COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Alston and O’Brien UNPUBLISHED
Argued at Alexandria, Virginia
TOBIAS OGBANNA REED MEMORANDUM OPINION BY v. Record No. 1305-15-4 JUDGE ROSSIE D. ALSTON, JR. AUGUST 30, 2016 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler, Judge
Marvin D. Miller (Bret D. Lee; Law Offices of Marvin D. Miller, on briefs), for appellant.
Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General; Victoria Johnson, Assistant Attorney General, on brief), for appellee.
Tobias Ogbanna Reed (appellant) appeals his conviction for distribution of cocaine after
having previously been convicted of two or more felony offenses under Code § 18.2-248(C).
Stated succinctly, appellant argues in his nine assignments of error that the trial court erred in
denying his motion to suppress and motion to quash cell phone evidence obtained through an ex
parte order and a subpoena duces tecum. We affirm the decision of the trial court.
I. Background
In the summer of 2011, appellant, who was facing federal charges at the time, received
permission to work as a confidential informant with Detective Benjamin George of the
Alexandria Police Department’s Vice/Narcotics Unit. On July 18, 2012, around 7:15 p.m.,
Fernando Payne purchased cocaine from appellant on behalf of undercover Detective John East
Pursuant to Code § 17.1-413, this opinion is not designated for publication. of the same Vice/Narcotics Unit (Payne did not know that Detective East was a law enforcement
officer at the time of the purchase). Detective George was assisting in the drug buy organized by
Detective East through Payne, and during the drug buy, he identified appellant as the only person
in a vehicle Payne entered and then quickly exited before returning to Detective East with the
cocaine. Appellant was not authorized to be involved in any drug buys outside of those
organized by Detective George.
On August 3, 2012, Detective East applied for an ex parte court order pursuant to Code
§§ 19.2-61 and 19.2-70.31 and 18 U.S.C. § 2703,2 stating that electronic communication records
1 Code § 19.2-70.3 is Virginia’s companion statute to 18 U.S.C. § 2703 and provides in relevant part:
A. A provider of electronic communication service or remote computing service, which, for purposes of subdivisions 2, 3, and 4, includes a foreign corporation that provides such services, shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications and real-time location data, to an investigative or law-enforcement officer only pursuant to:
....
3. A court order issued by a circuit court for such disclosure issued as provided in subsection B;
B. A court shall issue an order for disclosure under this section only if the investigative or law-enforcement officer shows that there is reason to believe the records or other information sought are relevant and material to an ongoing criminal investigation. 2 18 U.S.C. § 2703, required disclosure of customer communications or records, provides the same standard for obtaining records concerning electronic communication service (with different requirements to obtain the contents of those communications) as Code § 19.2-70.3. (A court order “shall issue only if the governmental entity offers specific and articulable facts
-2- related to a cell phone number known to be associated with appellant were “relevant and material
to this ongoing criminal investigation.” Detective East’s statement in support of the application
further provided that he developed probable cause to believe that the phone number associated
with appellant “is associated with the suspect or other person who can aid the investigation.” In
the application, Detective East cited the following facts establishing probable cause: His
experience conducting drug buys from Payne; that on July 18, 2012, Detective East provided
Payne with recorded money to make a purchase and that Payne left his cell phone with Detective
East when he went to purchase the drugs and told Detective East that if his phone rang and “it
says ‘Tobias’ that’s my man. Pick up and tell him I’m coming.” The application also included
the fact that Detective George recognized appellant in the car Payne approached from his
previous experience working with him as a confidential informant. The ex parte order was
granted and served by fax to Verizon at its offices in New Jersey directing Verizon to provide
appellant’s cell phone records for the period from May 1, 2012 through October 3, 2012.
Verizon produced the requested records to the Commonwealth, including real-time GPS location
data for the phone during the requested time period.
On August 16, 2012, a state arrest warrant was issued for appellant, charging him with
one count of distribution of cocaine arising from his involvement in Payne’s drug buy on July
18, 2012. On August 17, 2012, appellant was sentenced by a federal court to 24 months’
incarceration for violating his supervised release because of a conviction in Fairfax County, and
appellant was immediately taken into federal custody. Though Alexandria law enforcement
apparently knew that appellant was being held in the local jail at that time, it did not serve him
showing that there are reasonable grounds to believe . . . the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).)
-3- with the arrest warrant, and in September 2012, appellant was transferred to the Federal
Correctional Institution in Butner, North Carolina (FCI Butner).
On June 5, 2014, appellant was released from FCI Butner and immediately served with
the state arrest warrant by Alexandria police as he walked out of the federal prison facility.
Appellant was taken into state custody and transported back to Virginia, and on July 14, 2014, he
was indicted on the charge he now appeals; one count of distribution of cocaine after having
previously been convicted of two or more felony offenses under Code § 18.2-248(C).
The Commonwealth filed a request for issuance of a subpoena duces tecum on January 7,
2015 for all detail records pertaining to two cell phone numbers, one of which was a number
known to be used by appellant. The request for the subpoena duces tecum sought records from
Verizon “pertaining to electronic communication and files” for July through August 2012, to
include cell site data, text message data (but not the contents of the messages), and incoming and
outgoing detail records.3 The subpoena duces tecum was issued to Verizon at Cellco Partnership
in Bedminster, New Jersey, apparently at the request of Verizon, rather than issued to the
Verizon offices in Virginia.
Appellant moved to quash the subpoena deuces tecum on January 13, 2015, arguing that
the request was overly broad in requesting all call records for July and August, including cell site
records and text message details (but not the content of the texts). Appellant further argued that
3 The call records requested in the application for the subpoena duces tecum were the same call records already obtained by the Commonwealth from Verizon in response to the 2011 ex parte order. According to the Commonwealth, Verizon requested a subpoena in 2015 for internal purposes to authorize it to have a local records custodian pull the records and attend appellant’s trial to authenticate the records.
-4- the subpoena duces tecum did not comply with Rule 3A:124 or Code § 19.2-277,5 and violated
the Electronic Communications Privacy Act (also known as the Stored Communications Act
(SCA)), 18 U.S.C. § 2701 et seq. The Commonwealth filed an opposition memo to appellant’s
motion to quash the subpoena duces tecum, arguing that the request complied with all relevant
rules and statutes. The Commonwealth also stated that it needed the records to rebut appellant’s
expected alibi defense, to show that calls between appellant and Detective George, and appellant
and Payne, occurred and were relevant and material to prove the drug transaction between
appellant and Payne.
4 Rule 3A:12. Subpoena, provides in relevant part:
(b) For Production of Documentary Evidence and of Objects Before a Circuit Court. - Upon notice to the adverse party and on affidavit by the party applying for the subpoena that the requested writings or objects are material to the proceedings and are in the possession of a person not a party to the action, the judge or the clerk may issue a subpoena duces tecum for the production of writings or objects described in the subpoena. . . .
(c) Service and Return. A subpoena may be executed anywhere in the State by an officer authorized by law to execute the subpoena in the place where it is executed. The officer executing a subpoena shall make return thereof to the court named in the subpoena. 5 Code § 19.2-277 “Summoning witnesses in another state to testify in this Commonwealth” provides:
If a person in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions . . . commenced . . . in this Commonwealth is a material witness in a prosecution pending in a court of record in this Commonwealth, . . . a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. . . . This certificate shall be presented to a judge of a court of record in the county in which the witness is found.
-5- On February 2, 2015, appellant next filed a combined motion to suppress and supplement
to motion to quash, arguing that the evidence obtained as a result of the ex parte order should be
suppressed because it was wrongfully obtained in violation of appellant’s constitutional and
statutory rights because it was overly broad, issued without the required factual showings, and
illegally served outside of the Commonwealth. The Commonwealth’s response on February 4,
2015, provided further factual basis for the subpoena duces tecum and argued that Verizon
requested the subpoena to ensure that the individual sent to testify at the appellant’s trial as
records’ custodian could state that he personally accessed the records and that they were true
reproductions. The Commonwealth further argued that Verizon requested the subpoena duces
tecum be delivered at its central address in New Jersey. At the hearing on February 12, 2015,
regarding pre-trial motions to suppress records received in response to the ex parte order and
subpoena duces tecum, the Commonwealth stated that it only intended to introduce at trial the
historical records of calls made by appellant, not any real-time location/“pinging” data.6 The
trial court determined that the subpoena duces tecum should be narrowed to two days before and
after July 18, 2012, when the events at issue occurred. The trial court denied appellant’s
constitutionally-based motions to suppress the records obtained in response to the ex parte order
6 Cell phones, even when simply in the “on-mode” and not being used to make or receive phone calls or text messages, are constantly sending out signals or “pings” that are picked up by nearby cell towers. Rescue and law enforcement authorities can determine the pinged cell phone user’s actual physical location when they cross-compare the phone ping’s distance from a number of different transmission towers. The most common method for determining a cell phone’s location to a “fair degree of precision” is triangulation. Alexandra Wells, Ping! The Admissibility of Cellular Records to Track Criminal Defendants, St. Louis U. Pub. L. Rev. 487, 492 (2014). This technique is especially valuable when attempting to retrace the previous whereabouts of a prime criminal suspect. Law enforcement can, as it did in this case, use historical cell phone records reflecting cell towers the suspect’s cell phone pinged at the relevant time and maps of the service provider’s cell towers in the relevant area to place a suspect in a particular geographical area at a particular time. However, the weight and accuracy of these archived records are questionable since cell signals go to the tower with the strongest signal, not necessarily the cell tower geographically closest to the cell phone. Id. at 492-93.
-6- and refused to quash the subpoena duces tecum. Specifically, the trial court found no
constitutional issue with respect to service of the subpoena duces tecum on Verizon’s office in
New Jersey and noted that Verizon asked for subpoenas to be served by fax at that location. The
trial court also found that appellant did not have standing “with respect to the subpoena duces
tecum.”
At appellant’s bench trial on March 2, 2015, Detective East and Detective George both
testified as to their histories with Payne and appellant, respectively, as well as their observations
of Payne and appellant’s actions on July 18, 2012. Next, Avram Polinski, custodian of records
for Verizon Wireless, testified regarding the records provided in response to the subpoena duces
tecum. Mr. Polinski testified as to the records for two phone numbers: 571-329-7478 and
703-XXX-XXXX. Mr. Polinski testified that the subscriber listed for the 571 number was
Taadow Turner.
Counsel for appellant objected to the relevance of the records for the 571 number because
the phone belonged to a third party and no evidence was offered as to why the records were
relevant. However, Detective George previously testified that the 571 number in question was
known to him as appellant’s phone number. Appellant’s counsel argued that the remaining
information was irrelevant because the Commonwealth could not show that the records were all
related to appellant. The Commonwealth stated that it only intended to introduce information
from July 18, 2012, the date that appellant was known to be using the phone. After considering
the arguments of counsel, the trial court overruled appellant’s objection.
Mr. Polinski then authenticated the Verizon records, which were admitted into evidence.
The historical records introduced by the Commonwealth displayed incoming and outgoing call
information for each of the two phone numbers, the duration of the calls, the towers through
which calls were routed, and the “face” of the tower through which the call was routed, which -7- Mr. Polinski explained reflected approximately from which direction of the tower the signal
pinged. There was no evidence presented regarding the substance of the calls. In addition to the
records specific to the phone number associated with appellant, Verizon produced a map of the
cell towers in the relevant area of Alexandria on July 18, 2012. According to the testimony
presented, by using the cell tower identification information in the phone records and the map of
towers, law enforcement was able to approximately place whoever had the phone in the general
area of where the drug buy took place between Payne and appellant. The records did not,
however, identify who possessed the phone at the time of the calls, nor did they provide a
specific location for where appellant or Payne was located.
At the conclusion of the bench trial, the court found appellant guilty of distribution of a
controlled substance, third or subsequent offense. In its factual findings, the trial court stated
that it found persuasive Detective George’s identification of appellant as the person in the car in
which Payne apparently obtained the cocaine, along with the cell phone records corroborating
the phone numbers used by appellant and Payne and calls between them. The trial court also
found letters written by appellant while incarcerated indicative of his guilt. On June 2, 2015, the
trial court sentenced appellant to eleven years’ incarceration with one year suspended. This
appeal followed.
II. Analysis
Appellant asserts nine assignments of error, which combined present four core issues
related to both the ex parte order and the subpoena duces tecum. First, appellant contends that
the trial court erred in serving the ex parte order and the subpoena duces tecum on Verizon by
fax to its New Jersey office because the trial court had no jurisdiction to do so and that doing so
violated the Stored Wire and Electronic Communication’s Act, 18 U.S.C. § 2701 et seq.,
Virginia’s companion statute, Code § 19.2-70.3, and Rule 3A:12. Second, appellant asserts that -8- the trial court erred in issuing the ex parte order and the subpoena duces tecum, because they
were based on the same insufficient factual predicate and included an overly broad timeframe,
involving months of records irrelevant to the day of the drug buy in question. Third, appellant
also argues that the trial court violated his Fourth Amendment rights by ordering a foreign
corporation to produce cell phone records, including real-time GPS location data, without
requiring a warrant. Finally, appellant argues that the trial court erred by holding that he did not
have standing to object to the issuance of the subpoena duces tecum. Because we find the
standing issue dispositive of several assignments of error, we will begin our analysis there.
A. Appellant lacks standing to move to quash the subpoena duces tecum.
Though presented as combined motions to suppress the cell phone records acquired
through the ex parte order and to quash the subpoena duces tecum, the same records were
produced in response to both the order and the subpoena. The records admitted at trial were the
records the Verizon records custodian retrieved and testified to in response to the subpoena duces
tecum, not the ex parte order. Therefore, because we agree with the trial court that appellant had
no standing to move to quash the subpoena duces tecum on the particular grounds that he did, we
need not separately address appellant’s objections to the ex parte order.
The trial court had the authority to issue the subpoena duces tecum pursuant to Rule
3A:12, which provides that circuit courts “[u]pon notice to the adverse party and on affidavit by
the party applying for the subpoena that the requested writings are material to the proceedings
. . . may issue a subpoena duces tecum for the production of writings.” Subsection c provides
that a “subpoena may be executed anywhere in the State by an officer authorized by law to
execute the subpoena in the place where it is executed.” In compliance with subsection b, the
affidavit filed with the request for the subpoena duces tecum stated that the assistant
-9- Commonwealth’s Attorney believed the records related to the two phone numbers were “material
to the proceeding and . . . in possession of the Records Custodian for Verizon Wireless.”
Appellant first asserts that the trial court improperly and ineffectively served the
subpoena duces tecum on Verizon by facsimile to Verizon’s New Jersey offices. In this regard,
appellant essentially puts the cart before the horse. To reach this issue, appellant must first have
standing to contest the propriety and effectiveness of the service of the subpoena duces tecum.
To this end, appellant falls short. In the context of this case, appellant does not have standing to
raise an objection to the method and place of service on Verizon. Standing to do so rests solely
with Verizon. See Code § 8.01-277 (“A person, upon whom process to answer any action has
been served, may take advantage of any defect in the issuance, service or return thereof by a
motion to quash filed prior to or simultaneously with the filing of any pleading to the merits.”
(emphasis added)). Verizon never objected to the method of service of the subpoena duces
tecum and in fact requested service by facsimile at its New Jersey offices.
Moreover, by accepting service of the subpoena duces tecum, willingly producing the
requested records, and sending a custodian of records to testify at appellant’s trial, Verizon
waived any objection to the method of service of the subpoena duces tecum that it may have had.
See Lyren v. Ohr, 271 Va. 155, 159, 623 S.E.2d 883, 885 (2006) (“A general appearance ‘is a
waiver of process, equivalent to personal service of process, and confers jurisdiction of the
person on the court.’” (quoting Gilpin v. Joyce, 257 Va. 579, 581, 515 S.E.2d 124, 125 (1999))).
Appellant argues that the Commonwealth must have issued and served the subpoena duces tecum
pursuant to the Uniform Act to Secure the Attendance of Witnesses from without a State in
Criminal Proceedings, Code §§ 19.2-272 through 19.2-282. However, Verizon’s voluntary
acceptance of and compliance with the subpoena duces tecum negated the need for the
Commonwealth to compel Verizon’s compliance through the Uniform Act. See Davis v. - 10 - Hackney, 196 Va. 651, 655, 85 S.E.2d 245, 247 (1955) (out-of-state witness in a criminal trial
who accepted service of a subpoena and appeared in Virginia to testify willingly “dispensed
with” the procedures provided in the Uniform Act and “placed [the witness] in the same position
as if the process had been duly served upon him”).
Thus, the subpoena duces tecum was issued in accordance with all applicable laws and
appellant has no standing to move to quash the subpoena based on the method and location of
service.7
B. The records admitted at trial were material and relevant.
Appellant also challenges the materiality of the subpoena duces tecum by arguing that the
factual basis for the subpoena, along with the timeframe and scope of the historical and real-time
location data requested was insufficient and the records were immaterial. While again there is
some question as to the facility from a standing perspective for appellant to challenge the
material released by Verizon, to the extent that there may have been any error in the scope of the
records subpoenaed, or some constitutional basis for appellant to challenge the materials
released, we find that any such error was corrected by the trial court.
7 Appellant cited Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 289 Va. 426, 770 S.E.2d 440 (2015), numerous times in support of his argument that the trial court lacked jurisdiction to serve a subpoena duces tecum or ex parte court order pursuant to the Stored Communications Act against a non-party by facsimile out-of-state. Yelp, however, is inapposite to this case. In Yelp, the issue before the Supreme Court was a trial court’s authority to enforce compliance with a subpoena duces tecum against an out-of-state non-party for out-of-state records simply because it was registered to do business in Virginia. First, Yelp challenged the circuit court’s authority and method of service whereas in the present case, Verizon willingly complied with the subpoena duces tecum and ex parte order, and even requested the method and location of service. Second, though the Supreme Court held in Yelp that the circuit court did not have such enforcement authority, it did not hold that the circuit court did not have the authority to issue the subpoena duces tecum. In fact, it declined to quash the subpoena duces tecum at issue, noting that there were other statutory mechanisms through which the records Hadeed sought could be lawfully subpoenaed. Id. at 439 n.19, 770 S.E.2d at 446 n.19. For these reasons, Yelp is inapplicable to the issues presented in this case.
- 11 - First, the factual basis for the records requested was sufficient and the standard for
materiality required by Rule 3A:12 was met. In compliance with subsection b, the affidavit filed
with the request for the subpoena duces tecum stated that the assistant Commonwealth’s
Attorney believed the records related to the two phone numbers were “material to the proceeding
and . . . in possession of the Records Custodian for Verizon Wireless.” Additionally, the
historical call records for a phone number known by Detective George to be associated with
appellant for a four-hour window of time during which appellant was allegedly involved in a
drug buy with a known drug dealer and during which time appellant was alleged to have called
Payne, were clearly relevant to the Commonwealth’s case against appellant. The records
corroborated Detective George’s identification of appellant by placing him in the general area of
the drug buy, and connected him to Payne through phone calls between the two phone numbers
at the time relevant to the drug buy. Therefore, the records – at least for July 18, 2012 - were
relevant and material to the case against appellant.
C. Any error regarding the timeframe and scope of the records subpoenaed was corrected by limitation of the evidence admitted at trial.
Appellant raises numerous arguments regarding the scope of the records requested by the
Commonwealth and produced by Verizon; however, appellant fails to consider that the only
records introduced at trial were historical call records for the 571 number and a 703 number
known to be used by Payne, from approximately 4:00 p.m. to 8:00 p.m. on July 18, 2012. At the
beginning of the hearing on the motion to suppress, the Commonwealth stated that it only
intended to use historical records of calls made by appellant at trial, and not any real-time
location or “pinging” data. At the conclusion of the hearing on the motion to suppress, the
parties and trial court agreed to narrow the timeframe for relevant call records to two days before
and after July 18, 2012. At trial, the Commonwealth presented an even further narrowed subset
- 12 - of call records specific to the time of the drug buy and the surrounding few hours. Thus, though
location data was obtained along with the historical call record data for a much greater span of
time, the evidence actually admitted against appellant was ultimately narrowed in time and
substance. For this reason, we will not assess whether or not the trial court erred by ordering
Verizon to provide several months’ worth of historical cell phone records and real-time GPS
surveillance of appellant without requiring a warrant, because any remedy appellant may have
had as a result of any such error was corrected by the fact that only historical cell phone records
from the relevant time and date of the drug buy were admitted at trial.
For the foregoing reasons, we find no error in the trial court’s issuance of the subpoena
duces tecum or its denial of appellant’s motion to suppress and motion to quash.
Affirmed.
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