s residence and his brother’s home were sought, secured, and executed. …
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On July 21 through July 23, 2015, the trial court conducted a bifurcated jury trial. … At the close of the evidence, the jury convicted Zanders of the two Counts of robbery with a deadly weapon and two Counts of unlawful possession of a firearm by a serious violent felon. Zanders pled guilty to being a habitual offender during the second phase of his trial. On September 8, 2015, the trial court sentenced Zanders to sixteen years each on the two Counts of robbery with a deadly weapon and six years and three years respectively on the two Counts of unlawful possession of a firearm. The sentences were ordered to run consecutively. Zanders’ sentence for one Count of the robbery convictions was enhanced by twenty years for the habitual offender adjudication. In sum, Zanders received an aggregate sentence of sixty-one years.
Zanders now appeals. …
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The day after the J & J Liquor store robbery, Detective Bridges obtained Zanders’ cell phone records from Provider through an emergency request and without a warrant. These records included Zanders’ historical location data, i.e., the detailed records of his calls and cell-site location, as well as his GPS location. The trial court admitted these records at trial over Zanders’ objection. In an issue of first impression, Zanders now contends that the warrantless search of his cell phone’s historical location data as compiled by Provider violated the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.
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For years, courts and commentators have begun to acknowledge the increasing tension, wrought by our technological age, between the third-party doctrine and the primacy that the Fourth Amendment doctrine grants to our society’s expectation of privacy. …
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Zanders had a reasonable expectation of privacy in the cell-site location data stored by Provider and obtained by Detective Bridges and his expectation was one that society considers reasonable and legitimate. Cell-site data is not the type of information which spoils or perishes during the short time it takes to get a warrant and, as such, imposing the requirements for a warrant under these circumstances would hardly shackle law enforcements from conducting effective investigations. Cf. Riley, 134 S.Ct. at 2493 (noting that “[r]ecent technological advances . . . have . . . made the process of obtaining a warrant itself more efficient”).
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.
Id. But still, the Riley Court insisted that law enforcement officers get a warrant before searching a cell phone incident to arrest and the Wertz court insisted on a warrant to search the location data on a GPS device. See Riley, 134 S.Ct. at 2485, Wertz, 41 N.E.3d at 284-85. So here too. We require police officers to do what they have done for decades when seeking to intrude upon a reasonable expectation of privacy: get a warrant. As Detective Bridges neglected to get a warrant, we reverse and order the trial court to vacate Zanders’ convictions.
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Reversed.
Pyle, J. concurs
Kirsch, J. dissents with separate opinion
I respectfully dissent. ….
Although I share the concerns of my colleagues regarding the tensions arising from the constantly mushrooming technology, the government here did not transgress the defendant’s reasonable expectations, and I would affirm his convictions for two counts of robbery with a deadly weapon as Level 3 felonies, two counts of unlawful possession of a firearm as a serious violent felon as Level 4 felonies, and his adjudication as a habitual offender.