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Md. appellate court upholds conviction relying on evidence obtained in violation of Stored Communication Act.

By Fairfax/Northern Virginia Criminal Defense/DWI lawyer Jon Katz. Pursuing the best outcome for felonies, misdemeanors, drugs, marijuana, sex crimes, prostitution, weapons, assault, and all other alleged crimes.

04 Dec Md. appellate court upholds conviction relying on evidence obtained in violation of Stored Communication Act.

For federal prosecutions — and in Maryland, to name one state — statutory law generally prohibits phone service providers from disclosing material subscriber information to police without a court order.

What happens when a phone company provides such information to police wihtout court order? Maryland’s intermediate appellate court recently considered this issue, concluding that people do not have a reasonable expectation of privacy under the Fourth Amendment in their phone company subscriber data — and concludes that federal appellate courts have held the same — and the state statute does not provide for excluding such evidence when a phone company provides such information to police without a court order.

Here, Darren Whittington was stabbed and survived, and told police that "Ace" stabbed him. Whittington did not know Ace’s real name, but let police obtain Ace’s phone number from Whittington’s cellphone. Without obtaining a court order, the police tracked down Ace’s cellphone number to Sprint, which provided Ace’s subscriber information to the police without a court order in violation of Maryland’s Stored Communication Act (which confirms we cannot rely on our cellphone carriers to protect our privacy).

Defendant Upshur was one of the subscriber’s to Ace’s phone number, and Whittington identified Upshur’s photograph, albeit in a tainted identification process that the appellate court forgave, becaue Whittington already knew Upshur from before. Upshure got convicted for assault, and the appellate court affirmed his conviction. Upshur v. Maryland, ___ Md. App. ___ (Nov. 28, 2012).

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