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Florida man appeals 162 year sentence on cellphone privacy grounds

By Zachary Fagenson

MIAMI (Reuters) - Lawyers for a south Florida man serving almost 162 years in prison for his role in a string of armed robberies told a U.S. appeals court that prosecutors had no right to use cell phone location data during his trial and the double life sentence without parole was cruel and unusual punishment.

The American Civil Liberties Union (ACLU) argued that authorities should have had to show probable cause and obtain a search warrant before seeing cellphone records for 22-year-old Quartavious Davis. The case comes as federal circuit and appeals courts around the country have been wrestling with cellphone privacy issues.

"I doubt the average user knows how precise the records are," said ACLU attorney Nathan Freed Wessler during Friday's oral arguments before the 11th Circuit Court of Appeals in Miami. "You can turn off the GPS on a phone ... but that has no effect on the tracking ability of the cell service provider."

During the 2012 trial, prosecutors used location data from cell towers along with testimony from accomplices to help convict Davis of seven armed robberies during a two-month period in 2010.

Assistant U.S. Attorney Roy Altman said Davis had "no reasonable expectation of privacy because (the cell phone location data) were business records."

Davis's conviction came as the United States Supreme Court decided that life sentences without parole for defendants under the age of 18 constituted "cruel and unusual punishment" even in murder cases. Davis had already turned 18 at the time of the crimes.

Davis maintains that he is innocent. He was the only one of the six men charged who went to trial. The others cut plea deals that left them with sentences of nine to 22 years in prison.

"He was a follower in this case," said Davis' lawyer Jacqueline Shapiro.

Davis had a history of learning disorders and mental disabilities, and was diagnosed with bipolar disorder, she added.

The unusually long sentence stemmed from a controversial practice known as "stacking," in which each charge in an indictment is counted as a separate crime. The policy transforms a first-time offender into a "habitual criminal" subject to multiple sentences and mandatory sentencing guidelines.

The district court judge said if he had been able to make the decision himself, "he would have given him 40 years with parole," said Shapiro.

Since 2003 the Justice Department has discouraged prosecutors from stacking in cases where it can lead to excessive sentences.

(Editing by David Adams and David Gregorio)

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