State v. Justin Jamal Warner ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Justin Jamal Warner, Petitioner.
Appellate Case No. 2020-000930
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Anderson County
R. Lawton McIntosh, Circuit Court Judge
Opinion No. 28094
Heard November 8, 2021 – Filed April 13, 2022
AFFIRMED IN PART AND REMANDED
Chief Appellate Defender Robert Michael Dudek and
Appellate Defender Adam Sinclair Ruffin, of Columbia,
for Petitioner.
Attorney General Alan McCrory Wilson, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown, and Senior
Assistant Attorney General W. Edgar Salter III, of
Columbia, for Respondent.
JUSTICE FEW: A jury convicted Justin Jamal Warner of murder, attempted
armed robbery, and possession of a weapon during the commission of a violent
crime. The court of appeals affirmed. We granted Warner's petition for a writ of
certiorari to address: (1) whether the trial court was correct to deny Warner's motion
to suppress cell-site location information (CSLI) 1 seized from his cell phone service
provider; and (2) whether an out-of-court viewing by Warner's probation officer of
a crime-scene video and the officer's identification of Warner as the man in the video
required a hearing under Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d
401 (1972). We find the trial court correctly ruled the identification made from the
video did not require a Biggers hearing. As to the CSLI, we hold the warrant the
trial court found invalid because the warrant sought information stored in another
state is not—at least for that reason—invalid. We affirm the court of appeals as to
the Biggers issue and remand to the trial court for further proceedings as to Warner's
motion to suppress CSLI.
I. Facts and History
On April 30, 2015, Warner entered the BP store at the intersection of I-85 and S.C.
153 in Anderson County. Warner showed his identification to the cashier for the
purpose of purchasing cigars. The cashier—Mradulaben Patel—entered Warner's
date of birth into the computerized cash register and opened it. Warner then pulled
out a gun, pointed it at Patel, and attempted to reach into the cash drawer. When
Patel resisted, Warner shot her. Warner then left the store without completing the
robbery. Patel died several days after the shooting.
Officers from the Anderson County Sheriff's Office obtained video of the incident
from security cameras installed at the store. On May 4, 2015, officers received an
anonymous Crimestoppers tip alleging Warner was the person who committed the
crimes. After reviewing the tip, officers realized Warner's date of birth matched the
date Patel entered into the register. A detective then contacted Nathan Goolsby—
1
"Most modern devices, such as smartphones, tap into the wireless network several
times a minute whenever their signal is on, even if the owner is not using one of the
phone's features. Each time the phone connects to a cell site, it generates a time-
stamped record known as cell-site location information (CSLI). The precision of
this information depends on the size of the geographic area covered by the cell site.
The greater the concentration of cell sites, the smaller the coverage area." Carpenter
v. United States, 585 U.S. ___, ___, 138 S. Ct. 2206, 2211, 201 L. Ed. 2d 507, 515
(2018).
Warner's probation officer in Georgia—and sent him the crime-scene video. The
detective asked Goolsby whether he could identify the person in the video as Warner.
Goolsby then identified Warner as the person in the video.
Also on May 4, an Anderson County magistrate issued a warrant to "T-Mobile"
authorizing the seizure of "subscriber information . . . from [Warner's cell number]
starting on April 26, 2015 and continuing through May 4, 2015. Also tower locations
to include physical addresses and or GPS coordinates." The warrant indicated it
sought "records located at [an address in] New Jersey." A detective sent the warrant
by facsimile to T-Mobile at the offices of its "Law Enforcement Relations Group"
in New Jersey. Three days later, the Law Enforcement Relations Group
responded—also by facsimile—stating, "This is in response to the Search Warrant,
dated May 04, 2015, and served upon T-Mobile USA, Inc. on May 7, 2015." The
facsimile response attached the requested records and indicated, "Original materials
follow via US Mail."
An FBI expert testified the records showed Warner's cell phone communicating with
cell towers near the location of the crime—indicating his presence near the BP
store—at the general time the crime occurred.2 The FBI expert's testimony was
important to proving Warner committed the crimes because the State also proved
Warner lived in a suburb of Atlanta, Georgia, over 130 miles from the BP store. The
FBI expert's testimony indicated Warner drove along I-85 from the Atlanta area past
S.C. 153 into Greenville County, and then returned to Anderson County in the
general vicinity of the BP store at approximately the time of the crimes.
Warner moved to suppress the CSLI. During the suppression hearing, the State
explained that cell phone providers like T-Mobile require a warrant to be sent to their
offices in another state. The trial court summarily ruled the warrant was invalid
because the requested records were stored in New Jersey, and it was "beyond the
scope of authority of a [South Carolina] magistrate to obtain these records" in New
Jersey. The trial court nevertheless denied the motion to suppress, finding the law
at that time did not require a warrant. Warner also requested a Biggers hearing,
contending Goolsby identified him in an unnecessarily suggestive identification
procedure. The trial court ruled Biggers was not applicable because Goolsby was
not an eyewitness and refused to conduct a hearing.
2
The FBI expert was Special Agent David Church. The court of appeals extensively
analyzed Special Agent Church's qualifications as an expert in CSLI as part of its
analysis of the admissibility of his opinions. State v. Warner, 430 S.C. 76, 83-89,
842 S.E.2d 361, 364-67 (Ct. App. 2020).
Warner's trial took place from May 22 to May 25, 2017. After the jury convicted
him, the trial court sentenced Warner to life in prison for murder and concurrent
prison terms of twenty years for attempted armed robbery and five years for
possession of a weapon during the commission of a violent crime. Warner appealed,
and the court of appeals affirmed the trial court on all issues. State v. Warner, 430
S.C. 76, 842 S.E.2d 361 (Ct. App. 2020). We granted Warner's petition for a writ of
certiorari only on the two questions explained above.
II. Motion to Suppress CSLI
Before 2014, courts generally did not even discuss whether the Fourth Amendment
requires a warrant for digital information generated by or stored on a cell phone. See
generally United States v. Graham, 824 F.3d 421, 428-29, 428-29 n.6, 429 n.7 (4th
Cir. 2016) (en banc) (explaining the scant authority whether the Fourth Amendment
protects CSLI, and citing federal and state cases nationwide); Eric Lode, Annotation,
Validity of Use of Cellular Telephone or Tower to Track Prospective, Real Time, or
Historical Position of Possessor of Phone Under State Law, 94 A.L.R. 6th 579(2014). The Supreme Court's 2014 decision in Riley v. California, 573 U.S. 373,
134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), made clear the Fourth Amendment does
protect digital information stored on a cell phone. See State v. Brown, 423 S.C. 519,
523-24, 815 S.E.2d 761, 763-64 (2018) (discussing Riley). When Warner murdered
Patel in 2015, however, no South Carolina court—nor any federal court whose
precedent binds our courts—had addressed whether the Fourth Amendment protects
digital information derived from a cell phone but not stored on it, such as CSLI. In
2016, the Fourth Circuit found that it does not. Graham, 824 F.3d at 427.3
According to the Fourth Circuit, "This holding accords with that of every other
federal appellate court that has considered the Fourth Amendment question before
us. Not one has adopted the Defendants' theory." 824 F.3d at 428.
3
This opinion was issued by the Fourth Circuit sitting en banc. 824 F.3d at 424. In
the panel decision—issued August 5, 2015—the Fourth Circuit held "the
government conducts a search under the Fourth Amendment when it obtains and
inspects a cell phone user's historical CSLI for an extended period of time." United
States v. Graham, 796 F.3d 332, 344-45 (4th Cir. 2015). The court granted the
government's petition for rehearing en banc on October 28, 2015, United States v.
Graham, 624 F. App'x 75 (4th Cir. 2015), which vacated the panel decision,
Graham, 824 F.3d at 424; see also 4th Cir. R. 35(c) (en banc proceedings) ("Granting
of rehearing en banc vacates the previous panel judgment and opinion.").
In 2017, therefore, at the time of Warner's trial, it appeared that a person had no
reasonable expectation of privacy in their CSLI held by a cell phone service provider
and the Fourth Amendment did not require a warrant for the seizure of CSLI. The
trial court in this case relied on Graham in finding the Fourth Amendment did not
apply, stating "the search warrant under the Graham case was not needed." Based
on Graham, the trial court found Warner's voluntary use of his cell phone and the
consequent provision of CSLI to the cell phone service provider resulted in the loss
of any expectation of privacy Warner may have otherwise had in the information.
In 2018, however—after Warner's trial and while his appeal was pending at the court
of appeals—the Supreme Court held CSLI is subject to the warrant requirement of
the Fourth Amendment. Carpenter, 585 U.S. at ____, 138 S. Ct. at 2217, 201 L. Ed.
2d at 525. The State had not challenged the trial court's ruling that the warrant was
invalid, Warner, 430 S.C. at 92, 842 S.E.2d at 369, which left for the court of appeals
only the question of whether the exclusionary rule should be applied. The court of
appeals found the exclusionary rule should not apply and affirmed. 430 S.C. at 94,
842 S.E.2d at 370.
At oral argument before this Court, Justices raised difficult questions as to how—if
South Carolina courts do not have authority to issue warrants for the seizure of
records kept in another state—law enforcement may reasonably carry out its
investigative responsibilities in this modern digital age. The answers, though sincere
and realistic, were unsatisfactory. Therefore, and in light of our concerns that the
trial court mistakenly found the warrant invalid, we find it necessary to analyze the
validity of the May 4, 2015 warrant. As our Rules acknowledge, and as this Court
has held many times, we may affirm on any ground appearing in the record. See
Rule 220(c), SCACR ("The appellate court may affirm any ruling . . . upon any
ground[] appearing in the Record on Appeal."); State v. King, 422 S.C. 47, 64 n.5,
810 S.E.2d 18, 27 n.5 (2017) (same); State v. Johnson, 278 S.C. 668, 669-70, 301
S.E.2d 138, 139 (1983) (same). 4
4
Technically, we are not affirming the denial of the motion to suppress. However,
we are deciding the trial court's ruling will not be reversed on the basis that the
warrant sought information stored in another state. If no other basis for reversing
the denial of the motion to suppress arises on remand, then the result of our analysis
of the validity of the warrant in this respect will be that we affirm.
The primary focus of the dispute before the trial court over the validity of this
warrant was whether an Anderson County magistrate had the authority to issue the
warrant to an out-of-state entity for records that are not physically located in this
State. The applicable statute, section 17-13-140 of the South Carolina Code (2014),
provides,
Any magistrate . . .[5] may issue a search warrant to search
for and seize . . . property constituting evidence of crime
or tending to show that a particular person committed a
criminal offense . . . . The property described in this
section, or any part thereof, may be seized from any place
where such property may be located, or from the person,
possession or control of any person who shall be found to
have such property in his possession or under his control.
This warrant was issued to T-Mobile. While we assume for purposes of our analysis
T-Mobile stores the applicable records in New Jersey, 6 the important fact is T-
5
The omitted text contains as many as three additional items in a series, followed
by the limiting language ". . . having jurisdiction over the area where the property
sought is located." § 17-13-140. We find the limiting language applies only to the
last item in the series, not to "Any magistrate," which is the first item in the series.
See Comm'rs of Pub. Works of the City of Laurens v. City of Fountain Inn, 428 S.C.
209, 219-20, 833 S.E.2d 834, 839 (2019) (Few, J., concurring) (explaining that under
the last antecedent doctrine, the absence of a comma after the last item in a series
indicates the modifying clause following the series applies only to the last item in
the series). In addition, to read the limiting language as applying to all items in the
series would contradict—and render superfluous—the language enabling the seizure
of property within the "control of any person," because if all seizures are limited to
property inside the jurisdiction of the individual judge, it would not have been
necessary to alternately authorize the seizure of property was under a person's
control.
6
There is no evidence in the record to support this assumption other than the fact
law enforcement officers were required to submit the warrant to the T-Mobile Law
Enforcement Relations Group, which is located in New Jersey. In fact, the FBI
Special Agent who testified as the State's expert on CSLI—when asked where the
records were stored—did not testify where the records are stored. He stated only
that the records are "generated" in New Jersey, "[New Jersey is] where T-Mobile's
compliance people are, where they generate -- where all the requests go to and they
Mobile clearly does business in South Carolina, in particular, in Anderson County.
T-Mobile, therefore, is subject to the jurisdiction of an Anderson County magistrate.
The warrant sought records reflecting information generated in South Carolina
through the interaction of Warner's cell phone and cell towers in Anderson County.
While the T-Mobile office to which officers were told to send the warrant is located
in New Jersey, section 17-13-140 specifically provides, "The property described in
this section . . . may be seized . . . from the person, possession or control of any
person who shall be found to have such property in his possession or under his
control." T-Mobile is in possession and control of property that section 17-13-140
permits to be seized. T-Mobile is a "person" doing business in Anderson County.
Thus, T-Mobile is subject to the jurisdiction of our courts, and we find it was not
beyond the power of the magistrate to issue the warrant.
Our determination that the warrant was not invalid for the reason relied on by the
trial court raises other questions. Warner argued in his suppression motion, for
example, the affidavit supporting the warrant did not set forth probable cause. We
agree. The affidavit states only, "Information was received through crime stoppers
indicating that Justin Warner is a possible suspect. The informant's information was
corroborated and a record search revealed that Warner has this listed number to him."
While we have recognized—recently—that "[p]robable cause . . . is not a high bar,"
State v. Jones, 435 S.C. 138, 145, 866 S.E.2d 558, 562 (2021) (quoting Kaley v.
United States, 571 U.S. 320, 338, 134 S. Ct. 1090, 1103, 188 L. Ed. 2d 46, 62
(2014)), it is by no means a toothless standard. See Brinegar v. United States, 338
U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949) (stating
probable cause "has come to mean more than bare suspicion: Probable cause exists
where 'the facts and circumstances within . . . [the officers'] knowledge, and of which
they had reasonably trustworthy information, [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that' an offense has been or is being
committed"). The affidavit attached to this warrant provided the magistrate no facts
or circumstances whatsoever; only the conclusory statement that some unnamed
person considered Warner as a suspect based on unprovided information. 7 It is
generate those [records]. The actual records are pulled from the different switches,
but [New Jersey is] where the record is generated from . . . ."
7
The Supreme Court's statement in Kaley, which we quoted in Jones, was made to
support the Supreme Court's continued refusal "to require the use
of adversarial procedures to make probable cause determinations" in grand jury
proceedings. Kaley, 571 U.S. at 338, 134 S. Ct. at 1103, 188 L. Ed. 2d at 62. The
Supreme Court's statement in Brinegar was made in explaining probable cause
inconceivable to us that the magistrate did not require the experienced detective to
supplement the affidavit with sworn testimony, or if the magistrate did not require
it, that the detective did not provide it on his own. It is unclear, however, whether
the information in the affidavit was supplemented before the magistrate issued the
warrant. Because the record on this issue—and perhaps other issues—was never
fully developed during the suppression hearing, we remand to the trial court for a
ruling on any unresolved issues related to Warner's motion to suppress. See State v.
Johnson, 302 S.C. 243, 249, 395 S.E.2d 167, 170 (1990) (finding the affidavit
attached to the search warrant lacked probable cause, but remanding to develop the
existed to support a search incident to a warrantless arrest. Brinegar, 338 U.S. at
170-71, 69 S. Ct. at 1308, 93 L. Ed. at 1888. In Illinois v. Gates, 462 U.S. 213, 103
S. Ct. 2317, 76 L. Ed. 2d 527 (1983), even after abandoning the "two-pronged test"
the Supreme Court previously applied, 62 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed.
2d at 548, the Court addressed a hypothetical basis for a search warrant much like
the situation presented by the affidavit in this case:
Our earlier cases illustrate the limits beyond which a
magistrate may not venture in issuing a warrant. A sworn
statement of an affiant that 'he has cause to suspect and
does believe that' [a crime has been committed] will not
do. An affidavit must provide the magistrate with a
substantial basis for determining the existence of probable
cause, and [a] wholly conclusory statement . . . fail[s] to
meet this requirement. An officer's statement that 'affiants
have received reliable information from a credible person
and do believe' that heroin is stored in a home, is likewise
inadequate. . . . [T]his is a mere conclusory statement that
gives the magistrate virtually no basis at all for making a
judgment regarding probable cause. Sufficient
information must be presented to the magistrate to allow
that official to determine probable cause; his action cannot
be a mere ratification of the bare conclusions of others. In
order to ensure that such an abdication of the magistrate's
duty does not occur, courts must continue to
conscientiously review the sufficiency of affidavits on
which warrants are issued.
62 U.S. at 239, 103 S. Ct. at 2332-33, 76 L. Ed. 2d at 548-49.
record as to whether the affidavit was supplemented; explaining possible results on
remand). If the trial court determines the affidavit was not supplemented, and thus
the warrant lacked probable cause, the trial court should also consider whether the
exclusionary rule should apply.
III. Neil v. Biggers Hearing
Warner also argues the trial court erred by refusing to conduct a hearing to determine
whether Goolsby's identification of Warner in the crime-scene video violated his due
process rights under Biggers. Warner relies on a line of cases decided by the
Supreme Court of the United States in which the Court held that unnecessarily
suggestive police-arranged eyewitness identification procedures violate due process
and, thus, are inadmissible, unless the trial court determines in a hearing that the
identification was nevertheless so reliable that no substantial likelihood of
misidentification exists. See Perry v. New Hampshire, 565 U.S. 228, 237-39, 132
S. Ct. 716, 723-25, 181 L. Ed. 2d 694, 706-07 (2012) (discussing the line of cases
and explaining the Supreme Court "[s]ynthesiz[ed]" them into a two-part test in
Biggers); State v. Liverman, 398 S.C. 130, 138, 727 S.E.2d 422, 426 (2012) (reciting
Biggers test). Under Biggers, the trial court must first determine whether the police
used an "'unnecessarily suggestive' . . . identification procedure[]," State v. Wyatt,
421 S.C. 306, 310, 806 S.E.2d 708, 710 (2017) (citing Biggers, 409 U.S. at 198-99,
93 S. Ct. at 381-82, 34 L. Ed. 2d at 410-11), and second, if so, "whether the out-of-
court identification was nevertheless so reliable that no substantial likelihood of
misidentification existed," 421 S.C. at 311, 806 S.E.2d at 710 (quoting Liverman,
398 S.C. at 138, 727 S.E.2d at 426).
The trial court in this case refused to conduct a Biggers hearing because Goolsby
was not an eyewitness. The court stated, "I don't believe . . . this is a Biggers
situation. You don't have an out-of-court identification [by] an eyewitness." We
agree with the trial court. In every case decided by the Supreme Court or by this
Court under Biggers and the line of cases that led to it, the witness who made the
identification was an eyewitness to the crime itself, a witness who observed the
crime take place in real time. The Supreme Court has given no reason to believe it
would extend the Biggers analysis beyond eyewitnesses, nor has this Court. In
Perry, the Supreme Court prefaced its discussion of the line of cases leading to
Biggers by stating, "Only when evidence 'is so extremely unfair that its admission
violates fundamental conceptions of justice,' have we imposed a constraint tied to
the Due Process Clause." 565 U.S. at 237, 132 S. Ct. at 723, 181 L. Ed. 2d at 706(citations omitted). The dangers of misidentification associated with eyewitness
identification that threaten "fundamental conceptions of justice" are simply not
present in a situation like the one in this case. While we agree with Warner the
detective's question suggested to Goolsby that Warner is the man in the video, we
nevertheless find Warner's due process rights do not require a hearing because
Goolsby was not an eyewitness to the crime, and thus, Biggers does not apply. 8
The trial court did not err in denying Warner a hearing as to Goolsby's identification.
IV. Conclusion
We affirm the trial court's refusal to conduct a hearing under Biggers because
Goolsby was not an eyewitness. As to Warner's motion to suppress CSLI, we find
the warrant was not invalid for the reasons the trial court recited. We remand to the
trial court for further proceedings.
AFFIRMED IN PART AND REMANDED.
BEATTY, C.J., KITTREDGE and JAMES, JJ., concur. HEARN, J.,
dissenting in a separate opinion.
8
Our court of appeals reached the same conclusion in State v. McGee, 408 S.C. 278,
758 S.E.2d 730 (Ct. App. 2014). There, the court found the identification was not
subject to a Biggers analysis because the witness who made the identification "was
not an eyewitness to the crime." 408 S.C. at 286, 758 S.E.2d at 735. In a recent
decision by the Court of Appeals of Maryland on almost identical facts, the court
held the "identification is not governed by the due process analysis in Biggers."
Greene v. State, 229 A.3d 183, 193 (Md. 2020). Before reaching that conclusion,
the Court of Appeals of Maryland conducted a thorough analysis of the same line of
Supreme Court cases discussed above. 229 A.3d at 192-94. After our own thorough
review of decisions on this point nationwide, we are aware of no court that has held
the Biggers analysis extends to witnesses who are not "eyewitnesses."
JUSTICE HEARN: Because I agree with the decision and analysis of the court of
appeals, I respectfully dissent. The court of appeals analyzed this pre-Carpenter
Fourth Amendment violation under the standard set forth in Davis and concluded
the exclusionary rule does not apply, which I believe was the correct approach. See
Davis v. United States, 564 U.S. 229, 241 (2011) (holding searches conducted in
objectively reasonable reliance on binding appellate precedent are not subject to the
exclusionary rule). I would end the matter there and not remand for a hearing. While
I concede that probable cause was raised before the circuit court, the primary focus
of the hearing was the privacy interests impacted by release of cell-site location data,
and the circuit court denied the motion to suppress on that basis alone. I would not
resurrect the probable cause issue now because the exclusionary rule would not serve
any deterrent purpose and even assuming error in the denial of the motion to
suppress, I would hold any error harmless.
The court of appeals found that the purposes of the exclusionary rule would not be
honored in this case, and I agree completely with that determination. Here, the search
warrant was issued under existing law that has since been changed. Compare
Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (holding that a person has
an expectation of privacy in cell phone records held by a third party, thereby
abrogating Graham's extension of Miller to cell-site location information or
"CSLI"), with United States v Graham, 824 F.3d 421, 427 (4th Cir. 2016) (finding
no expectation of privacy in cell phone records held by a third party because of the
third-party doctrine of Miller); United States v. Miller, 425 U.S. 435, 440 (1976)
(holding bank depositor had no Fourth Amendment interest in bank records). While
there is no dispute Carpenter applies retroactively, as the court of appeals correctly
reasoned, applying the exclusionary rule is not called for when the behavior of the
officers was made in either good faith or isolated simple negligence. Here, the
officers were operating under the belief that Warner had no expectation of privacy
in his cell phone records, and at the time, under the persuasive authority of Graham
and the binding authority of Miller, that was true.
As an appellate court, we are required to balance the interests of the exclusionary
rule with the "heavy toll on both the judicial system and society at large." Davis v.
United States, 564 U.S. 229, 237 (2011). The rule was designed to serve as a last
resort to deter officer misconduct and error. Id at 236 and Elkins v. United States,
364 U.S. 206, 217 (1960) (holding the exclusionary rule is "calculated to prevent,
not to repair"). Here, there would be no deterrence of officer misconduct or error in
excluding the evidence because, at the time of the search, officers acted in
compliance with current law. We can neither expect officers to predict future
decisions of appellate courts nor take them to task for their failure to do so.
Therefore, because the deterrent effect of the exclusionary rule would not be served
here, I would not apply it. See State v. Weston, 329 S.C. 287, 293, 494 S.E.2d 801,
804 (1997) (stating "[s]uppression is appropriate in only a few situations"); State v.
Sachs, 264 S.C. 541, 566, 216 S.E.2d 501, 514 (1975) (stating "[t]he exclusionary
rule is harsh medicine," and "[e]xclusion should be applied only where [the purpose
of] deterrence is clearly subserved").
Moreover, even assuming arguendo the circuit court erred in denying the motion to
suppress, any error was harmless. When improper evidence is "merely cumulative"
its admission is harmless beyond a reasonable doubt, and the conviction should not
be reversed. See State v. Haselden, 353 S.C. 190, 197, 577 S.E.2d 445, 449 (2003)
and State v. Baccus, 367 S.C. 41, 55-56, 625 S.E.2d 216, 224 (2006). Here, the CSLI
data was clearly cumulative to a myriad of evidence which tied Warner to this crime:
he was identified on the store's security footage by his probation officer, his birthday
was entered into the store's computer during the fatal check-out, and his palm print
matched one taken from the store's counter. 9 Further, the store's security video also
captured the robber's vehicle at the scene, which closely resembled the same car
Warner drove immediately before his arrest. Once investigators impounded
Warner's vehicle, they found cigar wrappers similar to those purchased during the
robbery and Warner's wallet, which resembled the one in the video of the robbery.
In short, the use of his CSLI data was merely cumulative to other ample evidence,
rendering any error harmless.
For the forgoing reasons, I respectfully dissent.
9
The record reflects that the counter was cleaned approximately forty-five minutes
before the crime. Seven individuals, including Warner, were in the store between the
wiping of the counter and the robbery—five or six of whom approached the counter.
However, it is clear no one besides Warner was involved in the robbery or murder.