FREEPORT — The Maine Supreme Judicial Court wrestled with rules for accessing data on cellphones Thursday before a roomful of teenagers who possibly knew more about the technology than the justices do.
The court heard oral arguments at Freeport High School as part of a program in which the justices hear appeals at high schools, showcasing for students how the judicial branch of government operates.
Thursday’s prime case concerned a Rangeley burglary suspect who was arrested after police asked a cellphone company where his phone was located. The suspect, Kevin O’Donnell, and his girlfriend, Danielle Nelson, were found at a motel in Lewiston, based on the location data.
Rangeley police said they didn’t seek a warrant for the information on the location of the phones because the stolen items included guns and they were concerned for the safety of police if they encountered O’Donnell.
O’Donnell eventually pleaded guilty, but his lawyer, Adam Sherman, appealed because a trial judge had refused to rule out evidence found when O’Donnell was arrested, including some of the items stolen from the house in Rangeley. Sherman argued that the location of O’Donnell and Nelson was obtained improperly, and the evidence they seized at the site of his arrest should have been ruled inadmissible in a trial.
The justices seemed troubled by that argument. They noted that if the content of a cellphone is seized improperly, it can’t be used in a trial, but lawmakers have provided no such remedy for data, including location data, that is improperly obtained from a cellphone. Sherman said the only remedy under state law is a civil suit, and lawyers are unlikely to take a case that almost certainly wouldn’t result in a monetary judgment for a man eventually convicted of burglary. But, he said, there ought to be some impact when the data is part of a criminal case.
“A person should have a reasonable expectation of privacy in location data,” Sherman told the justices.
And, he said, the cellphone company collects the data on its own, not after the phone user agrees the location data should be shared.
They “reached out and touched my client,” he said.
The oral arguments did not deal with a second part of Sherman’s appeal, in which he argued that police searched O’Donnell’s home improperly after permission was given by Nelson. He said Nelson wasn’t a resident of the house, so police shouldn’t have relied on her go-ahead to go through the house and any evidence seized there should have been tossed out of the case.
The Supreme Court typically issues a ruling on a case months after it hears oral arguments.
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