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Mar 24, 6:07 PM EDT

Man charged in lesbian custody case slams cell bill evidence



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BUFFALO, N.Y (AP) -- A businessman's cellphone bills showing where he was when he placed calls emerged Tuesday as central to charges he aided a woman who renounced being a lesbian and fled with her daughter during a custody dispute.

Attorneys for Philip Zodhiates of Virginia argued in federal court that the bills shouldn't be allowed at trial because the government did not have a search warrant for them.

The conservative businessman is charged with conspiracy and international parental kidnapping for allegedly helping Lisa Miller take her daughter Isabella out of the country in 2009 to avoid losing custody to her former partner, Janet Jenkins.

Miller and Jenkins broke off their civil union in Vermont in 2003 and Miller came to believe that her lesbian relationship was sinful, according to court documents. Miller was on the verge of losing custody of their daughter for refusing to let Jenkins visit when she fled in 2009.

Zodhiates, owner of Waynesboro, Virginia-based Response Unlimited, is accused of helping Miller travel from Virginia to Canada by way of western New York. From Canada, prosecutors said Miller flew with her daughter to Nicaragua, where they were sheltered by Mennonite missionaries and remain today. Isabella is now 12 years old.

The cellphone bills from provider nTelos were instrumental in the 2012 conviction of another defendant, Kenneth Miller, who is not related to Lisa Miller. Authorities obtained the bills in response to a grand jury subpoena demanding records of calls made around the time Lisa Miller allegedly fled.

Zodhiates' attorney said the subpoena covered things like numbers called and call lengths, but that location information would have required a warrant.

"They took the shortcut and now they can't use the evidence," attorney Robert Hemley told the judge.

Special Assistant U.S. Attorney Paul Van de Graaf said cellphone bills are not protected under Fourth Amendment prohibitions against unlawful searches and seizures. He said that while authorities didn't expect to receive the call location information included in the bills, they found it relevant to the case.

Zodhiates did not attend Tuesday's hearing. Judge Jeremiah McCarthy did not immediately rule on the suppression request.

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