Killer says DA’s use of cellphone records invaded his privacy

By Cy Ryan

Wednesday, Sept. 12, 2012 | 7 p.m.

The Nevada Supreme Court has been asked to decide if the use of cellphone records to help convict a man in a Clark County murder case was an invasion of his constitutional right to privacy.

Defense attorney JoNell Thomas argued that Valentin Zuniga had a reasonable expectation of privacy from the government tracking his locations near the crime scene through the cellphone records.

But Michelle Fleck, chief deputy district attorney of Clark County, argued the cellphone records belong to the company not the individual. And there was no prejudice in introducing them at trial.

Zuniga was convicted of first-degree murder in the fatal shooting of his former friend Julian Roman in his home in September 2009 in North Las Vegas. Zuniga was 18 at the time of the killing and was sentenced to life in prison without parole plus consecutive sentences totaling 12-26 years.

Fleck told the court the cell records were only a small amount of the evidence used to convict Zuniga. Even if that evidence was excluded, it would end up in the same result, she said.

Thomas said using the cellphone records was intrusive and it was like Big Brother tracking an individual's every movement.

Detectives got permission to examine the cell records of Zuniga. And they were able to show that Zuniga was in the neighborhood at the time Roman was shot to death.

Thomas says the Fourth Amendment safeguards the privacy and security of individuals against arbitrary invasions by government officials.

In her brief to the court she said, "Individuals have a reasonable expectation of privacy in their location and movement information, which can reveal intimate details of their lives, such as their presence in their home or office but also their doctors' visits, shopping habits, attendance at church, and association with others."

Fleck said there was no invasion of privacy of the home or other locations. But this individual was on a public highway receiving and making calls. And his location was determined through information from the cellphone towers.

Zuniga told a cellmate before the trial that his girlfriend wanted Roman killed because he tried to rape her. The prosecution says he rented a gun, went to the house, knocked on the door and then shot the victim several times.

Thomas claims there were other errors made by the district court and the conviction should be overturned.

The panel of the court took the arguments under submission and will rule later.