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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe 7th Circuit Court of Appeals affirmed a man’s conviction and sentence Thursday for conspiracy to commit robbery, finding the denial of his motion to change venue and suppress evidence was not erroneous.
In July 2015, Lawrence Adkinson and others robbed a T-Mobile phone store in Clarksville, Indiana, and then a Verizon store in Kentucky. With handguns drawn, they stole approximately 100 cell phones and other items. They later robbed nine additional stores, including three more T-Mobile stores.
Upon its investigation of the robberies, T-Mobile pulled data from cell sites near the first two victim stores to identify which phones had connected to them and were close to the crimes. From these “tower dumps,” T-Mobile determined that only one T-Mobile phone was near both robberies and that Adkinson was an authorized user on that phone’s account.
T-Mobile voluntarily gave the cell-site location information to the FBI, which then used it to obtain a court order under the Stored Communications Act, 18 U.S.C. § 2703, granting the FBI access to additional cell-site data.
Before his trial, Adkinson moved to suppress “any and all evidence obtained through cellphone records and/or triangulation of cellphone numbers,” arguing the government obtained it without a warrant in violation of the Fourth Amendment. During voir dire, he also moved to transfer the case to a venue with “a better pool of African Americans.” Both motions were denied, first finding T-Mobile was not a governmental agent and then that the venue motion was “extremely untimely.”
The 7th Circuit Court similarly rejected his arguments on appeal. It first found that federal law authorized the government to prosecute Adkinson in the district where he offended and that he had an opportunity to tease out any potential juror bias during voir dire.
“The district court did not abuse its discretion in denying Adkinson’s motion because, regardless of his arguments regarding the emerging science on implicit bias, the Constitution does not entitle a defendant to a venire of any particular racial makeup,” the per curium order stated. “Adkinson’s attempt to create a presumption of implicit racial bias based on the racial composition of the jury venire fails. To the extent Adkinson subjectively worried about implicit bias, voir dire was the appropriate vehicle to address it.”
It further noted that Adkinson’s motion was a month late and offered no reason for his tardiness or failure to comply with the district court’s pretrial scheduling order.
Addressing his second argument, the 7th Circuit found that Adkinson’s Fourth Amendment rights were not violated when the district court denied his motion to suppress the cell-site data that T-Mobile collected.
“First, T-Mobile is a private party, and Adkinson has not shown that it was the government’s agent. … Second, regardless of agency, Adkinson’s Fourth Amendment rights were still not violated because Adkinson consented to T-Mobile collecting and sharing his cell-site information. … Third, (Carpenter v. United States, 138 S. Ct. 2206 (2018)) itself does not help Adkinson,” the per curium order said. “The case did not invalidate warrantless tower dumps which identified phones near one location (the victim stores) at one time (during the robberies) because the Supreme Court declined to rule that these dumps were searches requiring warrants.”
“Finally, even if Adkinson sought to challenge the cell-site location data that the government later collected through the order it obtained under the Stored Communications Act, the challenge would be meritless,” the panel concluded. “Adkinson did not challenge the admission of such data below and cannot do so now.”
The case is USA v. Lawrence D. Adkinson, 17-3381.
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