The opinion of the court was delivered by: Savage, J.
When the precious rights of individuals to keep private the expression of their innermost thoughts collides with the desire of law enforcement to know all at all costs, this Court must take special care to ensure that what it says today is fair game for police conduct does not sacrifice on the altar of tomorrow the rights that we hold most dear under our state and federal constitutions.
In this criminal case, the State indicted Defendant Michael Patino for the alleged murder of Marco Nieves, the six-year-old son of Defendant's girlfriend, Trisha Oliver. The case against the Defendant is built largely on cell phone text messages that the State claims were sent by the Defendant to his girlfriend and that the Defendant claims were illegally obtained by the Cranston Police Department, without a warrant, in violation of his privacy rights. Defendant protests not only the way in which the police have attempted to build a case against him, but the charge of murder itself; he contends that he at no time intended to hurt, much less kill, Marco, and that the text messages at issue do not prove otherwise.
The case is before this Court principally for decision with respect to a panoply of pre-trial motions to suppress filed by the Defendant by which he seeks to bar the State from introducing certain evidence at trial, including the text messages found on Trisha Oliver's cell phone, numerous cell phones and their contents, and his videotaped and written statements that were a product of his police interrogation. Defendant argues that the collection of evidence by the Cranston Police Department repeatedly violated his rights against unreasonable searches and seizures and self-incrimination, as guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, sections 6 and 13 of the Rhode Island Constitution. He also contends that his videotaped and written statements to the police were involuntary and the result of coercive and threatening police tactics, in violation of his due process rights under the State and Federal Constitutions.
This Court convened an unprecedented month-long series of evidentiary hearings to address the volume of issues presented by these and other pre-trial motions. In the middle of the hearing, the Defendant moved for a Franks hearing, arguing that the suppression hearing had adduced evidence of multiple false statements in a dozen affidavits sworn to under oath by the police to secure search warrants in this case.
For the reasons set forth in this Decision, this Court holds that the Defendant has a reasonable expectation of privacy in his text messages and in the apartment where the subject cell phones were searched and seized so as to grant him standing, under the Fourth Amendment, to challenge the legality of the searches and seizures of those phones and their contents by the police. Based on the tsunami of illegal evidence collected by the Cranston Police Department, this Court grants Defendant's suppression motions and excludes the State's core evidence from being used at trial, including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant's videotaped statement and his written statement given to the police. In addition, this Court finds that the Defendant made a preliminary showing that numerous sworn statements made by police officers in a dozen warrant affidavits were either deliberately false or made in reckless disregard of the truth so as to entitle him to a Franks hearing subject to further argument on additional preliminary issues. This Court reserves decision as to all other pending pre-trial issues until trial.
The factual background of this case, as outlined in this Decision, does not represent this Court's actual view of the facts in this case. It reflects instead the chronology of events pertinent to the suppression motions, as testified to by the witnesses and established by the exhibits introduced during the lengthy suppression hearing.*fn1 This Court emphasizes, however, that much of what the Cranston Police Department did during the course of its investigation of the Defendant fails to square with this chronology; the evidence of record conflicts in many respects with the testimony of witnesses at the suppression hearing or their testimony was simply lacking in credibility. This factual background, therefore, is outlined simply for context as the version of events presented to this Court at the hearing. To the extent that this Court finds the facts to be at odds with this chronology, it will address them later in this Decision in its analysis of the issues presented.
On the morning of October 4, 2009, at approximately 6:08 a.m.,*fn2 Trisha Oliver placed a frantic 911 call*fn3 from her Cranston apartment at 575 Dyer Avenue, Apartment B18. According to the recording of the call, Trisha Oliver indicated that her six-year-old son, Marco Nieves, was unresponsive and not breathing. At approximately 6:11 a.m., Cranston Rescue and Fire Department responded to her apartment. Within minutes, rescue personnel transported Marco to Hasbro Children's Hospital. The dispatcher called ahead to alert emergency staff at the hospital that Marco was in full cardiac arrest. According to the 911 call, rescue personnel arrived at the hospital with Marco before 6:30 a.m. See St.'s Ex. 6.
While these events transpired at the hospital, the Cranston Police Department began its investigation at the scene. Sergeant Matthew Kite responded to the apartment at approximately 6:20 a.m. As he arrived, Sgt. Kite spoke very briefly with Officer Aldrich, who was leaving the scene in his police cruiser to escort the ambulance carrying Marco to the hospital. Subsequently, Sgt. Kite met with Officers Kim Carroll and Dan Lee, as well as Trisha Oliver. See St.'s Ex. 5. After speaking briefly outside the apartment, Trisha Oliver escorted Sgt. Kite into the apartment and showed him those rooms and areas of the apartment that he already had deemed relevant to Marco's illness.
Upon entering the apartment, Sgt. Kite observed a male, later identified as Trisha Oliver's boyfriend, Defendant Michael Patino. Defendant was sitting on the couch with a young child, later identified as his and Trisha Oliver's 14-month old daughter, Jazlyn Oliver. Trisha Oliver showed Sgt. Kite into Marco's bedroom, where he observed a stripped bed and linens on the floor; she showed him into the master bedroom, where Sgt. Kite saw another stripped bed and a trash can that had been used as a vomit receptacle by Marco; and she showed him the bathroom, where Sgt. Kite observed dark brown vomit that looked like coffee grounds in the toilet.*fn4 Sgt. Kite's tour of the apartment, of necessity, took him through the dining and the living rooms that one must pass through upon entering the apartment to get to the bedrooms. The only room Sgt. Kite claims that Trisha Oliver did not specifically show him was the kitchen, although he may have accessed that area of the apartment on his own.
After the quick tour of the apartment, Sgt. Kite returned with Trisha Oliver to the entrance of the apartment. Officer Carroll transported her to the hospital soon thereafter.*fn5 See St.'s Ex. 5. Upon their departure at approximately 6:30 a.m., Sgt. Kite requested that Officer Lee start a Crime Scene Roster. See St.'s Ex. 5. Though no officers yet considered the apartment a crime scene, Sgt. Kite testified that he believed it was prudent to record who entered and exited the apartment.*fn6 Sgt. Kite remained on the scene in the living and dining room areas looking for potentially hazardous materials that could have caused Marco's illness. In the process, he observed four cell phones: an LG Verizon cell phone on the kitchen counter;*fn7 a Metro PCS Kyocera cell phone*fn8 on the dining room table; a black T-Mobile Sidekick cell phone*fn9 on the back headrest of the couch, near where Mr. Patino was sitting; and an iPhone on the far armrest of the couch.*fn10
During this time, Sgt. Kite spoke with Defendant about going to the Cranston Police Station and making a formal statement about that morning's events, to which Defendant apparently was amenable, though he explained that there were no family members who could take care of Jazlyn in the interim. In his testimony, Sgt. Kite explained that he asked Defendant what happened the night before, to which Defendant responded that he did not know because he had not spent the night there. Sgt. Kite subsequently asked Defendant when Trisha Oliver had called him and asked him to come over, to which Defendant responded that she had not called him because he did not own a cell phone. According to Sgt. Kite, Defendant asserted that he had arrived at the apartment in the early hours of the morning only by chance.
Sometime after this interaction, the apartment landline telephone rang and the call was answered by Defendant.*fn11 Afterwards, at some time before 7:15 a.m., Sgt. Kite picked up and manipulated the cell phone on the kitchen counter, later identified as an LG Verizon cell phone with phone number (401) 486-5573, which he claimed he did in response to a ―beeping‖ sound that it had made. Because Defendant made no move to acknowledge or respond to the sound, Sgt. Kite felt that it was necessary to investigate the phone, in the event that it was a family member calling with respect to Marco's situation. In his testimony, Sgt. Kite maintained that he was most concerned about getting in touch with Marco's birth father, who had been unreachable up to that point. Upon picking up the phone, Sgt. Kite said he viewed an alert on the front, exterior screen of the device that said there was one new message. He then opened the phone, allowing him to view the interior screen. That screen said there was one new message, but that it could not be received due to a lack of credit on the account. Sgt. Kite testified that he ―manipulated a button‖ to ―acknowledge receipt of the message to avoid repeat notifications.‖ This manipulation led him to a list of text messages, with the most recent appearing at the top. As he saw the word ―hospital‖ in the message at the top of the list, he clicked on this message. Subsequently, Sgt. Kite viewed the following message in the ―SENT‖ folder, addressed to ―DaMaster‖ at phone number (401) 699-7580: ―Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg.‖ St.'s Ex. 28.
Though this message was located in the ―SENT‖ folder, it indicates that it was ―Saved,‖ implying that the attempt to send it failed and it never reached its intended recipient. Though Sgt. Kite stated in his testimony that he was disturbed by this message and found it suspicious, he claimed that he did not scroll through the rest of the messages on the phone. Sgt. Kite testified that, after reading this one message, he closed and replaced the phone on the counter and called Lieutenant Sacoccia at headquarters to inform him of the suspicious text message. During that phone call, Sgt. Kite also informed Lt. Sacoccia that there were no family members available to take care of Jazyln during Defendant's interview. Pursuant to this conversation, Lt. Sacoccia consulted with the Department of Children, Youth, and Families (―DCYF‖) and, on its advice, had an ambulance dispatched to transport Jazlyn to the hospital. The ambulance arrived and then left with Jazlyn at approximately 7:20 a.m. See St.'s Ex. 5.
Officer Jeremy Machado escorted Defendant to Cranston Police Department headquarters, arriving at approximately 7:30 a.m., where they were met by Officer Ryan Shore. Officers Machado and Shore remained with Defendant until they transferred him to the Detective Division at approximately 8:15 a.m.
At the apartment, after Defendant left at approximately 7:25 a.m., Sgt. Kite noticed that the cell phone, which had previously been on the back headrest of the couch near where Defendant was sitting, was no longer there. He immediately called headquarters to alert officers of this fact and to suggest, ―there's possibly some information that needs preservation and you might want to take [the cell phone] off [Defendant] upon arrival.‖ He also relayed the contents of the text message that he had seen on the LG cell phone to Lt. Sacoccia.
Back at headquarters, Officer Machado testified that he confiscated the black T- Mobile cell phone that Defendant had on his person. Instead of placing the phone in a secure ―trap‖ at the station, Officer Machado secured the phone on his person.*fn12 Officer Machado subsequently gave Sgt. Walsh the cell phone taken from Defendant's person. Sgt. Walsh placed the cell phone in his pocket and did not turn it over to the Department of the Bureau of Criminal Investigation (―B.C.I.‖) until later that evening. At this point, this Court briefly notes that all the evidence which the Cranston Police Department seized and took into custody was not secured until much later in the day on October 4, 2009.
At 8:09 a.m., it appears that an officer at the apartment used the LG cell phone, phone number (401) 486-5573, to call the phone's voicemail account, though the officer hung up after 15 seconds.*fn13 St.'s Ex. 32. Sgt. Kite remained on scene in a supervisory capacity until 10:15 a.m., during which time Detectives Wayne Cushman and Peter
Souza of B.C.I. arrived at 7:15 a.m. and 8:32 a.m., respectively.*fn14 See St.'s Ex. 5. All detectives remained on standby at the scene until Lt. Sacoccia called them and confirmed that a search warrant for the apartment had been signed. At this point, B.C.I. detectives began photographing and videotaping the scene. Det. Cushman took still photographs, while Det. Souza videotaped the scene. Following the filming and photographing, both detectives gathered and bagged items for evidence. See St.'s Ex. 6 and 23; Def.'s Ex. G. Notably, the critical cell phones seized by the B.C.I. detectives were placed in little brown paper bags that were not securely sealed. Photographs of the apartment reveal that the officers picked up and moved the Metro PCS cell phone that morning.*fn15
After Sgt. Walsh arrived at the apartment with a hard copy of the search warrant, he and Sgt. Kite decided to have B.C.I. photograph the contents of the LG cell phone ostensibly to protect the integrity of the investigation against the possibility of the relevant text messages being remotely deleted. See St.'s Ex. 23. The photographs taken at this point reveal incriminating text messages on the LG cell phone with profane language and references to punching Marco ―three times,‖ the hardest of which was in the stomach. St.'s Ex. 28.
Sgt. Kite was given the LG cell phone in an unsealed paper bag by B.C.I. detectives at approximately 10:15 a.m. Sgt. Kite turned the bag over to Det. Cushman at headquarters later that afternoon.
Meanwhile, Detectives Jean Paul Slaughter and John Cardone interrogated Defendant at the Cranston Police Department for almost three hours from 8:36 a.m. to 11:31 a.m.*fn16 See St.'s Ex. 68.*fn17 By 8:40 a.m., Defendant had signed and waived his Miranda rights. See St.'s Ex. 65 & 66.
Very early on in the interview, Detectives Slaughter and Cardone made a number of general references to text messages and their evidentiary value. St.'s Ex. 68. When asked for his cell phone number toward the beginning of the interview, Mr. Patino responded, ―699-7580.‖ Id. At 9:45 a.m., Defendant expressed a desire to see both Trisha Oliver and Marco, though he stayed in the interview room after Detective Cardone explained, ―we have a job to do, too.‖ Id.
Immediately afterward, both Detectives Cardone and Slaughter left the room, leaving Defendant alone for a short time. Upon his return, Det. Slaughter immediately discussed the text messages, saying, ―You know we have your phone . . . We secured a search warrant for the property. . . . Those texts are damaging.‖ Id. It is unclear from this statement and from Det. Slaughter's testimony, whether the ―phone‖ to which Det. Slaughter was referring was the LG cell phone or the black T-Mobile Sidekick cell phone and it is likewise unclear whether and from where it was taken (the apartment or the Defendant's person). Det. Slaughter then told Defendant ―Either you tell me . . . you're gonna [sic] be charged anyway.‖ Id. When Defendant asked ―what am I gonna [sic] be charged with,‖ Det. Slaughter said ―probably murder.‖ Id.
Det. Slaughter then stated, ―I just talked to my supervisor, based on the texts we have, you're being charged. You ever been to the ACI?‖ From here on, the interview became markedly more aggressive. Id. In response to Defendant's general unwillingness to acknowledge the existence of, or his participation in the suspicious text messages, Det. Slaughter asserted, ―they're on your phone, even the ones sent back.‖ Id.
Det. Cardone then questioned Defendant about the events of the previous evening, and asked repeatedly, ―What happened to Marco?‖ Id. Defendant consistently asserted that he did not know and that he was ―being honest.‖ Id. The conversation then turned to whether Defendant may have had any physical contact with Marco, including the occasion to discipline him. Defendant volunteered no information regarding physical or violent contact between himself and Marco and, in fact, denied any such contact when then Det. Cardone accused him directly. At 10:02 a.m., Defendant volunteered that he had been teaching Marco how to ―stand up for himself.‖ Id. Det. Slaughter quoted alleged text messages to Defendant, reciting, ―tell that bitch to man up, I didn't hit him that hard.‖ Id. Det. Slaughter proceeded to explain to Defendant that ―those texts are damaging . . . no matter what you say in this room, you're still going to be charged.‖ Id.
Det. Slaughter's word choice was extremely similar to some of the text messages which were photographed on the LG cell phone minutes earlier that morning. See St.'s Ex. 23 & 28. This similarity leads this Court to believe that Det. Slaughter had seen, possibly first-hand, the content of those messages on some cell phone, or at least been explicitly advised of their contents, prior to this portion of the interview. Yet, Sgt. Walsh and Det. Slaughter testified that the content of these messages was relayed verbally only. Det. Cardone testified that there was a possibility that he saw a visual representation of the text messages from some unidentified source at the time of Defendant's initial interview, but he could not offer the Court a concrete recollection. He testified that he saw ―pictures‖ of text messages during some of his absences from the interrogation room, but he could not definitively recall at what time he saw them, whether he saw them on a cell phone, or what cell phone. This Court has taken notice of the fact that, at the time of Defendant's interview and during each of the detectives' respective absences from the interview room to consult with other officers, Sgt. Walsh had what he referred to as Defendant's cell phone in his pants pocket. Sgt. Walsh testified that he never took that phone out of his pocket until he logged it as evidence with B.C.I.
Defendant admitted that he and Trisha Oliver had been arguing via text messages the day before, but claimed that the messages were written with harsh and profane language to aggravate and upset her. See St.'s Ex. 68. At the recurring request from the detectives to ―tell us what happened,‖ Defendant replied, ―what do you want me to do if I didn't do anything?‖ Id. At this point, Det. Slaughter began to recite the different benefits that Defendant would receive if he confessed, including leniency as a result of his remorse. Both detectives intimated that there were different sentences associated with different degrees of murder charges. Id.
After repeated statements from Det. Cardone suggesting to the Defendant what might have happened, Defendant indicated that he and Marco had been horsing around the previous day and that Marco had fallen off the bed. Id. Defendant explained that Marco fell off the bed onto his back, and that Defendant fell on top of him, their bodies forming a cross. Defendant also claimed that Marco ―got up‖ and ―was fine.‖ Id. Defendant said the two of them continued to play and that Marco came in on him as he was showing Marco how to punch and he hit Marco in the left side of his ribs. Id. Det. Cardone then asked Defendant ―Was it a body shot?‖ Id. Defendant responded ―Huh?‖ Id. Det. Cardone then said ―Was it a body shot you were trying to show him or were you, were you going straight like a jab?‖ Defendant responded, ―A bodyshot.‖ Id. Det. Cardone explained in his testimony, but not to Defendant, that a body shot is a boxing term.
At the hearing, it was insinuated that Det. Cardone's word choice in classifying Defendant's action as a ―body shot‖ was taken directly from the text messages, but this Court has found no indication of ―body shot‖ language anywhere in the text messages that have been logged and entered into evidence. When asked why he had been unconcerned with Marco's illness, despite the fact that Trisha Oliver had alerted him to it and requested his assistance the previous day, Defendant explained to Detectives Cardone and Slaughter that Marco had a history of self-induced vomiting as a form of rebellion and tantrum. Id. Though Defendant relayed the instance of horseplay with Marco on the day preceding the incident, Defendant maintained the belief that this instance was unrelated to Marco's illness. Id.
It was at this point, at 10:30 a.m., that Detective Slaughter began discussing Defendant's daughter, Jazlyn, and how Marco's imminent death and Mr. Patino's likely arrest would affect her future. Id. Det. Slaughter said, ―You're not gonna [sic] have a chance to say goodbye to your own daughter.‖ He continued, ―if you tell us the truth, guess who gets to go home with mommy,‖ and then asserted that DCYF had already arrived for Jazlyn and that Jazlyn would most likely remain in the State's custody. Throughout these comments, Det. Slaughter implied that the quality and content of Defendant's statements could alleviate Jazlyn's situation. Id.
Shortly after this time period, Det. Slaughter said, ―Do you know that on one of those texts, it says there are ‗marks on his neck'? ‗Oh my God,' it says. ‗OMG,' that means Oh my God.‖ Id. This statement is a direct quote from the text message that Sgt. Kite claimed to have seen at the scene around 7:15 a.m. that morning. This statement further indicates that Det. Slaughter had very explicit access to, and perhaps viewed the contents of, the subject text messages during the course of the interrogation. Toward the end of the interrogation, Defendant said he was dizzy and Det. Cardone said to him, ―You don't look all right.‖ After this, Defendant was left alone to write his statement.
Defendant seemed to write his statement to include material that the Detectives desired. He referenced text messages, writing, ―. . . I just sent [Trisha Oliver] some really mean text messages because I knew that they would push her buttons.‖ St.'s Ex. 67. Defendant stated that he used T-Mobile and that his number was ―699-7580.‖ St.'s Ex. 68. From approximately 11:00 a.m. to 11:22 a.m., Defendant was alone in the interview room. Id. At 11:22 a.m., Det. Slaughter re-entered the room, read Defendant's statement, and said ―Where's the body shot?‖ Id. Defendant said ―Huh?‖ Id. ―Det. Slaughter repeated ―Where's the body shot?‖ Id. Defendant said, ―Oh.‖ Id. Det. Slaughter then said, ―Leave that out? So you put that in somewhere.‖ Id. Defendant added to his statement ―and Marco ran into a body shot when we continued to play.‖ St.'s Ex. 67. Det. Slaughter made him initial that part of the statement. See St.'s Ex. 68. At 11:31 a.m., Officers Machado and Shore entered the interview room, confiscated Defendant's remaining belongings, handcuffed him, and then escorted him down to one of the holding cells. Id. At this point, they placed all of Defendant's belongings--except for the cell phone that the police had taken previously from his person--in a trap in accordance with standard procedure. The cell phone, which had been originally confiscated off Defendant earlier that morning, remained in Sgt. Walsh's custody until later that day.
At 12:30 p.m. on October 4, 2009, at Hasbro Children's Hospital, Patrolman E. Robert Arruda (who did not testify at the hearing) apparently provided a rights waiver to, and took a formal, written statement from, Trisha Oliver. In this statement, Trisha Oliver explained that Marco began throwing up between 2:30 p.m. and 3:00 p.m. the previous day. She continued by writing, ―My boyfriend said he went to go hit [Marco] and [Marco] moved causing him to hit my son in the stomach.‖ According to Trisha Oliver's statement, Marco continued to vomit throughout the evening and into the night. Upon waking at 6:10 a.m. to ―check on [Marco],‖ Trisha Oliver found that ―he wasn't breathing.‖ St.'s Ex. 75 & 76.
An hour later, at 1:30 p.m., Detectives Cardone and Slaughter arrived at the hospital with the primary intention of checking on the status of Marco and the secondary intention of talking to family and friends who may have been potential witnesses to abuse. They encountered Dr. Christine Fortin, who advised them that Marco remained in ―critical condition.‖ St.'s Ex. 74. She provided the detectives with her initial report on the condition of Marco Nieves, which suggested evidence of child abuse. Id. In the report, Dr. Fortin relays that Marco arrived at the hospital in cardiac arrest and that, during his stay, prior to his death, ―Marco's grandmother report[ed] that Marco's
‗stepfather' Michael Patino ‗confessed' to ‗punching' Marco in the ‗stomach.'‖ Id.
At 2:10 p.m., Detectives Cardone and Slaughter administered a second rights form to Trisha Oliver, and, following their conversation, Trisha Oliver signed a Consent to Search form for the ―LG cell-phone belonging to Trisha Oliver. (401) 486-5573.‖ St.'s Ex. 58, 59 & 77.
At 4:53 p.m., while still at the hospital, Detectives Cardone and Slaughter also interviewed Guida Andrade, the mother of Marco's biological father's then-girlfriend. Her statement, she testified, is an account of what was ―in her mind‖ upon hearing that Marco was in the hospital.
At 5:05 p.m., Marco Nieves expired at Hasbro Children's Hospital. At 6:00 p.m., Det. Cardone took a second written statement from Trisha Oliver. In this statement, she included a more detailed list of the events that transpired on October 3, 2009 and provided a more incriminating portrayal of Defendant's role in those events, writing:
[Marco] threw up as we where leaving church. At home I offered him food he didn't want to eat. He just wanted water then he went to sleep on my bed. I then texted Mike and asked what happened he said that he went to go hit him and he moved and he ended up hitting him the stomach. [sic] St.'s Ex. 78.
In investigating the Defendant, the Cranston Police Department sought and obtained over a dozen warrants to search and seize evidence at the scene, the contents of cell phones and the records of service providers connected with those phones. The first search warrant, according to testimony, was signed at approximately 9:10 a.m. on
October 4, 2009. *fn18 See St.'s Ex. 22. The warrant says that it was served on Trisha Oliver at the location of 575 Dyer Ave., Apt. B18, Cranston, RI, and it allowed for the search and seizure of, ―Any and all articles, instruments, or otherwise that may have evidentiary value pertaining to an investigation of an unresponsive child known as Marco Nieves DOB 9/15/03 which has been determined to be suspicious in nature.‖ Id. There is no evidence that Trisha Oliver was officially served with the warrant. It would have been difficult for the police to serve her at her apartment, as the warrant said they did, as she was at the hospital at that time. The affidavit for this warrant read:
I, Sergeant Edward Walsh, an elector of the State of Rhode Island and Providence Plantations, and a member of the Cranston Police Department, having been continuously employed in that capacity for the past 22 years, hereby depose and say that I have reason to believe and do believe that there is evidence relating to a six year old male identified as Marco Nieves DOB 9/15/03 who resides at 575 Dyer Ave., Apt. B-18, Cranston, Rhode Island who was found unresponsive inside of this apartment. Officer's [sic] who had responded to this apartment observed dark brown vomit inside of the toilet.
Marco Nieves was transported to Hasbro Hospital where he is in very critical condition. The attending doctor located marks on Nieves right shoulder and also determined Nieves was suffering from brain trauma which he classified as suspicious.
This affidavit, signed by Sgt. Walsh, who had the Defendant's phone on his person when the Judge signed the warrant, conspicuously includes no information about text messages or cell phones. It was pursuant to this warrant, however, that Detectives Cushman and Souza of B.C.I. seized all the evidence from the apartment, including the LG cell phone, the Metro PCS cell phone, and the iPhone. The Return of Service attached to the warrant, in fact, lists the LG cell phone and the Metro PCS cell phone first and second, respectively, on the list of items seized.
Later that day, the police drafted several additional warrants, including one to search the Metro PCS cell phone,*fn19 a second one to search the contents of the LG Verizon cell phone,*fn20 and a third one to obtain the T-Mobile records for telephone number (401) 699-7580.*fn21 Sgt. Gates signed all of the affidavits in support of these warrants.
More specifically, sometime soon after Marco Nieves' death at 5:05 p.m. on October 4, 2009, Sgt. Gates drafted a warrant specific to the Metro PCS cell phone. The police served the warrant on Sprint/Nextel and requested the search of the ―Metro PCS Cellular Phone and the stored content including but not limited to Text and Voice Messages.‖ As the text of this warrant affidavit is important to understanding the activities of the police prior to its issuance, the course of their investigation and the subsequent warrants they obtained, the full text of the affidavit has been included below:
I, Detective Sgt. Michael H. Gates, an Elector of the State of Rhode Island and Providence Plantations, and a member of the Cranston Police Department, having been continuously employed in that capacity for the past (18) years, on solemn oath depose and say that I have reason to believe that evidence in the form of text messages and voice messages, related to the crime of Child Abuse, can and will be located in the Cellular Phone(s), an LG Cell Phone and an Metro PCS Cell Phone properly seized under order of a Search Warrant from the crime scene.
On 10/04/09 at about 0612 hrs, Cranston Police responded to 575 Dyer Av, Riverbend Apts., Apt. number B18, with regard to a Medical Emergency; along with Cranston Rescue. Upon arriving there, officers learned there was a six year old male child who was unresponsive and would need immediate attention at Hasbro Children's hospital.
Upon investigating the possible causes of the child's condition, officer's [sic] learned the boy had been struck by the suspect, Michael Patino (dob 01/27/1982). Michael Patino himself stated he had accidentally struck the child at about 1500 hrs (or 3:00pm). The child immediately began experiencing pain and vomiting from the time the incident occurred, throughout the evening, and into the early morning hours on 10/04/09. It was further learned the suspect is the boyfriend of the child's mother, Trisha Oliver (dob 12/08/1982), that he often lives with the victim, and shares a 14 month old daughter in common with the victim's mother.
While Sgt. Kite was at the scene, he made several observations including the dark color of the victim's vomit, possibly indicating the extent of injury, and several cellular phones, one an LG Verizon Sidekick cell phone belonging to Trisha Oliver, and a second Metro PCS cell phone belonging to the suspect, Michael Patino.
During the time Sgt. Kite was in the apartment, the LG Verizon Sidekick phone rang and Sgt. Kite attempted to answer it but instead received a prompt indicating the message was an incoming text message that would not be delivered due to Trisha Oliver not having purchased additional minutes on her ―prepay‖ card. As Sgt. Kite attempted to disconnect, the prompt took him to the text message box where he read the last text sent to ―Da Master‖ at phone number 401-699-7580. That message read, ―Wat if I got 2 take him 2 da hospital wat will I say and dos marks on his neck.‖ Sgt. Kite informed that message was time stamped on 10/03/2009 at 6:10pm. While continuing the investigation, it was learned from Trisha Oliver the person she sent that message to, ―DaMaster‖ was in fact, Michael Patino. The Metro PCS cell phone was seized at Cranston Police HQ from the suspect. The LG cell phone belonging to the mother of the victim was voluntarily turned over to the Cranston Police BCI investigators by Trisha Oliver.
The six year old male victim was transported by city rescue workers to Hasbro Children's Hospital. During the morning hours on 10/04/2009, it was reported by attending physicians at Hasbro that the types of injuries the child was suffering from were consistent with what is normally seen in abuse cases, and certainly were not sustained by a single accidental strike.
Later on that afternoon, it was learned by detectives present with family members at Hasbro, the victim had been taken off life support systems and did expire at 1705 hrs (or 5:05pm).
Based on the above information, I respectfully request a search warrant be issued for the two cellular phones in order to review additional potential incriminating text messages and voice messages between the mother of the deceased, Trisha Oliver, and the suspect, Michael Patino. St.'s Ex. 34.
It is important to note several key details in this affidavit. In the first paragraph, Sgt. Gates wrote that the LG cell phone and the Metro PCS cell phone were seized pursuant to the original warrant at the scene. This statement is inconsistent with other evidence suggesting that the Metro PCS cell phone was taken off of Defendant's person at the station. Second, in the fourth paragraph, Sgt. Gates referred to the LG cell phone as an ―LG Verizon Sidekick.‖ Id. This reference is perhaps the first official mention of the LG cell phone as a Sidekick, but it certainly is not the last. In fact, the LG cell phone, which the police consistently have referred to as an ―LG Verizon Sidekick‖ throughout the investigation and proceedings in this case, is not a Sidekick model phone. This Court finds it imperative to point out, however, that the black T-Mobile cell phone was, in fact, a Sidekick.
Also in the fourth paragraph, the Metro PCS cell phone is attributed to the Defendant. While it appears that Defendant did own the Metro PCS cell phone, this phrase is notable because it suggests that either the police seized the Metro PCS cell phone from the Defendant at the station, rather than the T-Mobile cell phone as suggested by other evidence, or an officer handled the Metro PCS cell phone prior to B.C.I.'s bagging it for evidence.
Photographs taken of this Metro PCS cell phone on October 28, 2009, pursuant to this warrant, show compelling evidence that Defendant was using, or had used, this cell phone.*fn22 They also show that the contested text messages are not on, or at least were not photographed from, this phone. See St.'s Ex. 31. To understand these warrants and the case as a whole, this Court must clarify that, several weeks later, on October 28, 2009, Det. Cardone says that he discovered that the Metro PCS cell phone was not, in fact, confiscated from Defendant at the Cranston Police Station on the morning of October 4, 2009, as he said had been assumed by the police for the first twenty-four days of the investigation. In fact, he said that Officer Machado confiscated the T-Mobile cell phone at the station and that the police seized the Metro PCS cell phone at the scene on the morning of October 4, 2009. As a result of this alleged belated discovery, Det. Cardone drafted an additional warrant on October 28, 2009 (which this Court will address later) that he claims he did in an effort to correct this alleged confusion regarding the cell phones and to obtain the correct and necessary information from the relevant phone.
The third warrant--likely obtained at the same time as the warrant for the Metro PCS cell phone--allowed for the search of the ―LG Verizon Sidekick Cellular Phone and the stored content including but not limited to Text and Voice Messages.‖ St.'s Ex. 35. The affidavit in support of this warrant is identical to the one written for the Metro PCS cell phone; it contains the same inaccuracies and its content appears to have been copied or cut and pasted from the earlier affidavit. This duplication is particularly apparent in the last paragraph of both warrant affidavits, which reads, ―Based on the above information, I respectfully request a search warrant for the two cellular phones in order to review additional potential incriminating text messages . . .‖ St.'s Ex. 34 & 35 (emphasis added).
As the only photographs of the LG cell phone entered into evidence at this hearing were those of the text messages that were taken at the apartment on the morning of October 4, 2009, it appears that the police drafted the later warrant for the contents of the LG cell phone (St.'s Ex. 35) simply to cure any deficiency in the scope of the prior warrant for that cell phone. While the warrant allowed the officers and detectives assigned to the case to search through the cell phone to view the text messages first hand, no full evidence has been produced to this Court that the police obtained specifically pursuant to this warrant.
On October 6, 2009, Sgt. Gates drafted, and had signed, four additional search warrants, to obtain cell phone records specific to various cell phones and cell phone numbers. As these warrants contain no information as to their respective times of issuance that day, they will be listed here according to their exhibit numbers, as entered by the State during the suppression hearing.
Sgt. Gates obtained a warrant for phone records associated with cell phone number (401) 699-7580 and served it on T-Mobile Law Enforcement Group at the location of Sprint/Nextel Keeper of Records,*fn23 which allowed for the search of ―T-mobile cellular number 401-699-7580 as enumerated in Federal Statute Title 18-2703-D. This warrant sought: ―subscriber information, cell site information, saved/stored text messaging, and voice mail records between 0001 hours and 0000 hours 10/04/09.‖ St.'s Ex. 36. The affidavit is nearly identical to the prior affidavits for the Metro PCS cell phone (St.'s Ex. 34) and the LG cell phone (St.'s Ex. 35), including the statement that ―evidence in the form of text messages and voice messages, related to the crime of Child Abuse, can and will be located in the Cellular Phone(s), an LG Cell Phone and an [sic] Metro PCS Cell Phone.‖ Id. The sole difference between this affidavit for the T-Mobile cell phone and the prior affidavits for the other two cell phones is the last paragraph, which reads:
Based on the above information, I respectfully request a search warrant be issued for T-Mobile cellular number 401-699-7580 as enumerated in Federal Statute Title 18-2703-D. The information being sought is as follows: subscriber information, cell site information, saved/stored text messaging, and voice mail records between 0001 hrs 10/03/09 and 0000 hrs 10/04/09.
Sgt. Gates sent a letter to T-Mobile in advance of obtaining the warrant for the T- Mobile phone records to ask the service provider to preserve the information that he expected to request by the warrant. See St.'s Ex. 37. T-Mobile produced the requested information on October 20, 2009, and the records show that Defendant's use of the T- Mobile cell phone was almost exclusively for text messaging. The results also reveal that T-Mobile does not store, and has no capacity to produce, the content of subscriber text messages. See St.'s Ex. 38.
Neither this warrant, nor the attached affidavit, contain any particularized information about the cell phone in question. The make, model, size, and even the color of the phone, to which the number (401) 699-7580 belonged, are curiously absent. As explained above, both the LG cell phone and the Metro PCS cell phone are mentioned in the affidavit, but the black T-Mobile Sidekick is not. The cell phone number and the service provider, which the Defendant revealed at the end of his interrogation, are the only details included.
Sgt. Gates also obtained a warrant for phone records for phone number (401) 359- 6789, believed to belong to Mario Palacio, a friend of the Defendant, and served it on the T-Mobile Law Enforcement Group again at the location of Sprint/Nextel Keeper of Records on October 6, 2009.*fn24 It allowed for the search of ―Subscriber information, cell site information, saved/stored text messages, and voice mail regarding cellular telephone number 401-359-6789, as enumerated in Federal Statute Title 18-2703-D.‖ St.'s Ex. 39. The affidavit for this warrant, once again, is almost identical to the prior affidavits for the warrants seeking the contents of the Metro PCS cell phone (St.'s Ex. 34), the LG cell phone (St.'s Ex. 35) and the T-Mobile cell phone (St.'s Ex. 37) with a few additions. In this affidavit, Sgt. Gates changed the second sentence of the fifth paragraph to read, ―As Sgt. Kite attempted to disconnect, the prompt took him to the text message box where he read the last text sent to ―DaMaster‖ from Verizon Wireless number 401-486-5573 to T- Mobile number 401-699-7580.‖*fn25 The other change to this warrant affidavit is contained in its bottom two paragraphs, which read:
On 10/06/09 Det. John Ryan spoke with a witness, Mario Palacio (dob 03/13/59) who informed he was with the suspect, Michael Patino, during the hours immediately following the assault against the victim. According to Trisha Oliver, she did receive a phone call from Patino following the assault, but did not recognize the phone number. The time of that call, and the witness who lent Patino his phone, Mario Palacio, are relevant to the investigation in order to corroborate information already learned as well as completing a time line of events leading to the death of the juvenile victim.
Based on the above information, I respectfully request a search warrant be issued for T-Mobile cellular number 401-359-6789 as enumerated in Federal Statute Title 18-2703-D. The information being sought is as follows: subscriber information, cell site information, saved/stored text messaging, and voice mail records between 1500 10/03/09 and 2130 hrs 10/03/09. St.'s Ex. 39.
Interestingly enough, the cell phone associated with this warrant affidavit is also a T-Mobile cell phone. T-Mobile Law Enforcement Group produced the records sought by this warrant on October 20, 2009. See St.'s Ex. 52 & 41.*fn26 The records verify that Palacio owned the cell phone and show that someone made a nine minute phone call from Palacio's phone to (401) 383-7022, the phone number for Trisha Oliver's landline phone, at 9:35 p.m. on October 3, 2009. See St.'s Ex. 41.
Sgt. Gates further obtained a warrant for phone records for phone number (401) 486-5573, belonging to Trisha Oliver, and served it on the Verizon Wireless Legal Department, again at the location of Sprint/Nextel Keeper of Records. This warrant requested subscriber information and records for the LG cell phone. See St.'s Ex. 43.*fn27 All of the information listed in this affidavit is identical to the information in the affidavit for Palacio's phone records, (St.'s Ex. 39), except for the final paragraph, which reads:
Based on the above information, I respectfully request a search warrant be issued for Verizon Wireless cellular number 401-486-5573 as enumerated in Federal Statute Title 18-2703-D. The information being sought is as follows: subscriber information, cell site information, saved/stored text messaging, and voice mail records between 0001 hrs 10/03/09 and 0000 hrs 10/04/09. St.'s Ex. 42.
Unlike T-Mobile, Verizon was able to produce records with text messaging content in them. See St.'s Ex. 44. The content of the LG cell phone matches the photographs taken on October 4, 2009 by Det. Cushman, including a text message which reads, ―Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg,‖ which is the message that Sgt. Kite testified to having seen that morning. Id.
Sgt. Gates finally obtained a warrant for the phone records for phone number (401) 454-9765, believed to have been in Guida Andrade's name but belonging to Marco's father, Rafael Nieves. See St.'s Ex. 46. He served this warrant on Sprint/Nextel Legal Compliance at the location of Sprint/Nextel Keeper of Records. See St.'s Ex. 47.*fn28 It allowed for the search of ―Sprint Nextel cellular number 401-454-9765 as enumerated in Federal Statute Title 18-2703-D.‖ The warrant sought: ―subscriber information, cell site information, saved/stored text messaging, and voice mail records between 0001 1/25/09 and midnight 1/25/09.‖ St.'s Ex. 46. The affidavit is identical to the affidavit for Palacio's records (St.'s Ex. 39), with the following addition:
Moreover, the investigation also revealed the biological father of the victim, Rafael Nieves, received a voice mail on his cellular phone, 401- 454-9765 (Sprint/Nextel) from the suspect, Michael Patino, on 01/25/09. That voice mail was a threat to punch the child, the deceased child from this case.
Defendant supposedly left the voicemail, referenced in this warrant affidavit, when he accompanied Trisha Oliver to drop off Marco to see his biological father on January 25, 2009. Sprint/Nextel produced the information responsive to this warrant on October 9, 2009. In its report, no phone calls, of the 62 that were recorded, are shown to or from (401) 699-7580 or (401) 486-5573. See St.'s Ex. 48.
On October 8, 2009, Sgt. Gates drafted and had signed two additional warrants. The first warrant sought phone records for phone number (401) 431-3626, which then belonged to Angie Patino, the Defendant's sister.*fn29 He served this warrant*fn30 on the Sprint/Nextel Legal Compliance department at the location of Sprint/Nextel Keeper of Records, and it allowed for the search of ―Sprint Nextel cellular number 401-431-3626 as enumerated in Federal Statute Title 18-2703-D.‖ The warrant sought: ―subscriber information, cell site information, saved/stored text messaging, and voice mail records between 0001 09/28/09 and midnight hrs 10/04/09.‖ St.'s Ex. 49. This warrant affidavit is almost identical to the warrant affidavit for Rafael Nieves' phone (St.'s Ex. 46), although it also has the following addition:
Additionally, with cooperation from the victim's mother, the ongoing investigation revealed the suspect may have had contact with his sister, Angie Patino. The victim's mother, Trisha Oliver, stated Angie Patino has a cell phone with the number 401-431-3626, a Sprint/Nextel number. It is believed the suspect contacted his sister on her cell phone often which would corroborate the phone number, 401-699-7580, as belonging to the suspect, Michael Patino, as Trisha Oliver claimed. This would make it irrefutable for the suspect to deny that 401-699-7580 is the phone that is under his constructive control on a regular basis, and would also prove that Michael Patino is in fact, ―DaMaster.‖
Sprint/Nextel responded on October 13, 2009. See St.'s Ex. 51. It produced two preserved text messages, both of which were unrelated to this case, and no voice mail messages. Its records indicate that several outgoing phone calls were made from Angie Patino's phone to both (401) 486-5573 (the LG cell phone) and (401) 383-7022 (the apartment landline phone) between the hours of 5:21 p.m. and 11:15 p.m. on October 4, 2009. See St.'s Ex. 60 & 62. According to the call log, only one of these calls (at 5:21 p.m.) was answered and that conversation lasted only three seconds. Id. The log also indicates that Angie Patino called (401) 699-7580 one time on October 4, 2009 at 8:58 p.m., but received no answer. Id. Otherwise, the records show that Ms. Patino was in repeated contact with her mother, at phone number (401) 475-9434, between 11:23 a.m. and 11:59 p.m. on October 4, 2009. See St.'s Ex. 32 & 34.*fn31
Sgt. Gates sought a second warrant on October 8, 2009 for phone records for phone number (401) 383-7022, the landline phone number at the apartment, which was in Trisha Oliver's name. He served this warrant*fn32 on Cox Communication Keeper of Records again at the location of Sprint/Nextel Keeper of Records, and it allowed for the search of ―Cox Communications Subpoena Response keeper of the records for number 401-383-7022.‖ The warrant sought: ―any and all incoming and outgoing calls between the hours of 0001 hrs on 10/03/09 and midnight on 10/04/09.‖ St.'s Ex. 53. The affidavit for this warrant was also identical to the warrant issued for Rafael Nieves' phone records, except that it included the following addition:
During an interview with the victim's mother, Trisha Oliver, she informed she had run out of her pre-paid minutes for her cell phone. Because of that, Ms. Oliver stated she began using her ―landline‖ telephone to communicate with the suspect. Ms. Oliver's landline home phone is 401- 383-7022 and is a Cox Communications account. It is relevant to obtain records of incoming and outgoing phone calls to that Cox number in order to corroborate that the suspect's phone is 401-699-7580 and that number is directly correlated with Ms. Oliver's address book which lists Michael Patino as ―DaMaster.‖ St.'s Ex. 53.
The documents returned by Cox Communications indicated that three outgoing calls were made from (401) 383-7022 to (401) 699-7580 on the evening of October 3, 2009. The first, made at 6:19 p.m., lasted five seconds. The second, at 6:31 p.m., lasted five seconds as well. The third, made at 10:11 p.m., lasted only three seconds. The call records also show the 911 call as originating at 6:08 a.m. on October 4, 2009 and lasting one minute and seventeen seconds. See St.'s Ex. 55.
On October 28, 2009, Det. Cardone drafted a warrant specifically regarding a ―black T-Mobile Sidekick, cell number 401-699-7580.‖*fn33 St.'s Ex. 56. This warrant was signed by the Judge and served on Defendant, and it allowed for the search of the ―Black T-Mobile Sidekick cell phone; number 401-699-7580; likely containing stored text and voice mail information necessary to continue the successful investigation into the death of this child.‖*fn34 Id. Det. Cardone's affidavit is again strikingly similar to Sgt. Gates' affidavit for the records of Rafael Nieves' cell phone. There are, however, a few key exceptions. First, Det. Cardone stated that it was the LG Verizon cell phone and the black T-Mobile SideKick phone that were ―properly seized under order of a Search Warrant at the crime scene.‖ Id. This information deviated not only from the warrant affidavit for Rafael Nieves' cell phone records (St.'s Ex. 46), but from all of the warrant affidavits written by Sgt. Gates, which state that the police seized the LG cell phone and the Metro PCS cell phone from the scene. Later in the affidavit, Det. Cardone contradicted himself, writing, ―The Black T-Mobile SideKick cell phone was seized at Cranston Police HQ from the suspect.‖ St.'s Ex. 56.
Det. Cardone also added the following paragraph to his affidavit:
Following the seizure of the T-Mobile SideKick from the suspect, Michael Patino, a Search Warrant was applied for, reviewed and signed by Judge William Clifton, and served to T-Mobile Law Enforcement Relations. The results did return subscriber information indicating Michael Patino was the name listed for account billing for mobile number 401-699-7580. However, T-Mobile LE Relations also indicated they did not have any information regarding text messaging or voice mail recorded with their company, but informed that information may be stored on the mobile phone itself. Additionally, a Search Warrant was also served to Verizon Wireless Legal and External Affairs Dept., and it was verified in the results faxed to the Cranston Police, as Trisha Oliver had states [sic], that there were text messages exchanged between her phone and the suspect's phone following the time when the child was first injured and when he was pronounced dead. As T-Mobile has indicated, and the victim's mother (Trisha Oliver) in documented statements, there is probable cause to believe the content of those text messages and incriminating voice mail messages are stored on the Black T-Mobile SideKick phone seized from Michael Patino's pocket at the time of his arrest.
Id. Det. Cardone attempted to explain in testimony that this October 28, 2009 warrant affidavit was designed to correct previous statements in Sgt. Gates' warrant affidavits which had suggested erroneously that the police actually confiscated the Metro PCS cell phone from Defendant at the Cranston Police Station on the morning of October 4, 2009. Det. Cardone also tried to explain further that he realized that officers had made this error, when he reviewed phone records obtained from the various service providers pursuant to the earlier warrants, thereby prompting him to seek this additional warrant. Yet it is highly notable that he did not seek this warrant for this critical cell phone until almost a month into the investigation of the Defendant and after receiving phone records for and looking at all of the other cell phones. It also is particularly important to note that, at the time he sought this warrant for the T-Mobile cell phone text message records, he already knew that T-Mobile did not keep a record of text messages.
Following the issuance of a warrant for the T-Mobile cell phone, Detectives Slaughter, Cushman, and Cardone viewed that phone a collective total of six times between October 28, 2009 and November 5, 2009. See Def.'s Ex. N & O. Pursuant to Det. Cardone's warrant, the police took a collection of photographs of the contents of the black T-Mobile Sidekick cell phone. See St.'s Ex. 30. Time-stamped on October 29, 2009, these photographs are limited in that they show the contents of the cell phone as it existed twenty-five days after Marco's death. They are further limited in that it appears, inexplicably, that the police failed to photograph all of the contents of the phone. One of the last photographs in the collection shows the phone's ―System Info‖ page, where most cell phones display the device's phone number and other details about the service plan. Id. Interestingly, the T-Mobile's ―System Info‖ page reads, ―Not Available,‖ in the location where the phone number should be displayed. Three other pictures taken of the T-Mobile cell phone on October 29, 2009 indicate, in fact, that a text conversation was carried out between an officer and one ―x TRACiLiCiOUS x‖ on October 8, 2009. Id. These photographs, taken of the inbox of the phone, show that the inbox contained forty- four other messages that were not photographed by the detectives. Also curiously absent from the collection of photographs are any and all photographs in the outbox, even though the contested text messages were supposedly sent from the T-Mobile phone. Id.
Despite the fact that several officers testified that they never saw any text messages on the T-Mobile cell phone itself, and given that text messages and cell phone technology were particularly significant to this case at its inception, this Court finds it highly unlikely that the Defendant's cell phone remained unexamined while in police custody and prior to the issuance of a proper warrant. In addition, it appeared to this Court that testifying officers knew more about this examination than they were willing to divulge.
A final warrant, obtained almost three years later by Sgt. Gates on June 8, 2012, authorized the creation of an ―extraction report‖ of the contents of the LG cell phone using a Cellebrite software program owned by the Cranston Police Department. The affidavit, signed by Sgt. Gates, was similar in content to the October 2009 warrant affidavits, but was not identically worded. It also contained some of the same inconsistencies as the previous warrant affidavits, in addition to new information regarding the purported necessity of the extraction report. The June 8, 2012 warrant, in full, reads:
Your affiant upon oath states that he has reasons to believe that grounds for such warrant exist and state the following facts on which such belief is founded on the following affidavit.
I, Detective Sgt. Michael H. Gates, under oath do depose and say that I am a member of the Cranston Police Department and I am currently assigned to the Detective Division as an investigator. I have been a police officer for 21 years and I have been assigned to the Criminal Investigation Unit for 8 years. As such, I am charged with the duty of investigating all violations of laws of the State of RI.
On 10/04/2009 at about 0612 hours, Cranston Police responded to 575 Dyer Av, Riverbend Apts., Apt. number B18, with regard to a Medical Emergency; along with Cranston Rescue. Upon arriving there, officers learned there was a six year old male child who was unresponsive and would need immediate attention at Hasbro Childen's Hospital. Trisha Oliver (d.o.b 12/8/82) was present at 575 Dyer Avenue when the Cranston Police arrived, along with her six year old son Marco Nieves, her fourteen month old Jazlyn Oliver, and Michael Patino (d.o.b 1/27/82). The six year old male victim was transported by city rescue workers to Hasbro Children's Hospital. During the morning hours on 10/04/09, it was reported by attending physicians at Hasbro that the type of injuries the child was suffering from were consistent with what is normally seen in abuse cases, and certainly were not sustained by a single accidental strike. Later on that afternoon, it was learned by detective present with family members at Hasbro, the victim has been taken off of life support systems and did expire at 1705 hours.
Responding investigators on 10/04/09 learned that the boy had been experiencing pain and vomiting the previous day, throughout the evening and into the eearly [sic] morning hours on 10/04/09. It was further learned that Michael Patino is the boyfriend of the victim's mother, Trisha Oliver, and shares the 14 month old daughter, Jazlyn, in common with Trisha Oliver.
Sergeant Matthew Kite was among the responding Cranston Police officers. While Sgt. Kite was at the scene, he made several observations including the dark color of the victim's vomit, possibly indicating the extent of injury, and four cellular phones. One of the cell phones was an LG Verizon Sidekick cell phone that Sergeant Kite observed on the kitchen counter in Apartment B18. A second Metro PCS cell phone was first observed by Sergeant Kite in Apartment B18 on the back of the headrest of a couch or above the shoulder of where Michael Patino was seated. The Metro PCS phone was taken from the person of Michael Patino a short time later by Officer Machado at Cranston Police Headquarters. Those two cellular phones were seized by the Cranston Police and assigned evidence room property numbers 09-4995-PR, respectively. Those two phones were secured and stored in the locked Cranston Police BCI evidence room, and have remained in Cranston Police custody undisturbed since. While at Apartment B18, Michael Patino told Sergeant Kite that Trisha Oliver has not called him about the child's condition because he did not have a cellular phone.
Upon investigating the possible causes of the child's condition on 10/04/09, Cranston Police detectives John Cardone and Jean Paul Slaughter interviewed separately both Trisha Oliver and Michael Patino. Trisha Oliver has provided conflicting accounts to rescue, police, and hospital officials earlier in the day on 10/04/09 about her knowledge of the cause of her son's injuries. In a written statement to detective on 10/04/09 Trisha Oliver said on 10/03/09 she texted Michael Patino and asked what had happened to her son, and Patino told her that he went to hit him and the boy moved. Oliver told police that Michael Patino told her that he ended up hitting Marco in the stomach. In a recorded interview sometime later 10/04/09, Ms Oliver was shown text messages that police had viewed that morning on the LG Verizon Sidekick phone. She told police that the LG Verizon phone was hers and that the messages were ones sent from and to her phone (401-486-5573) on 10/3/09, and that she was communicating with Michael Patino about what had happened to her son and that he was experiencing pain and vomiting. In the texts, the incoming texts appear as having come from ―DaMaster‖ whom Ms. Oliver identified as Michael Patino. The designation ―DaMaster‖ has been entered into the memory of the LG Verizon phone.
Following the Cranston Police investigation, the matter was presented to the Providence County Grand Jury. The jury returned an indictment charging Michael Patino with one count of murder in 2010 in indictment number P1-2010-1455A. The case is now expected to be tried before Ms. Justice Savage in the Fall of 2012. Assistant Attorney General Randall White has told your affiant that defendant Patino has indicated through counsel that he intends to assert that the LG Verizon Sidekick phone is his. Sometimtime [sic] after the boy's death on 10/4/09 your affiant obtained a search warrant for the contents of the LG Verizon Sidekick phone from Justice William Clifton of the District Court. The police searched the phone and seized the text messages from it that they had viewed and photographed on the morning of 10/4/09.
The need to corroborate the claim of Trisha Oliver as the person with constructive control, and primary user, of the LG Verizon Sidekick with cellular number 401-486-5573, can be achieved by extracting digitally stored information on the phone, including Ms. Oliver's contact list and other information such as stored photographs, voice mail, text messages, and other types of personal information which would indicate who regularly uses the phone. This can be completed using a hardware and software system made by Cellebrite UFED, and regularly used by trained Cranston Police BCI investigators. In addition to the make and model of the phone, the phone also has other identifying features including a model number of VX9800, and what is considered to be a serial number located behind the battery listed as ESN DEC# 02107143164. These things were not obtained when police searched the LG phone in 2009.
Based on the above information there is cause to believe that the cellular phone ID by phone number 401-486-5573 does belong to victim's mother, Trisha Oliver, and the information contained and stored in the phone is extracted, would verify the claim by Ms. Oliver, that particular phone was hers and used primarily by her prior to and up to the time the Cranston Police seized it. I respectfully request a search warrant be issued for the cellular phone and its stored content in order to corroborate this belief.
Here again, the LG cell phone is referred to as an ―LG Verizon Sidekick.‖ This Court finds it astonishing that the affiant was able to record the model number and serial number of the LG cell phone, yet did not correct the misnomer with which the phone has been referenced since October 4, 2009.
The result of this recent warrant was a thirty-five page report, logged into evidence as State's Exhibit 32, which includes the history of voice mail and text messages and phone calls that were recorded on the LG cell phone. The report does not show a message regarding ―insufficient funds‖ arriving on the LG cell phone on the morning of October 4, 2009, contradicting Sgt. Kite's testimony that the phone ―beeped‖ and displayed that incoming message. The report does, however, include a similar message, sent from the service provider, which reads ―You have insufficient funds to send message,‖ shown to have arrived that morning at 8:09 a.m., indicating that an officer had attempted to send a text message from the phone at the scene prior to obtaining a warrant. This report also shows the aforementioned call to voicemail at 8:09 a.m. that morning, further suggesting that the phone was being explored and manipulated prior to issuance of the initial warrant. The rest of the report appears to match the contents of the LG cell phone that the police already had obtained earlier in the investigation.
E The Continuing Investigation
After Marco Nieves' death at 5:05 p.m.*fn35 on October 4, 2009, Detectives Cardone and Slaughter proceeded with their investigation of what was now considered a homicide. Around 7:45 p.m.,*fn36 they interviewed Rafael Nieves and his then-girlfriend, Alexandria Correia. Though the two had little to say regarding Marco's recent death and the events that preceded it, they discussed Marco's prior hesitations about being with Defendant. Mr. Nieves explained that neither he nor Ms. Correia had seen Marco since August of that year. He continued to describe a voice message which used violent language and which Mr. Nieves claimed was a direct threat from Defendant to Marco, which was unintentionally left on Mr. Nieves' voicemail in January of 2009. Mr. Nieves explained in detail the events that transpired at that time, and stated that he had confronted Defendant about abusing his son after he heard this message. Mr. Nieves described the message to Detectives Cardone and Slaughter explaining, ―... [Mr. Patino] asked him, ‗Marco, is this where you father lives?' and Marco said ‗I don't know,' he's five years old at the time.‖ St.'s Ex. 3. After clarifying for the detectives that, on this particular day, Marco was coming to stay with Mr. Nieves and Ms. Correia for the weekend, Mr. Nieves continued, stating, ―And [Marco]'s like ‗I don't know' and then [Mr. Patino]'s like ‗Marco, I'm going to fuckin' punch you in your fuckin' head,' just like that.‖ Id.
The interview then changed topics and proceeded to address the issue of Mr. Patino's prior abusive behavior toward Marco, insofar as Ms. Correia and Mr. Nieves were aware of it. Mr. Nieves indicated that Marco had mentioned abuse to him ―more than‖ three times in the past. St.'s Ex. 3 & 4. Mr. Nieves then continued with an anecdote in which he discovered a bruise on Marco's back, during Marco's bath time, ―a little before January .‖ St.'s Ex. 3. According to Mr. Nieves, after being asked multiple times, Marco confessed that Defendant had hit him and caused the bruise. Mr. Nieves said that he reported these incidents to the Cranston Police Department in January 2009, which then referred him elsewhere. After giving a detailed verbal account of these incidents, the detectives asked Mr. Nieves to provide a formal, written statement. Id. This statement was dictated by Mr. Nieves to Ms. Correia because, Mr. Nieves explained, ―I'm not a good speller.‖ Id.
That same day, October 4, 2009, Detectives Cardone and Slaughter conducted a second interview of Michael Patino at 9:36 p.m. See St.'s Ex. 71. Mr. Patino read and signed his rights and then immediately asked for a lawyer. The interview concluded immediately. See St.'s Ex. 69 & 70. The police also apparently learned information from Joseph Peters in the early stages of their investigation, relative to Defendant being rough with Marco in the recent past when they brought in groceries to the apartment, although they took no formal statement from Mr. Peters.
On October 13, 2009, Arlene Oliver provided a formal version of the statement she gave to Dr. Fortin on October 4, 2009. In her testimony, Arlene explained that she based her formal statement on information that she had gathered from her daughter at the hospital on October 4, 2009. She stated, ―Trisha told me that that guy hit my grandson.‖ Arlene explained that Trisha Oliver had relayed that information around ―2 or 3‖ in the afternoon that day, but that she did not speak to any police officers about the information. Rather, Arlene claimed that the police obtained the information by eavesdropping on the conversation between she and Trisha Oliver. Arlene dictated her formal statement verbally to Detective Slaughter, who then wrote it down, at Mrs. Oliver's request. In her testimony, she acknowledged that this statement was, in fact, her words, if not her writing.
On August 15, 2012, after the conclusion of the suppression hearing and as this Court worked feverishly to pen this Decision, the State appeared in court to represent that it had secured a warrant on August 2, 2012 from the District Court to again search both the Metro PCS cell phone (St.'s Ex. 16) and the T-Mobile cell phone (St.'s Ex. 18)--this time with the same Cellebrite software that the police had employed on the eve of the suppression hearing, pursuant to the June 8, 2012 warrant, to extract the contents of the LG cell phone. This brought the number of warrants in this case up to thirteen. It asked for permission to withdraw the two cell phones from evidence for that purpose. This software, reportedly not available at the Cranston Police Department at the time of the earlier searches of these cell phones, can reveal the contents of cell phones and the history of their prior use that might not be seen upon an ordinary visual inspection of the cell phones. The Court allowed the cell phones to be withdrawn from evidence for this additional testing, over the objection of the Defendant, but with the requirement that the phones remain in the custody and control of prosecutor Randall White at all times and be tested only in the presence of defense counsel. The parties returned for a hearing on August 17, 2012 to represent that they gleaned some additional information from this visual inspection of these cell phones, but that the application of the Cellebrite software had not been successful in disgorging their contents.
The State then represented that it intended to seek two additional search warrants to test these two cell phones under the auspices of the State Police, using even more sophisticated software. It asked for leave to retain the cell phones for testing, under the same conditions imposed by this Court previously, which this Court allowed. Assuming that the State obtained the two warrants that it requested from the District Court, this would bring the number of warrants in this case up to fifteen.
As the evidence in the suppression hearing closed at the conclusion of that hearing on July 10, 2012, at which time this Court took this matter under advisement, this Court inquired at both the hearing on August 15, 2012, and again at the hearing on August 17, 2012, as to whether the parties expected that any warrants obtained in August 2012, or any subsequent searches of cell phones in evidence conducted pursuant to them, would affect the pending decision. The parties could not answer that question, absent knowledge of the results of the subsequent searches. This Court, therefore, will proceed to decision, letting the proverbial chips fall where they may.
Defendant has filed multiple motions to suppress the text message evidence, the actual cell phones themselves, all of the cell phone records obtained, the phone records of the apartment landline phone, the video recording taken of the apartment, the video recording and transcript of his interview which took place on the morning of October 4, 2009, and his written confession. He argues that all of this evidence was the product of illegal searches and seizures in violation of the Fourth and Fifth Amendments of the United States Constitution and Article 1, Section 6 of the Rhode Island Constitution. Defendant also has filed a motion to suppress the video recording and transcript of his interview and his written confession as being involuntary and obtained in violation of his due process rights under both the United States and Rhode Island Constitutions. In addition, Defendant has filed a motion for a Franks hearing with respect to alleged false statements in all of the warrant affidavits. Defendant further has filed a number of motions in limine to exclude: certain text message evidence, as unduly prejudicial and on grounds of hearsay; the testimony and medical opinion of Dr. Christine Fortin; and certain Rule 404(b) evidence that was the subject of two days of evidentiary hearings at the beginning of the suppression hearing, including the testimony of Rafael Nieves and Joseph Peters and related witnesses.*fn37
Defendant argues, in support of his suppression motions,*fn38 that he has standing to challenge the search of the LG cell phone and the seizure of the cell phones from the apartment because he has a reasonable expectation of privacy and in the apartment, as a frequent overnight guest, and in the LG cell phone, because he purchased it and used it. Defendant further contends that because Sgt. Kite searched the LG cell phone to view the text messages before obtaining a warrant and before Trisha Oliver gave her consent, the search was unreasonable and a violation of the Fourth Amendment. Defendant insists that all the text message evidence, the cell phone records, and his recorded and written statements to the police should be excluded from trial as fruit of the poisonous tree. Lastly, Defendant argues that both his oral and written statements to the police should be suppressed because they were involuntary and obtained pursuant to coercive police tactics in violation of his due process rights under both the Fourteenth Amendment to the United States Constitution and its counterpoint in the Rhode Island Constitution.
The State objects to Defendant's motions. As to its suppression motions, the State asserts that Defendant lacks standing to challenge either the search of the LG cell phone or the seizure of the cell phones from the apartment because Defendant did not live at the apartment and because the LG cell phone belonged to Trisha Oliver. Moreover, the State argues that, even if Defendant has standing, Sgt. Kite's actions in viewing the text messages were objectively reasonable and did not exceed the exigencies of the situation he faced. The State further contends that the text message evidence should be admissible at trial because this evidence was later lawfully obtained from valid warrants that provided an independent source for the discovery of the text messages. Finally, the State argues that Defendant's oral and written confessions were voluntary and should not be suppressed because Defendant was advised of his Miranda rights, knowingly waived them, and the police did not coerce his confessions. As to the Franks motion, the State argues that there is insufficient evidence of falsity, Defendant lacks standing to make the motion, and regardless of the falsity of any statements, no Franks hearing is required because the warrants are supported by probable cause.
This Court convened the suppression hearing and an evidentiary hearing on the Rule 404(b) motions on June 18, 2012 and concluded, after more than three weeks of testimony, on July 10, 2012. In the midst of the hearing, and based on the evidence adduced at the suppression hearing, Defendant moved for a Franks hearing. This Decision will address Defendant's motions to suppress and his motion for a Franks hearing. All other pre-trial motions are reserved until the time of trial.
AMotion to Suppress Text Messages and Other Evidence from Cell Phones
The issues raised by Defendant's motions to suppress cell phone text messages and related evidence are issues of first impression in Rhode Island. These issues involve thoroughly contemporary problems of the relationship between rapidly evolving technology and the law. Not only have our own courts just begun to wade into these waters, but other courts around the country have just begun to put a proverbial toe in the water. See, e.g., State v. Smith, No. K2-10-422A, (Super. Ct. Aug. 16, 2012) (dealing with an expectation of privacy relative to an email account); Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008) (rev'd by City of Ontario v. Quon, 130 S. Ct. 2619 (2010)) (discussing text messages sent and received on a pager as accessed through a service provider); U.S. v. Finley, 477 F.3d 250 (5th Cir. 2007) (involving call records and text messages retrieved from a cell phone); Warshak v. U.S., 490 F.3d 455 (6th Cir. 2007) (dealing with a right to privacy in the contents of e-mails); State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009) (discussing an expectation of privacy in text messages); State v. Clampitt, 364 S.W.3d 605 (Mo. Ct. App. 2012) (discussing text messages obtained from a service provider through investigative subpoenas); State v. Hinton, 2012 WL 2401673 (Wash. App. Div. June 26, 2012) (considering privacy rights as they apply to the exchange of text messages).
Even the United States Supreme Court has struggled with the legal challenges raised by emerging technology, most especially in the realm of cellular phones and their contents. See City of Ontario v. Quon, 130 S. Ct. 2619 (2010). Indeed, in City of Ontario v. Quon, the parties asked the high court to decide whether text messages should be afforded Fourth Amendment privacy protection. 130 S. Ct. at 2629. But the Supreme Court declined, choosing instead to decide the case on narrower grounds and allow this question to percolate in the lower courts. Id. at 2629-30 (assuming, without deciding, that Quon had a reasonable expectation of privacy in his text messages, but finding that a search of his government-issued pager by his government employer was justified by the special needs of the workplace such that it did not violate the Fourth Amendment). It specifically stated that:
[t]he court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment . . . The judiciary risks error by elaborating too fully on Fourth Amendment implications of emerging technology before its role in society has become clear.
130 S. Ct. at 2629. (citing Olmstead v. U.S., 277 U.S. 438 (1928) (holding that the Fourth Amendment does not protect private telephone conversations), overruled by Katz v. U.S., 389 U.S. 347, 353 (1967) (holding that, under the Fourth Amendment, there is a reasonable expectation of privacy in a telephone conversation). In staying its hand, the Supreme Court deprived this Court of the very guidance that it seeks today to resolve the novel and important issues presented. And yet, it is when the state courts are asked to write on a blank slate that they have the greatest responsibility to the litigants and, even more importantly, to the citizenry to proceed carefully and honor wholly the core precepts of our state and federal constitutions.
In treading into these unchartered waters, this Court is mindful that the Fourth Amendment concerns implicated by law enforcement's use of the contents of cell phones have become more urgent with the increasing ubiquity of cell phones and text messages. For context, 83% of American adults--4 of 5 people--own a cell phone. Pew Research Center, Americans and text messaging (Sep 19, 2011) [hereinafter Pew Research Center 2011 Report].*fn39 The cell phone has, in effect, ―moved beyond a fashionable accessory and into the realm of life necessity.‖ Id.; see also Mireille Dee, Getting Back to the Fourth Amendment: Warrantless Cell Phone Searches, 56 N.Y.L. Sch. L. Rev. 1129, 1133-1135 (2011/2012) (detailing the invention and development of cell phones) [hereinafter Mireille Dee, Getting Back to the Fourth Amendment].
Text messages, defined as short electronically-transmitted written communications between mobile devices, are closely intertwined with the popularity and adoption of cell phones. See Katherine M. O'Connor, : O OMG They Searched My Txts: Unraveling the Search and Seizure of Text Messages, U. Ill. L. Rev. 685, 687 (2010) [hereinafter Katherine M. O'Connor, OMG They Searched My Txts]. The typical adult sends or receives an average of 41.5 messages per day. Pew Research Center 2011 Report at 2. Nationwide, an average of 4.1 billion text messages are exchanged daily. Br. of Electronic Frontier Foundation et. al. as Amici Curiae in Support of Resp'ts, City of Ontario, Cal. v. Quon, 130 S. Ct. 2619 (2010), at 7, [hereinafter Br. of EFF].
―According to a 2008 Nielson Mobile survey, U.S. mobile subscribers ―sent and received on average 357 text messages per month [in the second quarter of 2008], compared with making and receiving 204 phone calls a month.‖ Br. of EFF at 8.
Moreover, text messaging stands to become an increasingly prominent aspect of society. Ninety-five percent of young adults, ages 18-29, use text messaging. Pew Research Center 2011 Report at 3. This emerging group sends or receives an average of 87.7 daily text messages. Id. American teenagers, perhaps more importantly, send an average of 3,146 text messages monthly. Br. of EFF at 5. According to one media analyst, ―texting is the form of communication for the next generation.‖ Br. of EFF at 7. Texting has largely replaced calling as the preferred form of communication by many young adults, particularly because many service providers offer plans that make it less expensive to text than to call. See Joel Mathis, AT&T, Sprint, and Verizon: The plans compared, (Oct. 6, 2011).*fn40
As Americans have turned to their cell phones to communicate, law enforcement has taken notice. Cell phones now represent a ―powerful tool...to cull information on a wide range of crimes.‖ Eric Lichtblau, More Demands on Cell Carriers in Surveillance, New York Times, (July 8, 2012).*fn41 Accordingly, law enforcement agencies made 1.3 million requests for consumer phone information--including text messages--from the nine largest cellular carriers in 2011. Press Release, Congressman Ed Markey, Markey: Law Enforcement Collecting Information on Millions of Americans from Mobile Phone Carriers (on congressman's website) [hereinafter Markey Congressional Inquiry].*fn42 In doing so, law enforcement has taken advantage of information that these companies have preserved, often without the knowledge or consent of their customers,*fn43 knowing that the legislature or the courts may some day close their window of opportunity to access this data. See generally Markey Congressional Inquiry; 2011 R.I. S.B. 3074 (NS), Rhode Island 2012 Legislative Session (proposed by Rep. Edith H. Ajello, D-Providence, January 12, 2012) (vetoed by Gov. Lincoln D. Chafee, Jun 25, 2012) [hereinafter R.I. Cell Phone Proposed Legislation] (requiring a warrant before cell phones may be searched incident to an arrest). Indeed, this Court, though not unfamiliar with cell phones and text messaging, was stunned to learn during the evidentiary hearing in this matter that one cellular carrier that figures prominently in this case--Verizon--retains a record of the actual text messages sent and received by its customers, while another cellular carrier involved here--T-Mobile--does not.
Attempting to reconcile the difficult dichotomy between protecting the privacy of cell phone data and enabling law enforcement, the Rhode Island legislature recently approved a bill mandating a warrant in order to search the contents of a cell phone incident to an arrest. See R.I. Cell Phone Proposed Legislation. Governor Lincoln D. Chafee vetoed the bill, stating that the courts, not the legislature, were better suited to resolve the question of Fourth Amendment privacy rights in electronic communications. See Katie Mulvaney, Chafee Vetoes Search-Warrant Bill, Providence Journal, June 27, 2012. Mindful of these unsettled waters, this Court begins its analysis and, as this case presents issues of first impression, looks to the jurisprudence of its sister states and federal courts for guidance.
1 Fourth Amendment Background
The Fourth Amendment of the United States Constitution provides that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The text of Article I, Section 6 of the Rhode Island Constitution is nearly identical to the Fourth Amendment and generally has been interpreted in the same manner.*fn44 States are free, however, to adopt a higher standard of protection than the constitutional floor established by the Fourth Amendment. In certain limited areas, therefore, the Rhode Island Supreme Court has held previously that Article I, Section 6 of the Rhode Island Constitution provides greater protection for defendants than its federal analog. See State v. Maloof, 114 R.I. 380, 390, 333 A.2d 676, 681 (1975) (dealing with wiretaps).*fn45 As a general rule, the Rhode Island Supreme Court has stated that ―[t]he decision to depart from minimum standards imposed by the Fourth Amendment should be made guardedly and should be supported by a principled rationale‖ and should be limited to areas where the United States Supreme Court's jurisprudence is uncertain.*fn46 State v. Werner, 615 A.2d 1010, 1014 (R.I. 1992) (internal quotations omitted) (applying the federal rule that allows a warrantless search of an automobile, even in the absence of exigent circumstances, where there is probable cause to believe that the automobile holds evidence of a crime).
The purpose of the Fourth Amendment is to ―prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.‖ U.S. v. Martinez-Fuerte, 428 U.S. 543, 554 (1976). The Fourth Amendment thus ―protects people from unreasonable government intrusions into their legitimate expectations of privacy.‖ U.S. v. Chadwick, 433 U.S. 1, 7 (1977). The fundamental inquiry when considering Fourth Amendment issues is whether the search or seizure was reasonable under the totality of the circumstances. See Cooper v. California, 386 U.S. 58, 59 (1967). The United States Supreme Court has recognized that, in deciding questions of reasonableness, courts should consider ―[r]apid changes in the dynamics of communication and information transmission . . . not just [in] the technology itself but in what society accepts as proper behavior.‖ See Quon, 130 S. Ct. at 2629. ―The Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.‖ U.S. v. Warshak, 631 F.3d 266, 285 (6th Cir. 2010). ―In the application of a constitution our consideration cannot be only what has been but of what maybe.‖ Olmstead v. U.S., 277 U.S. at 474. (Brandeis, J., dissenting) (quoting Weems v. U.S., 217 U.S. 349, 373 (1910)). Looking backward to Fourth Amendment precedent and forward in its application in the face of emerging technologies, this Court turns to the issues in this case.
As a threshold matter, this Court must determine whether the Defendant has standing to challenge the search and seizure of certain phones and their contents. The State contends that Defendant lacks standing to mount such a challenge because he did not have a reasonable expectation of privacy in the apartment where the police seized and searched certain phones. Specifically, the State argues that Defendant did not have a reasonable expectation of privacy in the apartment because he did not live in the apartment, did not have a key to it and--by his own admission--had not stayed overnight there on the night of October 3, 2009 and into the early morning hours of October 4, 2009. The Defendant counters that he did have a reasonable expectation of privacy in the apartment because he frequently stayed there.
The State further maintains that Defendant did not have a reasonable expectation of privacy in the text message contents of the LG cell phone that the police seized and searched in the apartment because the phone belonged to, and was primarily, if not exclusively, used by Trisha Oliver.*fn47 Defendant disagrees, arguing that the LG cell phone belonged to him and Trisha Oliver only used the phone with his permission. The parties' arguments are premised on the assumption that the at-issue text messages are from the Defendant. This Court will address each of these standing issues in seriatim.
It is well-settled that the Fourth Amendment protects people, not places. See Katz v. U.S., 389 U.S. at 351. ―What a person knowingly exposes to the public, even in his own home . . . is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be considered constitutionally protected.‖ Id. (citations omitted). ―Fourth Amendment rights are personal rights‖ and ―cannot be ‗asserted vicariously by a defendant merely because he or she may be aggrieved by the introduction of damaging evidence.'‖ State v. Quinlan, 921 A.2d 96, 109 (R.I. 2007) (quoting State v. Bertram, 591 A.2d 14, 18 (R.I. 1991)). The burden thus lies with the defendant to establish by a preponderance of the evidence the ―requisite standing to challenge the legality of the search.‖ Id.; State v. Hershenow, 680 F.2d 847, 855 (1st Cir. 1982).
To establish standing, a defendant must show that he or she had a reasonable expectation of privacy in the area that the police searched or the item that the police seized. See U.S. v. Lipscomb, 539 F.3d 32 (1st Cir. 2008); State v. Casas, 900 A.2d 1120, 1129-30 (R.I. 2006). A reasonable expectation of privacy is determined through a two-tiered analysis. First, a defendant must show a subjective expectation of privacy in the area searched or item seized; second, a defendant must demonstrate that his or her subjective expectation of privacy is one society recognizes as reasonable, i.e. that his or her expectation of privacy was objectively ―justifiable‖ under the circumstances. See Smith v. Maryland, 442 U.S. 735, 740 (1979); Quinlan, 921 A.2d at 109. In determining whether a reasonable expectation of privacy exists, courts consider several factors, of which no single one is determinative. See Quinlan, 921 A.2d at 109. Among the factors that courts have considered are whether the person possessed or owned the area searched or the property seized; his or her prior use of the area searched or the property seized; the person's ability to control or exclude others' use of the property; and the person's legitimate presence in the area searched. See id. In assessing these factors, courts do not consider what the police officer knew at the time they conducted the challenged search, but rather the objective, ex post facts as known to the court when considering the motion to suppress. See Wayne R. LaFave, Search & Seizure § 11.3.
(a) Defendant's Expectation of Privacy in the Apartment
First, with regard to Defendant's standing to challenge the search of the apartment and the searches and seizures of the phones from the apartment, it has been established that a person may have a sufficient expectation of privacy in a place other than where he or she was legitimately staying overnight. See Minnesota v. Olson, 495 U.S. 91, 97-98 (1990). Courts also have found that a person has a reasonable expectation of privacy in a residence where he or she regularly visits and stays overnight, even if his or her stays are not continuous. See, e.g., Commonwealth v. Wagner, 406 A.2d 1026 (Pa. 1979) (finding defendant had standing in the house belonging to his fiancee as it was ―tantamount to being [his] residence (or at least one of his residences)‖). Moreover, a place need not have been the place where a person slept overnight for that person to have a legitimate expectation of privacy in that place. See id. at 99 (discussing Katz, 389 U.S. 347, where the United States Supreme Court found that a person had an expectation of privacy in a telephone booth, not because he slept there, but because it was ―a temporarily private place [where] momentary occupants' expectations of freedom from intrusion are recognized as reasonable[.]‖) (internal citations omitted).
In the instant case, Defendant presented substantial evidence to establish that he had a reasonable expectation of privacy in the apartment. The testimony of Defendant's sister, Angie Patino, indicated that Defendant regularly visited and frequently stayed overnight at the apartment, statements which are supported both by the relationship between Trisha Oliver and Defendant, the fact that the Defendant's biological daughter, Jazlyn, lived there, Defendant's action in answering the landline phone in the apartment when it rang, and the presence in the apartment of cell phones that the State suggests belonged to him and were located there. In addition, Joseph Peters, a neighbor, testified that he saw the Defendant bringing in groceries to the apartment with Marco Nieves approximately two weeks before the child's death. Furthermore, it appears that Defendant stored personal belongings at the apartment, e.g., the two bags of clothing that Angie Patino later removed from the apartment. The photographs taken of the apartment also reveal men's clothing and shoes in the closet. See St.'s Ex. 6. Defendant also stated, during his interrogation, that he slept at the apartment for a couple of hours after arriving there in the early morning hours of October 4, 2009. Indeed, the police found him in the apartment at around 6:30 a.m. when they responded to the 911 call. Finally, even the affidavits for warrants that the police prepared to obtain the contents of cell phones seized from the apartment all assert that the Defendant ―often lives‖ at the apartment. See, e.g., St.'s Ex. 42 (warrant to Verizon for phone records of Trisha Oliver); St.'s Ex. 34 (warrant for contents of Metro PCS phone). These facts all militate in favor of Defendant having standing in the apartment.
Moreover, the State's argument that Defendant could not have an expectation of privacy in the apartment because it was not in his name and he did not have a key to it is focused too narrowly on the actual ownership of the premises--a view explicitly rejected by the United States Supreme Court in Olson. See 495 U.S. at 96-97. In addition, it is disingenuous of the State to claim that the Defendant lacks standing in the apartment because he is not its owner or occupant where the police emphasized his regular occupancy to assist them in securing search warrants for the premises.
In totality, the evidence is sufficient to establish that Defendant used the apartment as one of his residences. See Wagner, 406 A.2d at 554-55. ―The pertinent fact for purposes of judging the privacy expectation is that [he was] engaging in the necessary, intimate activities of daily life while staying in a dwelling provided by someone else, activities ordinarily conducted in secure, enclosed spaces and which our society regards as private.‖ State v. Simmons, 714 N.W.2d 264 (Iowa 2006). This Court is thus satisfied that Defendant has established a reasonable expectation of privacy in the apartment sufficient to confer upon him the standing required for him to challenge its search and the seizure of items found there.
(b) Defendant's Expectation of Privacy in the LG Cell Phone
The State's next contention is that Defendant lacks standing to challenge the search of the LG cell phone in the apartment because the phone belonged to and was primarily used by Trisha Oliver. Its argument in this regard is impliedly based on analogizing a cell phone to a container. As courts have frequently analogized cell phones to containers to hold that people have a reasonable expectation of privacy in the contents of their own cell phones, the State argues that if Defendant does not have a proprietary interest in the LG cell phone, then he cannot have a reasonable expectation of privacy in its contents--namely, the text messages he allegedly sent to his girlfriend on the LG cell phone. See, e.g., U.S. v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (equating cell phones to containers to hold that a cell phone could be lawfully searched incident to an arrest); U.S. v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. 2009) (―[a]n owner of a cell phone generally has a reasonable expectation of privacy in the electronic data stored on the phone.‖). The State, more simply put, contends that a possessory interest in an item held within a container--here, the Defendant's text messages--does not provide standing to challenge a search of the container from which the item was seized--here, the LG cell phone allegedly belonging to Trisha Oliver. See Rawlings v. Kentucky, 448 U.S. 98, 104-106 (finding that defendant did not have standing to challenge the search of his girlfriend's purse, notwithstanding the fact that he claimed ownership of the drugs found within the purse). According to the State, Defendant must establish a separate privacy interest in the LG cell phone itself for him to have standing to contest the search and seizure of his text messages contained within it.
To address this argument, this Court must examine the nature of a cell phone to determine if it fits within the definition of a container under United States Supreme Court precedent. More importantly, it must determine if the nature of a cell phone militates in favor of focusing the standing inquiry on a person's privacy rights in the contents of the phone rather than beginning and ending the standing inquiry with the device itself.
(i) Cellular Phones as Containers and Text Messages as Their Contents Any discussion of whether cell phones should be analogized to containers must account for the technological realities of today's cell phones.
[M]odern cellular phones have the capacity for storing immense amounts of private information. Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video, and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through email and text, voice and instant messages.
United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007). Information that a person otherwise would be incapable of carrying in his or her pocket is now easily accessible, at any moment, via cell phones. See Joshua A. Engel, Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices, 41 U. Mem. L. Rev. 233, 260 (Winter 2010). ―[T]he vast amount of information that may be stored digitally [in a cell phone or in the cloud as accessed through a cell phone‖ far exceeds traditional [physical boundaries].‖ Id. (citing Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 Santa Clara L. Rev 183 (2010)). Thus, a different notion of scope, virtual rather than spatial, is at play when discussing searches of cell phones and other electronic devices. Id.
In New York v. Belton, the Supreme Court defined a container as ―any object capable of holding another object.‖ 453 U.S. 454, 460 (1981) (holding that the contents of containers found within the passenger compartment of an automobile may be searched incident to lawful arrest); see U.S. v. Robinson, 414 U.S. 218 (1973) (holding that a cigarette package containing drugs is a closed container). Notwithstanding this definition, which implies that a container must hold a physical object, federal courts first confronted with the question, two decades ago, of whether to analogize electronic devices to containers were quick to employ it. See, e.g., U.S. v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (adopting the holding of Chan that a pager is a closed container); U.S. v. Chan, 830 F. Supp. 531, 534 (N.D. Cal. 1993) (likening a pager to a closed container); U.S. v. David, 756 F. Supp. 1385, 1390 (D. Nev. 1991) (holding that a computer memo book is a closed container). In so doing, these courts latched on to an analogy that was easy to apply, but which, in hindsight and given the evolution of technology from pagers to cell phones, appears inapt.
A more enlightened approach--and one that is beginning to be embraced by commentators and the courts--is to recognize that cell phones and other electronic devices do not fit the definition of a ―container‖ articulated by the United States Supreme Court in Belton. See State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009) (rejecting container analogy as applied to cell phones); see also Mireille Dee, Getting Back to the Fourth Amendment. This approach acknowledges the fact that ―[u]nlike mere physical objects, cell phones store information in a digital format, allowing for an incredible amount of personal information to be stored on a very small device.‖ Mireille Dee, Getting Back to the Fourth Amendment at 1159. As the Ohio Supreme Court has stated, in declining to analogize cell phones to containers, ―[e]ven the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container.‖ State v. Smith, 920 N.E.2d at 954. Hence, because a cell phone allows access to digital information, rather than storing physical objects, it necessarily follows under this approach that a ―cell phone is not a container for purposes of Fourth Amendment analysis.‖ Id.
This Court finds this logic highly persuasive. A cell phone is the device by which text messages are sent, received, and stored. It is not, on accord of its physical dimensions or functionality, a closed container. Also, text messages are not a tangible object that fit within a cell phone. They are, in fact, information born in non-tangible digital form. In this Court's view, therefore, a cell phone is better thought of not as a container but as an ―access point‖ to potentially boundless amounts of digital information.
Therefore, the more pertinent question in this Court's opinion--and one that is conspicuously absent from the State's discussion of standing--is not whether Defendant has standing in the LG cell phone itself but whether he has a reasonable expectation of privacy in the at-issue text messages stored within that phone. See Katz v. U.S., 389 U.S. 347 (1967) (stating that the Fourth Amendment ―protects people‖ and that privacy is determined per a two-tiered subjective and objective analysis of the surrounding circumstances). Indeed, almost half a century ago, this is precisely where the United States Supreme Court focused in determining whether a person had a reasonable expectation of privacy in an old-fashioned, pre-text message form of communication--a telephone call placed from a telephone booth. Id. In Katz, the Supreme Court rejected the government's argument that the Fourth Amendment issue presented could be resolved by finding that the telephone booth from which the petitioner placed his phone call was not a constitutionally protected area. It made clear that the ―the premise that property interests control the right of the government to search and seize has been discredited.‖ Id. at 353 (quoting Warden v. Hayden, 387 U.S. 294, 304 (1967)). Instead, the Court ruled that the Fourth Amendment protects people, and not simply areas, so that it matters not that the telephone booth was open to the public. Id. What the caller in the phone booth sought to exclude when he entered the phone booth was not the intruding eye--it was the uninvited ear. He did not shed his right simply because he made his calls from a place where he might be seen . . . One who place[s] a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.
Id. at 352. Similarly here, Defendant's property right, or lack thereof, in the LG cell phone at issue should not be controlling. What should control are the contents of the communications rather than the device used to communicate. Though text messages, unlike oral telephone conversations, are meant to be read rather then listened to, they implicate the same issues. What Defendant ―sought to exclude when he [allegedly sent text messages to that phone]‖ was not the ―uninvited ear‖ but the ―intruding eye.‖ Id. He did not ―shed his right simply because he [allegedly sent his texts] to a place that [they] might be seen.‖ Id. ―One who [sends a text] is similarly entitled to assume that [the] words [that he or she writes] will not be broadcast to the world.‖ Id. ―To read the Constitution more narrowly is to ignore the vital role that [text messaging] has come to play in private communication.‖ Id.
Indeed, it is arguable that the United States Supreme Court implicitly adopted this view in Quon. 130 S. Ct. at 2630. While it declined to determine whether a person has a reasonable expectation of privacy in his or her text messages, the manner in which it left that issue for another day is instructive; it did not assume, without deciding, that a person has a reasonable expectation of privacy in the electronic device itself--there, a pager-- but instead presumed that a person has a privacy interest in the contents of the device-- namely, text messages. In fact, the courts below it had not only framed the issue in that same manner but had decided that a person does have a reasonable expectation of privacy, not in the device, but in his or her text messages. See Quon v. Arch Wireless Operating Co., Inc., 529 F.3d at 906-908; Quon v. Arch Wireless, 445 F. Supp. 2d 1116 (C.D. Cal. 2006) (finding that Quon did have a reasonable expectation of privacy in the contents of the text messages sent to and from the government-provided pager). In framing the issue in that regard, the Supreme Court suggested, as does this Court today, that it is the content of the communication, and not the device used to communicate, that is important for the privacy analysis under the Fourth Amendment.
(ii) Text Messages and a Fourth Amendment "Workaround"
It is this Court's view that if text messages were not afforded privacy protection, regardless of their form or method of discovery, the wall of protection provided by the Fourth Amendment would be rendered 10 feet high by 10 feet long--an impotent defense from unreasonable search and seizure. The constitutional restrictions placed on governmental intrusion effectively could be avoided, so to speak, by simply maneuvering around the ten feet of length or height of the wall to seize the communication from another untargeted party or source. All that the police would have to do is to search a cell phone in which a person has standing, without a warrant, and then find the corresponding cell phone and obtain the same information from its owner or service provider.
It is a technological truth that ―copies‖ of any particular text message may be accessed from multiple places--the sending phone, the receiving phone and, perhaps, the service provider's records. Absent a grant of standing in the text messages themselves, law enforcement, in effect, would possess an easily effectuated and legally substantiated workaround to the core privacy protections of the Fourth Amendment. The aggrieved party before the court would lack standing, while the other participating party, for all practical purposes, would lack the motivation to challenge the constitutional violation on account of burdens including, but not limited to, obtaining an attorney, paying legal fees, spending time in court, and potentially derailing the prosecution of a crime. It further follows that the government's violation would, in some scenarios, be likely to escape review because the party whose cell phone was actually searched might lack knowledge of the violative conduct, might not be able to prove it, or might perceive any injury from a violation as unworthy of pursuit.
Additionally, given the extent and amount of personal information available within cell phones and text messages, law enforcement also would be encouraged to partake in ―fishing expeditions.‖ Information and evidence could be culled aggressively from persons only tenuously connected to an investigation without worry that such search is at all, legally speaking, improper. It would therefore be an elevation of form over substance--ignoring the technological realities of text messages--to view a cell phone and the text messages it contains as one and the same for purposes of analyzing an expectation of privacy sufficient to confer standing.
This Court does not idly posit this concept of a ―workaround‖ and the prospect of a covert fishing expedition. Indeed, given the state of the evidence in this case, that may be precisely what happened here. Notwithstanding a near month-long evidentiary hearing and the parade of Cranston police officers who testified, this Court knows little more today than it did before the suppression hearing about the whereabouts of the text messages that correspond to those text messages that the police found on the LG cell phone allegedly belonging to Trisha Oliver. The State claims that the Defendant sent those corresponding text messages to the LG cell phone from his cell phone. Yet, there is no evidence before this Court that the cell phones in evidence attributed to the Defendant --the Metro PCS cell phone and the T-Mobile cell phone--contain the corresponding text messages or that those text messages could have been seen on the cell phones at the time the police seized and searched them on October 4, 2009.
Indeed, the way in which the police handled the evidence in this case suggests that they have so compromised its integrity that it may not be possible to determine what text message evidence was on the Metro PCS and T-Mobile cell phones and visible at the time the police seized and searched them. After the police seized these two cell phones, they literally ―pocketed‖ the evidence, carrying them between the station and the scene and even to the house of the warrant-signing Judge. They searched the cell phones, charged them and used them to make calls, and ultimately ―secured‖ them in unsealed, little brown paper lunch bags, counter to protocol, with no attempt to ensure their unbroken chain of custody. Unlike the LG cell phone in evidence, the police did not photograph the text message contents of these two cell phones as it appeared on those cell phones at the time of seizure. There is no evidence of what SIM card was in what cell phone when the police seized the cell phones.*fn48 Only later, in some instances well after the casual seizure of the cell phones, did the police photograph limited evidence of their alleged contents and request evidence of their alleged contents from cell phone service providers' records. Yet, they did so pursuant to warrants that contain inconsistent sworn statements by police officers as to where and when the police seized each phone. Again, unlike the LG cell phone, the police never sought to extract the contents of the Metro PCS and T-Mobile cell phones prior to the suppression hearing--a sophisticated process that might demonstrate what historical text message information is contained on each cell phone.
In addition, the State did not fill this evidentiary void with any testimony at the suppression hearing. While the testimony was often quite evasive, if not wholly lacking in credibility, no officer admitted that he had ever seen the text messages corresponding to those text messages found on the LG cell phone. Yet, the testifying police officers could not exclude the possibility that the corresponding text messages existed on the T- Mobile cell phone or the Metro PCS cell phone or that the police had seen those text messages.
It thus is quite likely--as this Court will discuss at length later in this Decision-- that the police illegally seized and searched the Defendant's cell phone on October 4, 2009. It is possible, though it cannot be proven definitively, that their illegal search of the contents of that cell phone revealed the text messages corresponding to those text messages found on the LG cell phone. Notwithstanding that possibility, however, the police have deprived the Defendant of the evidence needed to prove that fact. As a result, the Cranston Police Department may have effectuated a workaround--revealing only evidence of the text messages in which the State claims the Defendant lacks standing-- namely, the text messages on the LG cell phone--while depriving the Defendant of the very evidence that the State claims he needs to prove standing--namely, proof that the corresponding text messages are on his cell phone and could have been viewed and, in fact, were viewed by the police at the time of their search. This prospect can turn the law of standing on its head.
The State should not be able to place the burden on the Defendant to prove that his text messages were on his cell phone at the time the police illegally seized and searched his cell phone--potentially the ultimate issue as to his guilt--in order to prove that he has standing to contest the illegality of that search. When the salient evidence necessary to prove standing is within the control of the State, it should have the burden to disprove that the police engaged in a workaround or otherwise deprived the Defendant of the evidence that he needs to prove standing in the device. In this case, the State would be hard-pressed to meet that burden of proof.
The prospect of a workaround, therefore, in theory or in actuality, is yet another reason to reject analogizing cell phones to containers in defining the standing inquiry. Were this Court to confine the standing inquiry to the device itself, as the State argues, it could unwittingly encourage the police to employ the workaround--routinely searching cell phones surreptitiously without a warrant, using any incriminating evidence found on the cell phone to locate that evidence on the corresponding electronic device (or in its records) in which a defendant had no standing, and then hiding behind standing to block a defendant's ability to challenge the evidence that the police could not have obtained in the absence of an unconstitutional search and seizure. The better approach is to focus the standing inquiry on a defendant's privacy interest in the fruits of the illegal search - here, the text message contents of the device.
Were this Court to rule to the contrary, and analogize the LG cell phone to a container, it then would be required to determine whether Defendant demonstrated a reasonable expectation of privacy in that cell phone itself. The evidence at the hearing on this issue was controverted. There was evidence that Defendant purchased the LG cell phone originally and there was at least some evidence in the call records for this cell phone indicating that he used that phone on several occasions, e.g., the calls made to and received from the apartment landline and the photographs stored on the cell phone that appear to have been taken by someone other than Trisha Oliver (and presumably the Defendant). On the other hand, Defendant stated in his police interrogation that the phone number attached to the LG cell phone belonged to Trisha Oliver. The contact list on this cell phone also appears to contain her list of contacts, and there is evidence of phone calls to the persons on this list from this phone. It also appears that she allegedly received text messages from the Defendant on this cell phone. In addition, after the police searched this cell phone, they allegedly sought and received Trisha Oliver's consent to search it.
It appears from this evidence, therefore, that the Defendant owned the phone and occasionally used it, but that, with his knowledge and consent, Trisha Oliver was the primary user of the phone and that it was primarily under her control. Absent evidence that Defendant retained a possessory or ownership interest in the phone after its purchase or that he granted Trisha Oliver only permissive use of the phone while retaining the ability to control its use or exclude her use of it, this Court would be constrained to conclude that Defendant has failed to demonstrate a sufficient privacy interest in the LG cell phone to establish standing in the device itself.
(c) Defendant's Expectation of Privacy in the Contents of His Communications
(i) Text Messages and the Seminal Katz Test
Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy.
Quon, 130 S. Ct. at 2630.
With the issue not yet definitively resolved, however, this Court will apply the seminal Katz test to determine Defendant's expectation of privacy in his alleged text messages. Specifically, the Court will explore the extent to which Defendant has indicated a subjective expectation of privacy in the text messages on the LG cell phone and whether such expectation of privacy is ...