When you call someone on your cell phone, who owns the ping data that can show where you were when you placed the call?
Does the phone operator own that data? Or does the provider own it?
The question surfaced Monday during a murder hearing dating back to the 2014 shooting death of Dustin Cecil McKinney in north Shawnee County. Who owns that data could be important to murder defendant Anthony Rocky Guerrero II. Thursday will be the third anniversary of McKinney’s death.
On Monday, Guerrero’s defense attorney James Spies wanted a Shawnee County District Court judge to suppress cell phone ping evidence showing his phone was in the vicinity of McKinney’s home when McKinney was fatally shot there.
Senior assistant district attorney Matt Patterson argued Monday against the Guerrero suppression motion.
District Court Judge Nancy Parrish said she would rule as soon as possible on whether to suppress that evidence or to allow it into the trial of Guerrero. The trial is set to begin Nov. 14.
Guerrero, 31, of Topeka, is charged with felony first-degree murder in McKinney’s shooting death, two counts of aggravated robbery and one count each of aggravated burglary and conspiracy to commit burglary, according to court records.
Guerrero is charged in the Nov. 2, 2014, shooting death of McKinney at 734 N.W. 62nd. Investigators found two large safes that contained $43,140 in cash as well as marijuana, witnesses testified in other cases tied to the slaying. A witness earlier testified that McKinney sold marijuana.
In September, Spies filed the motion to suppress the ping evidence.
In that motion, Spies said that cell-site location information (CSLI) obtained from cell tower mapping indicated Guerrero’s cell phone was pinging off a cell tower north of the Kansas River on US-75 when the murder occurred.
But Guerrero said he wasn’t north of the river at that time and was at home, Spies said in the suppression motion.
CSLI is the record of a cell phone when it connects with a particular cell service tower and can show whether a specific phone is within range of a particular cell service tower and the time the cell phone pings off that tower, Spies wrote.
But acquisition of cell-site location data without probable cause or a warrant violated Guerrero’s Fourth Amendment right against unlawful searches and seizures, Spies contended in suppression motion. Investigators “failed to obtain a warrant for the CSLI they were seeking. They simply stated they were investigating a murder,” Spies wrote.
Spies said acquiring cell-site location data without a warrant constitutes an illegal search, according to Kansas law. Investigators didn’t have probable cause or request a warrant to obtain CSLI from the service provider for Guerrero’s cell phone, Spies said.
CSLI also was unlawfully obtained due to a failure to state specific and articulable facts to show reasonable suspicion as required by a federal statute, Spies said.
In a written response filed Oct. 23, Patterson fired back that investigators obtained the cell site location data by using an inquisition subpoena issued to Sprint Corporation.
Patterson also said the cell site location information was “historical location data” and not a “real time” or “ping” of the defendant’s phone.
“There was no physical trespass of the defendant’s actual phone nor was the content of any of the defendant’s communications disclosed,” Patterson wrote.
Guerrero “lacks standing to challenge the procurement of these records from a third party business,” Patterson contended. Guerrero “hasn’t affirmatively asserted that he is either the owner of the records or electronic data or possesses a legally cognizable expectation of privacy in the records data,” Patterson said.
Guerrero doesn’t have an expectation of privacy in records held by a third party business, Patterson said, citing cases from Texas and North Carolina.
On Sunday afternoon, Spies electronically filed a memo to support his motion to suppress evidence.
In it, he responded to the use of an inquisition subpoena that Patterson said had been obtained by investigators seeking the ping data.
“The affidavit in support of request for inquisition subpoena is incredibly vague,” Spies said of the four-sentence affidavit.
“This short statement is so severely lacking to be considered sufficient to show probable cause for the information that was obtained by (the sheriff’s office),” Spies wrote. “This statement was in a request for (an) inquisition subpoena rather than a warrant, as required by Kansas law.”
On Monday, sheriff’s Sgt. Glenn Hawks testified that Guerrero’s hands weren’t cuffed when he was twice questioned as a witness, not a suspect, in November 2014 shortly after McKinney’s shooting death. But on March 16, 2017, his hands were cuffed when a sheriff’s detective questioned him, Hawks testified. Guerrero was in court a day later for a first appearance on charges including murder.
Other defendants in the McKinney slaying are:
— Jorge A. Ramirez-Belmontes, 28, is charged with first-degree murder, two counts of aggravated robbery, and one count each of aggravated burglary and conspiracy to commit a burglary. He is to be arraigned Dec. 14.
— Jonathan Emil Maldonado-Vasquez, 39, who suffered a gunshot wound to the right bicep during the home invasion, pleaded no contest to voluntary manslaughter and aggravated robbery. He was sentenced to prison terms that totalled 13 years and five months.
— Angel Gabriel Olavarria-Velez, 26, was acquitted March 17 of premeditated first-degree murder and an alternative charge of felony first-degree murder, two counts of aggravated robbery, aggravated burglary, and four misdemeanor counts of criminal restraint.
Olavarria-Velez pleaded guilty to a misdemeanor charge of intimidation of a witness and felony interference with law enforcement.
— In April 2016, the body of a man — Julio Antonio Olavarria-Velez, brother of Angel — was found in an abandoned structure in Puerto Rico, the victim of a slaying. Julio Olavarria-Velez first was arrested on a warrant in late 2014 charging him with obstructing apprehension of prosecution, but the case was dismissed without prejudice in February 2015.
Homicide database for Topeka, Shawnee County
Contact reporter Steve Fry at (785) 295-1206 or @TCJCourtsNCrime on Twitter.
