The SCA protects the privacy of electronic communications under two paths: by limiting providers’ ability to voluntarily disclose a user's information, in 18 USC § 2702, and by specifying the circumstances in which the government can compel providers to disclose their users’ information, in 18 USC § 2703. See Alexander v. Verizon Wireless Svcs. , 875 F.3d 243, 250 (III) (5th Cir. 2017) ; Registe v. State , 292 Ga. 154, 155-156, 734 S.E.2d 19 (2012). In terms of voluntary disclosures under 18 USC § 2702, the SCA generally prohibits a provider from voluntarily divulging "a record or other information pertaining to a subscriber to or customer of such service ... to any governmental entity."
The trial court held a hearing on the motion to suppress, and the sole witness was the GBI agent who made the exigent circumstances request on July 2, 2013. Swinson's counsel argued that the cell-site data, and any evidence subsequently obtained from it, should be suppressed because the State was required to obtain a search warrant before AT&T could furnish the data. The trial court denied the motion to suppress, however, finding that the telephone records pertaining to his cell phone were owned by AT&T, and Swinson did not have a reasonable expectation of privacy in those records; thus, he lacked standing to challenge the release of the records to the GBI, citing this Court's opinion in Registe v. State , 292 Ga. 154, 156, 734 S.E.2d 19 (2012). The trial court further concluded that suppression of the evidence was not a remedy available under applicable federal and state law and that AT&T complied with the law in producing the cell phone records.
Accordingly, [Ross] is not entitled to challenge the release of [the tower dump] phone records in this case on Fourth Amendment grounds.Registe v. State, 292 Ga. 154, 156, 734 S.E.2d 19 (2012).In this regard, Ross also would not have standing to challenge the admission of the “tower dump” records themselves (as opposed to the contents of her phone calls) under State law, as a defendant who lacks standing to challenge the admission into evidence of stored electronic records under the Fourth Amendment similarly lacks standing to challenge the admission of such records under OCGA § 16–11–67.
Nevertheless, the State also argued that “this wasn't even a roadblock case” because the south-side officer was justified in stopping Williams for “bypassing” the north-side officers. And although the trial court did not deny Williams's motion on the ground that the stop was independently justified, “a trial court's ruling on a motion to suppress will be upheld if it is right for any reason.” Registe v. State, 292 Ga. 154, 157, n. 6, 734 S.E.2d 19 (2012). Thus, we are authorized to consider this argument on appeal.
First, although Detective Gilley did state that he did not need the subscriber's current location and that the fire had occurred several hours earlier, these statements in themselves, even assuming Cole ultimately released the records or communicated this information to the person who did, do not preclude the fact that the situation was an emergency. See, e.g. , Registe v. State , 292 Ga. 154, 734 S.E.2d 19, 21 (2012) (concluding that a provider believed in good faith that disclosure under § 2702(c)(4) was appropriate where the provider "received information directly from police that its records could help identify an at-large suspect of a double homicide committed within a day of the request and that the suspect presented a present and immediate danger"). Second, with respect to Cole's comment that Detective Gilley's initial statements met Verizon's "guidelines," this statement has little effect on the analysis, since it is undisputed that no records were actually released until after Verizon received the completed "Emergency Situation Disclosure" form. Third, and most important, the situation could have changed between the time Detective Gilley spoke with Cole and the time when he submitted the form to Verizon.
The law in Georgia at the time of his conviction was that no warrant was required for such information. Registe v. Georgia, 292 Ga. 154 (2012) (holding that voluntary disclosure of defendant's cellular telephone records by service provider did not require suppression of the records), overruling recognized in Outlaw v. Georgia, 311 Ga. 396, 401 (2021). The good-faith exception to the exclusionary rule therefore applies.
Thus, we will assume, for purposes of this motion, that Ms. Cole did conduct some form of independent analysis finding that an emergency circumstance justified faxing Detective Gilley the requisite paperwork. See Registe v. State,734 S.E. 2d 19 (Ga. 2012) (finding good faith reliance where the cell phone service provider received information directly from police that its records could help identify an at-large suspect of a double homicide committed the day before and that the suspect presented a present and immediate danger); Jayne, 2009 WL 426117 (finding sufficient proof of an emergency situation communicated by police officers to Sprint, justifying disclosure and entitling Sprint to immunity).
See Lofton , 854 S.E.2d at 697, 702. See also Ross v. State , 296 Ga. 636, 639, 769 S.E.2d 43 (2015), overruled by Carpenter , 138 S.Ct. at 2221 ; Registe v. State , 292 Ga. 154, 156, 734 S.E.2d 19 (2012), overruled by Carpenter , 138 S.Ct. at 2221 ; Smarr , 317 Ga. App. at 593-594 & nn.24, 25, 732 S.E.2d 110. Because 18 USC § 2703 (c) (1) (B) and (d) and binding appellate precedent authorized the State's investigative conduct in April 2014, the exclusionary rule does not apply.
See Lofton, ––– Ga. ––––, ––– S.E.2d –––– ; see also Reed v. State , 307 Ga. 527, 535 (2) (b), (837 S.E.2d 272) (2019) (ineffective assistance of counsel claim rejected because "[a]t the time of Appellant's trial, Georgia appellate precedent held that a search warrant was not required to obtain CSLI."). In Lofton and Registe v. State , 292 Ga. 154, 155-156, 734 S.E.2d 19 (2012), we concluded, after a thorough review of the controlling decisional and statutory law, that the applicable laws in effect at the time, particularly the provision of 18 USC § 2702 (c) (4) for voluntary disclosure of CSLI when "the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay," supported the disclosure of the CSLI without a warrant. Lofton , ––– Ga. ––––, ––– S.E.2d ––––.
Here, the evidence shows the initial emergency request to the service provider for call detail information was promptly followed by a grand jury subpoena. Thus, the concerns raised by the special concurrence in Registe v. State , 292 Ga. 154, 159, 734 S.E.2d 19 (2012) (Hunstein, C.J., and Blackwell, J., concurring specially and citing the potential for abuse of requests to cell phone service providers made without a warrant or court order) are not present in this case. Citing Riley v. California, Marchman challenges the cell phone evidence presented at trial on the ground that the State failed to obtain a search warrant for this evidence and therefore violated his constitutional right to be protected from unreasonable searches and seizures.