Petition for Writ of Certiorari — Ronnie Eugene Fuston, Petitioner v. Oklahoma

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2020

RONNIE EUGENE FUSTON,

Petitioner,

vs.

THE STATE OF OKLAHOMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE OKLAHOMA COURT OF CRIMINAL APPEALS

APPENDIX “D”

Appellant’s Response to Supplemental Brief of

Appellee Regarding Proposition II

Filed September 13, 2019

D-2017-773

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

District Court of Oklahoma County Case Number

; CF-2013-0438

RONNIE EUGENE FUSTON,

FILED

"IN COURT OF CRIMINAL APPEALS

APPELLANT, Mee ATE OF OKLAHOMA

SEP 18 2019

JOHN D. HADDEN

THE STATE OF OKLAHOMA, GLERK

-VSs-

APPELLEE.

APPELLANT’S RESPONSE TO SUPPLEMENTAL BRIEF OF

APPELLEE REGARDING PROPOSITION II

ANDREA DIGILIO MILLER

OBA No. 17019

Attorney At Law

Oklahoma County Public Defender’s Office

320 Robert S. Kerr Avenue, Suite 400

Oklahoma City, Oklahoma 73102

(405) 713-1550

ATTORNEY FOR APPELLANT

September 13, 2019

TABLE OF CONTENTS AND AUTHORITIES

Page

CONTENTS

APPELLANT’S RESPONSE TO SUPPLEMENTAL BRIEF OF APPELLEE

REGARDING PROPOSITION IL..........0..-cccccecseessccceseeverenssecaenscerepeessepeeeeereeaeener 1

CONCLUSION 000.0000. ccccecccccscceccs eee ee eeeseneeeeeeeeeeeeaeee nese ee penee eee ALLA GSESAAE ESSE ena DE CeO DEE 5

CERTIFICATE OF SERVICE. ............cccccsseccasscsssssscccssesecnnnserssneseeseneeepseeaestanes 5

AUTHORITIES

CASES

Minois v. Krull,

480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1978)........:cceessereenneeeneeee 1,2

People v. Edwards,

97 N.Y.S.3d 418 (N.Y. Sup.Ct. 2019)... cceceeeseeesceenstnneneeeeeereeesenssessaaaanonsens 4

Poore v. State,

Case No. F-2017-67 (September 12, 2019) ..........ccecesssseeseceeanerseesensenseetensees 3

State v. Snowden,

_ N.E.3d_, 2019 WL 3381801 oo. cccseesseessretseeesesssreererssensseeceessnseanererseees 4

Zanders v. State,

118 N.E.3d 736 (Ind. 2019) wc ceeeceeecereeeceeseseteeeeeerseseesnnaenuaaeseeeoevensanes 4

CONSTITUTIONS

18 U.S.C. § 2703 0. ..ccecccecesseeeeeneetesensetcsesenneeeseneeseeeenes Ope see beeetenneetenenneseaeeeneeee 1,2

U.S. Comst. Amend, IV... ceccessceseeseseeeereetsaeereeeeneesepeseaeeearecanssescusesaesereesesenees 1

STATUTES

Okla. Stat. tit. 13, § 176.1 Et SOG. ....cceeeceestes tents eeaseseeeneeenensenesesaanneoneneeaes 2,3

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

RONNIE EUGENE FUSTON,

|

Appellant, ) APPELLATE CASE

) NO. D-2017-773

vs. )

)

THE STATE OF OKLAHOMA, ) District Court Case No.

) CF-2013-438

Appellee. )

APPELLANT’S RESPONSE TO SUPPLEMENTAL BRIEF OF APPELLEE

REGARDING PROPOSITION I

Appellee has filed, without objection by Appellant filing a supplemental

brief relating to the Fourth Amendment issue raised in Proposition II of

Appellant’s brief in chief challenging the admission of historic cell tower records

that were obtained by the Oklahoma County District Attorney’s Office without a

warrant but by use of a court order sought pursuant to 18 U.S.C. § 2703.

Appellee’s supplemental brief focuses on non-binding cases from other

jurisdictions where various lower courts have upheld the use of such unlawfully

obtained evidence under the good faith reliance on a statute exception articulated

by the United States Supreme Court in Mlinois v. Krull, 480 U.S. 340, 107 S.Ct.

1160, 94 L.Ed.2d 364 (1978).

It bears noting that the prosecutors in this case never offered a justification

for the warrantless seizure of the cell tower records arguing in its written

response to the motion to suppress only that no court has held that a warrant is

necessary. (O.R. 573-574) At the motion hearing where Judge Elliott denied the

motion to suppress the prosecutors again said nothing about the good faith

exception. In fact, Judge Elliott denied the motion without any ruling on the

facts or the law. (O.R. 8/16/16 Tr. 18) The actual court order is not even in this

record, The State on appeal has failed to address entirely the fact that the good

faith argument was waived by the prosecutor’s failure to assert it or at the very

least admit a copy of the order it now claims was relied on in good faith. The

State bears the burden of proof to show that warrantless searches and seizures

do not violate the Constitution. It is hard to see a way for the State to carry that

burden in this case with no order in the record, no testimony about how the

order was obtained or what the articulable facts averred and no argument at the

district court relating to this issue.

The good faith exception theory advanced by the State ignores a critical

element of that exception to the warrant requirement. Under Krull the reliance

has to be objectively reasonable. Krull, 480 U.S. at 355, 107 S.Ct. at 1170. The

specific provision of the Stored Communications Act relied on to secure a court

order for the historic cell tower records in this case, 18 U.S.C. § 2703 (d), states

in pertinent part, “In the case of a State governmental authority, such a court

order shall not issue if prohibited by the law of such State.” Clearly, Congress

intended that any action by state law enforcement under that provision had to

comply with state law. Okla. Stat. tit. 13, § 176.1 et seq. is known as the

“Security of Communications Act.” Section 176.9 allows for the issuance of court

orders for “wire, oral or electronic communications.” However, the state provision

requires that specific information be given to the court issuing the order.

Furthermore, § 176.9 (C)(1) requires that in order for an ex parte order to issue,

the court must find “[T]here is probable cause for belief that an individual is

committing, has committed or is about to commit a particular offense

enumerated in Section 176.7” and “There is probable cause to believe that

particular communications concerning the offense will be obtained through such

interception.”

Because Oklahoma has a state statute that requires a finding of probable

cause before law enforcement can obtain historic cell tower records, the

Oklahoma District Attorney’s Office’s reliance on the less demanding federal

statute was unreasonable. The Oklahoma Attorney General’s Office has

recognized that “While a state law may not be less restrictive than the federal act,

it may be more restrictive and therefore more protective of individual privacy.”

Question Submitted By The Honorable John Nance, 2000 OK AG 45, { 7. (citation

omitted.) Here, state law requirements for law enforcement to seize electronic

stored communications is more protective than the federal statute.

Because of the applicable state law provision the federal cases Appellee

supplements her argument with are unpersuasive on this issue. Additionally,

the Oklahoma Court of Criminal Appeals recently upheld the warrantless seizure

of cell tower records by federal officials relying on the federal statute in Poore vu.

State, Case No. F-2017-67 (Not For Publication}(September 12, 2019)(Slip Op. at

34-35)(Attachment A). Therefore, any of the supplemental cases wherein a

federal court held that federal law enforcement’s reliance on the Stored

Communications Act are superfluous to the argument of whether the State can

establish that the Oklahoma County District Attorney’s Office’s reliance on the

federal statute was objectively reasonable.

It appears that none of the state cases relied on by Appellee address state

law enforcement’s reliance on the federal statute despite applicable state

statutes. As such, they are also of no avail to Appellee. In State v, Snowden, __

N.E.3d__, 2019 WL 3381801, the Court of Appeals of Ohio applied the good faith

reliance on binding precedent exception to the Carpenter violation. There is no

discussion in Snowden about good faith reliance on a state statute or whether

there was an applicable state statute. People v. Edwards, 97 N.Y.S.3d 418, 422-

423 (N.Y. Sup.Ct. 2019) applies the good faith reliance on a statute exception but

the issue of the effect of a more demanding state statute is not raised or

addressed. Finally, the State’s reliance on Zanders v. State, 118 N.E.3d 736, 744-

745 (Ind. 2019) is misplaced. In Zanders, law enforcement obtained historical

cell tower information from the carrier through an “Emergency Request Form.”

Id. at 739-740. The Supreme Court of Indiana did not decide whether either the

exigent circumstances exception applied or the good faith exception because it

found the admission of the historic cell tower information harmless. Id. at 743.

Zanders did not involve state law enforcement obtaining a court order under the

federal statute.

On the record before the Court the State cannot carry its burden is

showing a good faith reliance on a federal statute justified the warrantless search

and seizure of Mr. Fuston’s historic cell tower records.

CONCLUSION

Based on the above and foregoing arguments and authorities, as well as

those contained in Mr. Fuston’s Brief In Chief and Reply Brief, Appellant asks

this court to grant him a new trial, modify his sentence, or any other relief the

Court deems necessary to meet the ends of justice.

Respectfully submitted,

ROBERT A. RAVITZ

Public Defender of Oklahoma County

La Lf

ANDREA DIGILIO MILLER’(OBA #17019)

Oklahoma County Public Defender's Office

320 Robert S. Kerr Avenue, Suite 400

Oklahoma City, Oklahoma 73102

405/713-1550

ATTORNEY FOR RONNIE FUSTON

CERTIFICATE OF SERVICE

This is to certify that on the date of filing of this instrument, a true and

correct copy of the same was delivered to the Clerk of the Court of Criminal

Appeals with instructions to deliver said copy to the Office of the Attorney

General. A i, AL

ANBREA DIGILIO MILLER