Rush, C.J.
Cell phones—once figments of science fiction—now live in most Americans’ pockets and purses. … Each time they make or receive calls, they leave a trail of digital crumbs known as historical cell-site location information (CSLI)—business records kept by service providers identifying which cell towers routed which communications. That CSLI is the focus of this case, which tests search-and-seizure protections under the Federal and Indiana Constitutions.
Here, in an effort to locate Marcus Zanders—an armed-robbery suspect at large—police asked his cell-phone service provider, Sprint, to provide historical CSLI. At Zanders’s trial, the State presented that CSLI, along with a detective’s explanatory testimony. Following his convictions on four robbery-related counts, Zanders appealed arguing that obtaining the CSLI violated his Federal and State Constitutional rights, and that the detective improperly testified as an expert witness. We disagree. …
On the evening of January 31, 2015, a masked man walked into Whitey’s Liquor Store in Lawrenceburg and pointed a handgun at the cashier’s face. The gunman grabbed cash, Newport cigarettes, and two bottles of Patron Tequila before disappearing into the night. Six days later, on February 6, a similar robbery happened at J & J Liquor Store in nearby Dillsboro. Around 9:00 p.m., J & J’s phone rang—someone with an Ohio number asking what time they closed. A half-hour later, a masked gunman barged in, took cash and 1800 Tequila, and sped off in a red Pontiac G6. The next morning, police plugged that Ohio number into Facebook’s search engine and the top result was Marcus Zanders’s publicly accessible profile. That profile featured a flurry of multimedia posts from the day after each robbery. …
Based on this Facebook information, Indiana police began to search for Zanders and asked Ohio police for assistance. At 1:57 p.m. the same day, an Indiana detective faxed a request to Zanders’s cell-service provider, Sprint, seeking historical CSLI business records identifying which cell towers handled Zanders’s calls for the past thirty days. But just two minutes later—at 1:59 p.m.—the search was over: Ohio officers located Zanders driving a red Pontiac in Cincinnati. They arrested him for driving with a suspended license and found a cell phone in his pocket that had the Ohio number used to call J & J.
Indiana detectives promptly traveled to Ohio to interview Zanders. … Zanders also said he had never been to Indiana and, after learning he was being accused of armed robbery, he terminated the interview.
Police then obtained and executed search warrants for Zanders’s mother’s and brother’s apartments. In the searches, police found luggage and a shoe box containing cash, clothing matching what the robber wore, a handgun, Newport cigarettes with an Indiana tax stamp, a box of Patron Tequila, and a bottle of 1800 Tequila with a price tag identical to those used by J & J.
The State charged Zanders with two counts of robbery with a deadly weapon and two counts of unlawful possession of a firearm by a serious violent felon. …
At Zanders’s jury trial, Sprint’s historical CSLI was admitted into evidence over Zanders’s objection. The State also introduced testimony from Detective Carl Pieczonka, who had analyzed the CSLI. Detective Pieczonka explained that Sprint collects CSLI when a cell phone makes or receives a call. …
The jury convicted Zanders on all four counts, and he pleaded guilty to the habitual offender charge. The court imposed an aggregate sentence of sixty-one years.
Zanders appealed, arguing that (1) the trial court abused its discretion in denying his motion for mistrial based on a witness’s improper in-court identification, (2) police obtained the CSLI in violation of his federal and Indiana constitutional rights, and (3) Detective Pieczonka improperly testified about the CSLI as an expert witness.
A split panel of the Court of Appeals reversed. Zanders v. State, 58 N.E.3d 254 (Ind. Ct. App. 2016). The majority first held that the trial court did not abuse its discretion in denying the motion for mistrial because the improper in-court identification did not place Zanders in grave peril. It then held that obtaining the historical CSLI without a warrant violated the Fourth Amendment, reasoning that Zanders had a reasonable expectation of privacy in the records. In reaching this conclusion, the majority declined to apply the third-party doctrine—the principle that a person does not have Fourth Amendment protection in information voluntarily provided to third parties. And finding the Fourth Amendment dispositive, the majority did not reach Zanders’s Indiana constitutional claim. Judge Kirsch dissented, believing the third-party doctrine did apply based on the overwhelming weight of federal authority. Id. at 268 (Kirsch, J., dissenting).
We granted the State’s petition to transfer, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).
Zanders’s first argument—that obtaining this historical CSLI without a warrant violated both the Federal and Indiana Constitutions—raises questions of law we review de novo. … His second argument—that admitting Detective Pieczonka’s testimony on that CSLI was error—raises an evidentiary issue we review for an abuse of discretion …
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We begin by providing some background about CSLI. In general, cell-service providers gather two types of CSLI: network-based (from the towers handling the phone’s calls) and handset-based (from the phone itself). … These sources provide different kinds of location data, but neither reveals the content of communications.
The first type of CSLI—network-based—may take several different forms. … For example, it may be either historical or real-time—historical when it shows past tower locations, and real-time when it shows current tower locations. … It may also be either active or passive. … Network-based CSLI may also be enhanced or manufactured through methods like “triangulation” and “pinging.” Triangulation is when service providers use multiple towers to calculate a phone’s location. And pinging is when providers affirmatively send signals to a phone in real-time, instead of waiting for the phone to make or receive a call. …
By contrast, handset-based CSLI (also known as GPS data) tends to be more accurate because it uses satellites to locate the phone itself. …This CSLI can typically pinpoint the phone’s location within thirty-three feet. Id. at 1193.
This case involves only historical, active, network-based CSLI—revealing only the towers that routed Zanders’s calls, not the content of his communications or any high-resolution location data. We leave other types of data—GPS, pinging, triangulation, passive, real-time, and so on— for another day. With that limited scope in mind, we turn first to the Fourth Amendment.
A. No “search” occurred under the Fourth Amendment when police gathered historical active CSLI that Zanders had already voluntarily relinquished to Sprint.
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” But not every police action is a “search.” A “search,” according to the United States Supreme Court, occurs only when the government either (1) commits “common-law trespass” or (2) violates a “reasonable expectation of privacy.” … The rub here is the latter—did police violate Zanders’s reasonable expectation of privacy by getting historical active CSLI from Sprint?
As part of the reasonable-expectation-of-privacy test, the Supreme Court has applied the “third-party doctrine”: the principle that individuals do not reasonably expect privacy in information they voluntarily relinquish to third parties. Smith v. Maryland, 442 U.S. 735, 743–44 (1979); United States v. Miller, 425 U.S. 435, 443 (1976). Zanders asserts that this doctrine does not apply to CSLI because he did not give it to Sprint voluntarily—since he did not know it existed and took no affirmative action to share it. …Taking our cue from the weight of federal precedent applying the third-party doctrine to historical CSLI, we find no “search” on this record.
1. The third-party doctrine is well-settled United States Supreme Court precedent, and most federal circuits addressing the issue apply the doctrine to CSLI.
En route to our conclusion that this was not a “search,” we look first to the two seminal United States Supreme Court cases applying the third-party doctrine to business documents:
United States v. Miller, 425 U.S. 435, and Smith v. Maryland, 442 U.S. 735. In Miller, federal agents subpoenaed a tax-fraud suspect’s bank for checks, deposit slips, and other account records. The question was straightforward: did the suspect have a “legitimate expectation of privacy” in those documents? The Court answered “no,” reasoning that when an individual “voluntarily convey[s]” information to a third-party bank and exposes that information to the bank’s employees in the ordinary course of business, the information is not the individual’s “private papers,” but rather the bank’s “business records.” …
The same logic held sway three years later in Smith. There, a robbery victim started receiving threatening calls from the defendant, so police had the telephone company install a “pen register” on the defendant’s landline to record any numbers dialed. As in Miller, the Court found no Fourth Amendment violation because the defendant “voluntarily conveyed” the dialed numbers to the telephone company, “expos[ing] that information to its equipment in the ordinary course of business.” …
Phone technology, of course, has exploded in the decades since Smith, and the United States Supreme Court has not yet clarified whether the third-party doctrine applies to historical CSLI. Five federal circuits, however, have answered that question—four saying “yes,” and only one saying “no.”
The four circuits applying the third-party doctrine—the Fourth, Fifth, Sixth, and Eleventh—reason that cell-phone users generally know that their phones must connect with towers to make and receive calls, and that service providers archive those connections for billing purposes. …
The minority position—including the Third Circuit and dissenting judges from other circuits—offers three main reasons why the third-party doctrine should not apply to historical CSLI. The position first asserts that cell users are likely unaware that historical CSLI is collected, so they cannot voluntarily share it “in any meaningful way.” … Next, the minority position argues that cell-phone users, unlike the telephone user in Smith who affirmatively dialed a number, do not affirmatively enter their location when they make and take calls. And finally, the minority position reasons that because historical CSLI is often voluminous, people do not share it voluntarily.
2. Aligning with the majority of federal circuits addressing the issue, we apply the third-party doctrine to CSLI and find no “search” here.
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Zanders also asserts that cell phones have become a modern-day necessity and so making and receiving calls is not really a “choice.” … The United States Supreme Court has thus twice rejected this argument, and it is not our place to reverse course. We find no Fourth Amendment “search” on this record.
B. Article 1, Section 11 likewise did not demand a search warrant for police to obtain this historical CSLI.
… Zanders also raises the Indiana Constitution’s Article 1, Section 11—Indiana’s constitutional analog to the Fourth Amendment—which requires a distinct inquiry. Carpenter, 18 N.E.3d at 1001 (citing Austin v. State, 997 N.E.2d 1027, 1034 (Ind. 2013)). Looking again narrowly to the facts before us, we find no Section 11 violation.
1. Because Article 1, Section 11 looks to the totality of the circumstances, it does not require the third-party doctrine.
Under Section 11, the State bears the burden of showing that police conduct was “reasonable under the totality of the circumstances.” …
Indeed, that unique vitality comes into sharp focus here—as we hold that the third-party doctrine plays no part in our State’s search-and-seizure jurisprudence. …
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So, when Hoosiers give information to third parties—like AT&T, Google, YouTube, and Facebook—this Court turns to our faithful stand-by: the Litchfield test.
2. Under Litchfield, police acted reasonably when they obtained minimally intrusive CSLI in order to prevent an armed-robbery suspect from striking again.
Though this Court has not yet applied Litchfield to CSLI, our Court of Appeals has— finding no violation. McCowan v. State, 10 N.E.3d 522, 533–35 (Ind. Ct. App. 2014) summarily aff’d in relevant part by McCowan v. State, 27 N.E.3d 760, 768 (Ind. 2015). The Court of Appeals found that each Litchfield factor weighed in favor of finding the police conduct reasonable….
First, the level of suspicion was high. …
Next, as Zanders admits, the level of intrusion was low because police obtained the same information as in McCowan—historical CSLI. Certainly, other types of CSLI can paint an intimate picture of one’s life. …
And finally, law enforcement needs, though not as exigent as in McCowan’s missing person search, were still urgent—preventing an armed-robbery suspect from striking again. …
On different facts, of course, the Section 11 scales might well have tipped the other way. Had police not linked Zanders’s Facebook page to the robberies, the level of suspicion might have been negligible. Had police obtained more sophisticated cell-phone records—like GPS or triangulated CSLI—the level of intrusion might have been higher. And had Zanders already been in custody when police requested the CSLI or had he been suspected of a less violent crime, the level of law enforcement needs might have been minimal. Those nuances, however, must wait for another case.
We turn now to Zanders’s final argument—challenging Detective Pieczonka’s testimony about the CSLI.
Zanders asserts that the trial court abused its discretion in allowing Detective Pieczonka to give expert testimony about the CSLI. …
In Indiana, knowledge beyond that of the average juror can qualify a witness as either an expert or a skilled witness. … A skilled witness, by contrast, is a person with “a degree of knowledge short of that sufficient to be declared an expert under [Indiana Evidence] Rule 702, but somewhat beyond that possessed by the ordinary jurors.” …
With respect to CSLI testimony specifically, our Court of Appeals has held that a police detective trained in cell-phone technology may explain CSLI to the jury as a skilled witness. See McCowan, 10 N.E.3d at 532–33.
The same is true here. Like the detective in McCowan, Detective Pieczonka testified about CSLI not as an expert, but as a skilled witness, summarizing and presenting Sprint’s records for the jury. …
The trial court thus did not abuse its discretion in allowing Detective Pieczonka to give skilled witness testimony.
… We therefore affirm Zanders’s convictions.
Massa and Slaughter, JJ., concur. David, J., concurs in part and dissents in part with separate opinion in which Rucker, J., concurs.
David, J., concurring in part, dissenting in part.
I agree with the majority that there is no Fourth Amendment violation and that the detective gave proper skilled-witness testimony. I further agree that Zanders’ Article 1, Section 11 argument is not waived for appellate review. However, I write separately because I disagree with the majority’s Article 1, Section 11 analysis. I would find that Zanders’ Article 1, Section 11 rights were violated.
As the majority observes, under Section 11, the State bears the burden of showing that police conduct was reasonable under the totality of circumstances. … I agree with the majority that the level of suspicion was high, but I disagree that the level of intrusion here was low and that law enforcement needs were so high that police needed to obtain the historical CSLI without a warrant.
… I do not believe that most Hoosiers who use cell phones understand and appreciate that, by contracting with a third-party cell phone provider, they are giving up information that may be turned over to police in an effort to locate them without the requirement of a search warrant.
I appreciate that the majority acknowledges that had police obtained more sophisticated cell phone records, the level of intrusion would be “higher,” but I feel that even given the limited CSLI requested here, the intrusion is high because it allows police to track the movements of private citizens who are using their phones, likely unbeknownst to them.
I am also troubled with the majority’s conclusion that law enforcement needs here were so high that the police could not obtain a warrant. … In today’s world, search warrants can be requested and, where warranted, obtained within minutes, not hours or days.
… Here, police submitted the records request to the phone company at 1:57 p.m. (and again, the day after the robbery). Thus, I see no reason that police could not have sought and obtained a warrant in this case.
In sum, I believe that while here the suspicion may have been high, the intrusion was also high and the extent of law enforcement needs was low, given that police could have and should have obtained a warrant. Accordingly, I would find that the search violated Zanders’ Article 1, Section 11 rights.
Rucker, J., concurs.