Warrant text messages darren chaker

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC. SUPERIOR COURT
(Filed – September 4, 2012)
STATE OF RHODE ISLAND :
:
V. : C.A. NO.: P1-10-1155A
:
MICHAEL PATINO :

DECISION

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

1

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

2

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.

I

Facts and Travel

A

Initial Investigation

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.1 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

1
The witnesses who testified in connection with the Defendant‘s suppression motions
included: Detective Peter Souza, Sergeant Michael Kite, Officer Jeremy Machado,
Sergeant Edward Walsh, Detective Wayne Cushman, Sergeant Michael Gates, Officer
Ryan Shore, Detective Jean Paul Slaughter, Detective John Cardone, Robert Oliver,
Arlene Oliver, and Angie Patino. The witnesses who testified in connection with the
parties‘ motions filed pursuant to Rule 404(b) of the Rhode Island Rules of Evidence
included: Guida Andrade, Rafael Nieves, Letitia Nieves, Alexandria Correia, Officer
Jeremy Machado, and Joseph Peters.

3

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.,2 Trisha Oliver

placed a frantic 911 call3 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.

2
See St.‘s Ex. 55 (the call records for Trisha Oliver‘s home telephone, which were later
obtained through a search warrant, (St.‘s Ex. 53), show that she called 911 at 6:08 a.m.);
St.‘s Ex. 6 (the tape of the 911 call that corroborates the time of the call).
3
See St.‘s Ex. 6 (which includes an approximately ten-minute audio recording of the 911
call and the dispatch calls that followed).

4

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.4 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.5

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.6 Sgt. Kite remained on the scene in the

4
A photograph taken approximately two hours after Sgt. Kite‘s tour of the apartment
shows the contents of the toilet. See St.‘s Ex. 8.
5
It is important to note at this juncture that this Court is unclear what conversations the
officers on scene may have had with Trisha Oliver and with each other before Trisha
Oliver‘s departure and what investigation the officers may have conducted at the scene in
its early stages. Trisha Oliver did not testify before this Court at the evidentiary hearing,
nor did Officers Aldrich, Lee, or Carroll.
6
Testimony given by Sgt. Kite and other officers indicated that some, if not all, of the
officers did not sign themselves in and out of the scene on the Crime Scene Roster. This

5

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;7 a Metro PCS Kyocera cell phone8 on the dining room

table; a black T-Mobile Sidekick cell phone9 on the back headrest of the couch, near

where Mr. Patino was sitting; and an iPhone on the far armrest of the couch.10

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

is evidenced further by the fact that the roster was not created until approximately 6:30
a.m., but some of the times on the document precede its creation. Sgt. Kite testified that
he personally filled out the first six entries, including, in order of their appearance on the
document: Dan Lee, Matt Kite, Kim Carroll, Seth Aldrich, Cranston Fire Department,
and Michael Patino. After these entries, the Court is unclear who maintained the roster.
7
State‘s Exhibits 12, 13, and 14 show the LG cell phone on the kitchen counter where
Sgt. Kite claims to have seen it shortly after arriving at the apartment. The LG cell
phone, itself, was entered as evidence in this hearing as State‘s Exhibit 15A. This Court
notes that the evidence bag in which the LG cell phone was presented to the Court also
includes its charger—a fact that the police could not readily explain. It was unclear from
the testimony how the charger got in the bag, from where it came, and who put it in the
bag and why.
8
The Metro PCS Kyocera cell phone is State‘s Exhibit 16.
9
The black T-Mobile Sidekick cell phone is State‘s Exhibit 18.
10
State‘s Exhibits 10 and 11, photographs of the living room in Trisha Oliver‘s
apartment, from two different angles, show the iPhone on the armrest of the couch where
Sgt. Kite claims to have seen it before 7:15 a.m. The iPhone is State‘s Exhibit 17.

6

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.11 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.

11
The landline telephone is State‘s Ex. 19.

7

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.

8

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.12 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.13 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

12
Prior to and throughout this hearing, there were blatant inconsistencies in the evidence
about which cell phones were seized from the apartment. Sgt. Kite testified that the cell
phone that was missing after Defendant‘s departure from the apartment was a Metro PCS
cell phone. Likewise, the many warrant affidavits mention that a Metro PCS cell phone
belonging to the Defendant was taken from him while he was in police custody. Yet, that
cell phone appears on the B.C.I. seizure report and photographs taken at the apartment at
9:22 a.m. reveal that the Metro PCS cell phone was on the dining room table at the
apartment at that time. In other testimony and at least one warrant affidavit, it says that it
was the T-Mobile cell phone that was taken from the Defendant‘s person.
13
State‘s Exhibit 32, the extraction report of the LG cell phone that was created pursuant
to the June 8, 2012 warrant, reveals a detailed account of the contents of the phone,
including: incoming/outgoing calls, texts messages sent/received, alerts from the service
provider, and any other action which occurred on the device and which remained on the
device at the time of extraction. This report shows a phone call made from the LG cell
phone, number (401) 486-5573, to its voicemail account at 8:09 a.m., which lasted 15
seconds. Due to the absence of all of the apartment‘s regular residents at this time, this
Court finds it most likely that an officer from the Cranston Police Department executed
this call during the course of the police investigation in the apartment that morning.

9

Souza of B.C.I. arrived at 7:15 a.m. and 8:32 a.m., respectively.14 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.15

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.

14
As referenced previously, none of the listed parties signed themselves in and out of the
roster at their respective arrival and departure times.
15
See photographs 0008-0015, 0053, 0055, and 0060 from State‘s Ex. 6 to view the
change in position of the Metro PCS cell phone.

10

B

The Interrogation

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.16 See St.‘s Ex. 68.17 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

16
During this interrogation, Detectives Cardone and Slaughter each left the interview
room a number of times, and the information gained during these absences is of particular
interest to this Court, as it may pertain directly to the Defendant‘s motions to suppress.
17
State‘s Exhibit 68 is the CD of the interview. State‘s Exhibit 66, marked only for
identification, is the transcript of that interview; while not totally accurate, as reflected by
the Defendant‘s submission of his own transcript of the interview which is also marked
for identification, this Court will refer to State‘s Ex. 66, as the parties did in questioning
witnesses during the hearing, to assist in identifying certain portions of the videotaped
interview.

11

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,

12

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

13

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

14

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

15

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.

C

The Hospital

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

16

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.

17

D

The Warrants

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
18
October 4, 2009. 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.

18
Despite the importance of the time that the Judge signed this warrant, this Court would
note that it bears no time of issuance on its face. Police departments should be
encouraged to request and include this information as a matter of course.

18

Id.
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,19 a second one to search the contents of the LG Verizon

cell phone,20 and a third one to obtain the T-Mobile records for telephone number (401)

699-7580.21 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

19
See St.‘s Ex. 34.
20
See St.‘s Ex. 35.
21
See St.‘s Ex. 36. During his interrogation, Defendant reported that his phone number
was (401) 699-7580 and that his cell service provider was T-Mobile. See St.‘s Ex. 68.

19

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

20

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

21

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.22 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

22
A number known to be the cell phone number of Defendant‘s mother is listed in the
Metro PCS phone under the contact name, ―Momz.‖ Additionally, one of the
photographs in State‘s Ex. 31 is a photograph of a text message from (401) 617-4301 that
reads, ―Yo Mike.‖ There are also several photographs of a young, female child who
appears to be Jazlyn Oliver. See St.‘s Ex. 31.

22

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

23

location of Sprint/Nextel Keeper of Records,23 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:

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.

Id.

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

23
This location, being for a different service provider, has been identified during the
hearing as a likely error. It appears erroneously in multiple warrants.

24

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, 2009.24 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-

24
The warrant for phone records for (401) 359-6789, the cell phone of Mario Palacio,
also was preceded by a notice of preservation, which Sgt. Gates sent to T-Mobile. See
St.‘s Ex. 40.

25

Mobile number 401-699-7580.‖25 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.

issued for T-Mobile cellular number 401-359-6789 as enumerated in
Federal Statute Title 18-2703-D. The information being sought is as
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 & 41.26 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

25
The change to this sentence is highlighted with italics.
26
State‘s Exhibit 52 is T-Mobile Law Enforcement Group‘s notice of preservation, sent
to the Cranston Police Department on October 7, 2009.

26

requested subscriber information and records for the LG cell phone. See St.‘s Ex. 43.27

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:

issued for Verizon Wireless cellular number 401-486-5573 as enumerated
in Federal Statute Title 18-2703-D. The information being sought is as
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. 47.28

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

27
Sgt. Gates also preceded this warrant with a notice of preservation to Verizon Wireless.
See St.‘s Ex. 43. Additionally, Sgt. Gates sent a follow-up letter to Verizon Wireless on
October 9, 2009, requesting that the information be emailed or faxed in response to the
warrant. See St.‘s Ex. 45.
28
State‘s Exhibit 47 is yet another notice of preservation which Sgt. Gates sent to
Sprint/Nextel.

27

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.

Id.

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.29 He served this warrant30 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

29
Angie Patino testified during the suppression hearing that her cell phone number in
October 2009 was (401) 431-3626.
30
This warrant was also preceded by a notice of preservation sent from Sgt. Gates to
Sprint/Nextel Corporate Security requesting that the records for (401) 431-3626 be
preserved from ―midnight 09/28/09 through midnight 10/04/09.‖ St.‘s Ex. 50.

28

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.‖

St.‘s Ex. 49.

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 & 34.31

31
State‘s Exhibits 32 and 34 are the records of the Metro PCS cell phone and the
extraction report for it, respectively, and appear to confirm that the number (401) 475-
9434 was, in fact, Ms. Patino‘s mother. In the Metro PCS cell phone‘s contact list, the
number is saved under the title ―Momz,‖ and the extraction report shows that the number
was saved as ―Mike‘s Mom‖ on the LG cell phone. Ms. Patino also testified that her
parents‘ home phone number was (401) 475-9434.

29

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 warrant32 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.

32
Sgt. Gates followed this warrant with a letter to Cox Communications, which informed
the company that a search warrant had just been faxed and that the results could be faxed
or emailed to Sgt. Gates in response. St.‘s Ex. 54.

30

On October 28, 2009, Det. Cardone drafted a warrant specifically regarding a

―black T-Mobile Sidekick, cell number 401-699-7580.‖33 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.‖34 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

33
For clarification, State‘s Ex. 79 is a photograph of the black T-Mobile cell phone, taken
pursuant to the October 28, 2009 warrant.
34
As there was conflicting evidence as to which cell phone belonged to the Defendant,
Det. Cardone testified that he verified, on October 28, 2009, that the black T-Mobile
Sidekick cell phone did, in fact, correspond to phone number (401) 699-7580 by calling it
from his work cell phone. State‘s Ex. 33 is a photograph documenting this alleged effort.

31

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,

32

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

33

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.

34

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

35

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.

St.‘s Ex. 57.

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‖

36

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.35 on October 4, 2009, Detectives Cardone

and Slaughter proceeded with their investigation of what was now considered a homicide.

Around 7:45 p.m.,36 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

35
See St.‘s Ex. 56. The time of Marco Nieves‘ death is recorded in several of the warrant
affidavits. Though the validity of some information in the warrants is contested, the time
of death is not contested by either party.
36
State‘s Exhibits 3 & 4 provide this time estimate. While interviewing Nieves and
Correia, Det. Cardone stated, ―Again, we‘re very sorry for your loss...,‖ which places the
interview after Marco‘s death. See St.‘s Ex. 3. Furthermore, the time listed on the written
statement of Mr. Nieves, which was completed after the interview, is 8:25 p.m. See St.‘s
Ex. 4.

37

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 [2009].‖ 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

38

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

39

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

40

knowledge of the results of the subsequent searches. This Court, therefore, will proceed

to decision, letting the proverbial chips fall where they may.

F

Procedural History

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.37

37
The State objects to these motions and has filed its own motion in limine with respect
to the R.I. R. Evid. 404(b) evidence.

41

Defendant argues, in support of his suppression motions,38 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

38
At this point, the Court notes that both parties‘ legal arguments focused largely on the
issue of standing as a threshold issue in the case. The other legal arguments were made,
unfortunately, in a perfunctory manner. This Court has been required, therefore, to
extrapolate from both parties‘ arguments, as made in their briefs and at the hearing, in
order to attempt to fully construct their positions and the law relevant to them for
purposes of this Decision. The lack of adequate legal briefing by both parties has
resulted in the unnecessary and exhausting expenditure of precious judicial resources.

42

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.

II

Analysis

A

Motion 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

43

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

44

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].39 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,

39
http://pewinternet.org/Reports/2011/Cell-Phone-Texting-2011.aspx

45

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

46

expensive to text than to call. See Joel Mathis, AT&T, Sprint, and Verizon: The plans

compared, (Oct. 6, 2011).40

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).41 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].42 In

doing so, law enforcement has taken advantage of information that these companies have

preserved, often without the knowledge or consent of their customers,43 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

40
http://www.macworld.com/article/1162844/atandt_sprint_and_verizon_the_plans_com
pared.html.
41
http://www.nytimes.com/2012/07/09/us/cell-carriers-see-uptick-in-requests-to-aid-
surveillance.html?_r=1&pagewanted=all.
42
http://markey.house.gov/press-release/markey-law-enforcement-collecting-
information-millions-americans-mobile-phone-carriers (last visited August 28, 2012).
43
In this case, for example, law enforcement obtained multiple warrants to allow it to
gather from service providers the cell phone records of numerous individuals other than
the Defendant or Trisha Oliver. See St.‘s Ex. 39 (warrant to T-Mobile Law Enforcement
Relations for the phone records of Mario Palacio); St.‘s Ex. 49 (warrant to Sprint Nextel
for phone records of Angie Patino); St.‘s Ex. 46 (warrant to Sprint Nextel for phone
records of Rafael Nieves). There is no evidence that the police sought, nor did the
service providers require, consent from any of these individuals before the records were
sought or obtained. See Stored Communications Act, 18 U.S.C. § 2703 (dealing with the
requirements for service providers to give requested information to law enforcement).

47

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

48

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.44 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).45 As a

44
Article I, Section 6 of the Rhode Island Constitution—our State‘s ―Fourth
Amendment‖—states in full:

The right of the people to be secure in their persons, papers and
possessions, against unreasonable searches and seizures, shall not be
violated; and no warrant shall issue, but on complaint in writing, upon
probable cause, supported by oath or affirmation, and describing as nearly
as may be, the place to be searched and the persons or things to be seized.

R.I. CONST. Art. I, § 6. In this Decision, this Court will refer to the Fourth Amendment of
the United States Constitution and Article I, Section 6 of the Rhode Island Constitution,
collectively, as the ―Fourth Amendment,‖ unless specifically noted. Similarly, references
to the ―Fifth Amendment‖ will include the Fifth Amendment of the United States
Constitution and its mirror provisions of the Rhode Island Constitution. The Fifth
Amendment of the United States Constitution provides, in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury . . . nor shall
any person be . . . compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process
of law . . . .

U.S. CONST. amend. V. Article 1, Section 13 of the Rhode Island Constitution—our
State‘s ―Fifth Amendment‖—states: ―No person in a court of common law shall be
compelled to give self-[in]criminating evidence.‖
45
In State v. Maloof, the Rhode Island Supreme Court insisted on adhering to the higher
standard of protection provided by the Rhode Island legislature with regard to wiretaps of
citizens‘ phones. It interpreted the relevant statute as authorizing intrusions into an

49

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.46 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

individual‘s conversations only for the shortest possible time period and requiring that
any wiretap cease upon accomplishing its purpose. The Supreme Court thus suppressed
evidence originating from a wiretap that went beyond its stated purpose.
46
This Court notes that the instant case appears to be precisely the type of case that the
Supreme Court had in mind to justify providing greater protection under the R.I.
Constitution than the federal one.

50

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.

2

Standing to Challenge

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

51

exclusively, used by Trisha Oliver.47 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

47
This standing issue looms larger in this case because the police, at least to date, have
produced no evidence that the key text messages are also on a cell phone belonging to the
Defendant. While the absence of that evidence does not mean that it does not exist or
that the police never searched the Defendant‘s cell phone or saw those messages on his
phone, it has allowed the State to attempt to focus standing in a way narrowly on the LG
cell phone in which the Defendant may or may not have standing. As this Court will
discuss, however, this construct is artificial and fails to resolve the question of standing in
this case either as a matter of fact or law.

52

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

53

not continuous. See, e.g., Commonwealth v. Wagner, 406 A.2d 1026 (Pa. 1979) (finding

defendant had standing in the house belonging to his fiancée 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

54

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.

55

(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.

56

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,

57

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

58

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

59

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

60

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

61

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

62

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

63

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.48 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,

48
A SIM card, or a subscriber identity module card, is an integrated circuit that stores
network identification information along with personal information of the subscriber such
as a contact list or text messages. SIM cards, this Court notes, are removable and can be
transferred between mobile devices.

64

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

65

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.

66

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

Being satisfied that Defendant‘s claim of standing to challenge the search and

seizure of his text messages does not—and should not—rise and fall based on his interest

in the LG cell phone, this Court now must determine if Defendant has a reasonable

expectation of privacy in the contents of his text communications.49 At the outset, this

Court notes that the question of whether people have an expectation of privacy in the

contents of their text messages has not yet been settled. As noted previously, the United

States Supreme Court in Quon assumed, without deciding, that people do have a

reasonable expectation of privacy in their text messages. See 130 S. Ct. 2619, 2629-30;

529 F.3d 892, 906-907. In doing so, however, it is particularly telling that the Supreme

49
For purposes of this discussion, the Court will assume, arguendo, that the text
messages sent to and from ―DaMaster‖ at the 699 telephone number were, in fact, text
messages sent to and from the Defendant.

67

Court and the courts below focused on the employer‘s privacy policy, and not the text

messages themselves, in determining the extent to which Quon could have reasonably

expected his text messages to remain private. It surely follows that personal text

messages exchanged between privately-owned mobile devices should be constitutionally

protected where neither party to the communications had any reason to believe that the

texts would be viewed by a third party. Indeed, the Supreme Court appeared to telegraph

as much in its decision, stating:

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 one society accepts as objectively reasonable.

See Smith v. Maryland, 442 U.S. 735, 740 (1979).

Upon review, the Court is satisfied that Defendant has shown a subjective

expectation of privacy in the contents of his alleged text messages on the LG cell phone.

It appears that text messaging was the Defendant‘s primary means of communication

with others, given the frequency and number of text messages sent to and received by

Defendant. Indeed, the Court notes that Angie Patino testified that Defendant‘s own cell

phone did not even have the capability to make actual phone calls. Similar to many

young adults today, Defendant did not call others, he texted them. Defendant‘s reliance

68

on text messages as the primary means of communicating with his girlfriend, his sister,

and other friends, therefore, supports a finding of a subjective expectation of privacy in

their contents. This Court cannot justifiably find that Defendant did not have an

expectation of privacy in the contents of his interpersonal communications, simply as a

function of the means used to make those communications, especially where there is no

danger that Defendant‘s alleged text messages were seen or overheard by parties other

than the police.50 Cf. U.S. v. U.S. Dist. Ct. for Eastern Dist. of Mich., Southern Div., 407

U.S. 297, 313 (1972) (recognizing one of the Fourth Amendment‘s purposes as being to

protect private communications).

Moreover, the Court is satisfied that both the tenor and the contents of

Defendant‘s alleged text messages on the LG cell phone are indicative of his subjective

expectation of privacy in them. Indeed, the very incriminating nature of the contents of

the text messages supports this finding of a subjective expectation that the text messages

would remain private, i.e., between Defendant and Trisha Oliver. The State, in oral

argument, effectively conceded Defendant‘s subjective expectation of privacy in his

alleged text messages. It characterized those texts as revealing ―the unfettered Michael

Patino.‖ It argued that the text messages document how Defendant speaks and acts ―when

50
The Court emphasizes that this case does not involve a situation where the contents of
Defendant‘s text communications were voluntarily revealed to law enforcement by the
alleged recipient of the communications, Trisha Oliver. Ms. Oliver left her cell phone
behind in her apartment, with Defendant still situated there, when she rushed to the
hospital with her unresponsive child. The police accessed her cell phone in her absence,
long before they applied for any warrant or sought her consent. The case also does not
involve a situation where Defendant mistakenly believed, in texting, that he was
communicating with someone else when he was actually communicating with law
enforcement. It has been well-settled that those other situations would not constitute a
violation of the Fourth Amendment. See Hoffa v. U.S., 385 U.S. 293, 303 (1966).

69

he thinks no one is watching.‖ This Court can conceive of no better definition of a

subjective expectation of privacy than what the State offered.

Transitioning to the objective tier of the Katz test, this Court is satisfied that

Defendant‘s expectation of privacy in his alleged text messages was also objectively

reasonable. Cell phones have replaced telephones. People send and receive billions of

text messages to and from their cell phones daily. Text messaging, especially among

young adults, has become an oft-employed substitute for face-to-face conversations, cell

phone conversations, or email. These text messages are often raw, unvarnished and

immediate, revealing the most intimate of thoughts and emotions to those who are

expected to guard them from publication. The text messages may be true or untrue. In

addition, most individuals now keep their cell phones in their possession at all times.

Individuals are closely associated with, if not identified by, their cell phone numbers.

Accordingly, this Court finds that it is objectively reasonable for people to expect the

contents of their electronic text messages to remain private, especially vis-à-vis law

enforcement. Cf. Quon, 130 S. Ct. at 2630 (―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.‖).

Moreover, this Court finds that the possibility that someone other than the

intended recipient of a text message will be in possession of the receiving cell phone at

any given time is unreflective of contemporary cell phone usage. Most cell phone

owners are in immediate possession of their phones at all times; indeed, the primary

convenience of cell—―mobile‖—phones is largely predicated on the fact that they stay

with a person at all times. This Court, therefore, does not find that the remote possibility

70

that an unintended party will receive a text message due to his or her possession of

another person‘s cell phone is sufficient to destroy an objective expectation of privacy in

such a message. Even if a cell phone were to be separated from its owner, the majority of

cell phones now feature some type of locking or password system that prevents easy

access to or reading of a text message.51 The ―risk‖ that a text message will be viewed by

someone other than the intended recipient is simply too remote to eliminate a person‘s

objectively reasonable belief that his or her text message will, in fact, be viewed only by

the intended recipient. Cf. State v. Hamilton, 67 P.3d 871 (Mont. 2003) (finding that a

remote possibility of harm did not meet the standard for an objectively reasonable belief

that such a threat existed). For all of these reasons, this Court would suggest that

Defendant does have a reasonable expectation of privacy in the content of his alleged text

messages on the LG cell phone.

(ii)

Electronic Communications and the Third-Party Doctrine

In such an unsettled area of the law, however, it behooves this Court to make a

thorough review of the preceding relevant jurisprudence before reaching a final

determination. Accordingly, this Court will address the well-settled third-party doctrine

to determine if it stands as an obstacle to finding an expectation of privacy in the contents

of text messages and/or other electronic communications.

51
In this Court‘s opinion, the very fact that cell phones now provide an option to
password protect their contents or restrict the plain view display of incoming messages
speaks to an objective, societal view that the contents of a cell phone—and text
messages—are private and thus worthy of protection. See generally Adam M.
Gershowitz, Password Protected? Can A Password Save Your Cell Phone from A Search
Incident to Arrest?, 96 Iowa L. Rev. 1125 (2011).

71

The third-party doctrine, succinctly stated, holds that a person does not have a

reasonable expectation of privacy in information that he or she has voluntarily exposed or

communicated to a third party. See Smith v. Maryland, 442 U.S. at 743-44 (holding that

where a person ―conveyed numerical information to the phone company and . . . its

equipment in the normal course of business, he assumed the risk that the company would

reveal the information to the police.‖). If applied absolutely, the third-party doctrine

would effectively defeat any expectation of privacy in text messages and, potentially, all

electronic communications. This result is untenable, however, in our modern world

where electronic communication is omnipresent and a cultural necessity. 52 See Jones,

132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring) (noting that the third-party

doctrine is ―ill-suited to the digital age, in which people reveal a great deal about

themselves to third parties in the course of carrying out mundane tasks.‖). This Court,

consequently, will further examine the doctrine in light of today‘s technological realities.

The third-party doctrine, in theory, seeks to strike a balance between the Fourth

Amendment privacy rights of citizens and the investigative needs of the government. See

generally Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561

(2009) [hereinafter Orin S. Kerr, The Case for the Third-Party Doctrine]. Accordingly,

the Fourth Amendment protects certain places and things while leaving others available

for surveillance. Id. at 574. Such a division purports to allow the government to

investigate crimes effectively without exposing citizens to unjustified intrusions. Id.

52
As an example, hard copy job applications, formerly mailed or hand-delivered to
prospective employers, have been replaced almost universally by digitally formatted
resumes sent via email. To not have an email address or digitally formatted resume is a
significant disadvantage in participating fully in our current economy.

72

Professor Kerr offers a telling hypothetical as to the purpose of the third-party

doctrine. Orin Kerr and Greg Jojeim, The Data Question: Should the Third-Party

Records Doctrine Be Revisited, ABA Journal (August 1, 2012) (blog post) (paragraphs 1-

8 under Orin Kerr‘s Counterproposal).53 The hypothetical involves the physical delivery

of a message by a person to a neighbor in the absence of third parties. Id. He posits that

the government is only permitted to monitor the individual as he or she walks in public to

the neighbor‘s home. Id. Professor Kerr further notes that the government, under the

Fourth Amendment, has no right to know the contents of the message being delivered;

the government only may know that the message was delivered. Id. The hypothetical is

relevant because it highlights that with the advent of third-party services, many formerly

public actions became ―private.‖ Id. A person, through third parties, may achieve

remotely what he or she previously had to do in person. Why walk to a neighbor‘s home

to speak, for example, when a simple telephone call or email will suffice? The use of

third parties thus allows certain transactions to be removed from the public sphere. Id.

To the savvy criminal, this is a boon. To the curious criminal investigator, this is a

significant blow. The third-party doctrine, it follows, has evolved as a manner of

restoring the Fourth Amendment balance between privacy and investigation, as

imbalanced by third-party services.54

53
http://www.abajournal.com/magazine/article/the_data_question_should_the_third-
party_records_doctrine_be_revisited
54
The third-party doctrine has developed over a period of time ranging from the early
1950‘s to the early 1980‘s through a series of cases dealing primarily with secret agents
and business records. Orin S. Kerr, The Case for the Third-Party Doctrine at 567-70.
These cases, in essence, sought to distinguish between what investigative steps the
government could take under the Fourth Amendment and what steps were forbidden. Id.
at 574.

73

Historically, the third-party doctrine has been invoked to find that a person does

not have a reasonable expectation of privacy in the address on an envelope, telephone

numbers dialed, or certain financial information provided to a bank. See U.S. v. Huie,

593 F.2d 14, 15 (5th Cir. 1979) (―There is no reasonable expectation of privacy in

information placed on the exterior of mailed items and open to view and specifically

intended to be viewed by others.‖); Smith v. Maryland, 442 U.S. at 743-45 (―When he

used his phone, petitioner voluntarily conveyed numerical information to the telephone

company and ‗exposed‘ that information to its equipment in the ordinary course of

business.‖); U.S. v. Miller, 425 U.S. 435, 442 (1976) (―All of the documents obtained,

including financial statements and deposit slips, contain only information voluntarily

conveyed to the banks and exposed to their employees in the ordinary course of

business.‖).

With respect to this case, the third-party doctrine presents a distinct problem on

account of how text messages are technologically exchanged. The sender of a short

message service (SMS) text message enters 160 characters or fewer into a mobile device

for transmission to the Short Message Center (SMC). See Katherine M. O‘Connor, OMG

They Searched My Txts at 689; see also Mark Milian, Why text messages are limited to

160 characters, Los Angeles Times, (May 3, 2009).55 The text message is then

temporarily stored at the SMC before being forwarded to the mobile device of the

intended recipient. Id. Each text message is therefore exposed to a third party—

theoretically activating the third-party doctrine—in the following four places: (1) the

SMC; (2) the service provider‘s network; (3) the sender‘s phone or wireless device; and

55
http://latimesblogs.latimes.com/technology/2009/05/invented-text-messaging.html.

74

(4) the recipient‘s phone or wireless device. Id. at 689. Nevertheless, this Court reasons

that the simple technological reality of how text messages are transmitted should not be

allowed to entirely negate an individual‘s right to privacy. See U.S. v. Warshak, 631

F.3d 266, 286 (6th Cir. 2010) (stating ―the mere ability of a third-party intermediary to

access the contents of a communication cannot be sufficient to extinguish a reasonable

expectation of privacy‖) (emphasis in original). As Justice Marshall so presciently stated,

―[p]rivacy is not a discrete commodity, possessed absolutely or not at all. Those who

disclose certain facts … need not assume that this information will be released to other

persons for other purposes.‖ Smith v. Maryland, 442 U.S. at 749 (Marshall, J.,

dissenting).

In Professor Kerr‘s enlightening hypothetical, it is highly notable that the content

of the message being physically delivered by one neighbor to another neighbor was never

under threat of governmental surveillance. The content of the message was revealed only

in the receiving neighbor‘s home under the protection of the Fourth Amendment. Only

the sending neighbor‘s action of delivering the message was public, and therefore,

available for observation.

Professor Kerr further considered the landmark case of Smith v. Maryland, where

an individual harassed a robbery victim by phone. 442 U.S. 735 (1979). Law

enforcement, in response, asked the phone company to install a pen register so as to

monitor the numbers that the suspect called. On account of the third-party doctrine, the

United States Supreme Court held that such action was not a violation of the Fourth

Amendment. This result makes perfect sense. Before telephone service, the harassment

of the robbery victim by a third party would have occurred in public where it could have

75

been observed, and responded to, by law enforcement. It necessarily follows, therefore,

that under the third-party doctrine, the monitoring of phone numbers called by the suspect

by law enforcement would have been no more intrusive than what had historically been

allowed under the Fourth Amendment.

In applying the analytical construct provided by Professor Kerr to this case, this

Court is satisfied that, in an era before the advent of cell phones, the content of the text

messages that Defendant allegedly sent to Trisha Oliver and that appeared on the LG cell

phone would never have been public. The messages would have been exchanged by

Defendant and Trisha Oliver in person or via landline phone outside the view of law

enforcement. Surveillance of the Defendant and Trisha Oliver by law enforcement would

have revealed the fact that Defendant and Trisha Oliver may have spoken—via the

exchange of text messages—but not the content of their communication. This Court thus

follows the ostensible logic of Smith v. Maryland and, consequently, holds that the third-

party doctrine is not applicable with respect to the content of the text messages that were

allegedly exchanged between Defendant and Trisha Oliver. The third-party doctrine, in

this Court‘s view, defeats an expectation of privacy, at most, as to the fact that the two

parties actually exchanged text messages.

Moreover, the third-party doctrine is impliedly based on a theory of assumption of

risk—i.e., the theory that a sender of a text message assumes the risk that the recipient of

that message will disclose its substance to a third party. Yet, this theory of assumption of

risk does not match today‘s realities of electronic communications. As Justice Marshall

observed apropos telephones:

Implicit in the concept of assumption of risk is some notion of choice ….
By contrast here, unless a person is prepared to forgo use of what for

76

many has become a personal or professional necessity, he [or she] cannot
help but accept the risk of surveillance. It is idle to speak of ‗assuming‘
risks in contexts where, as a practical matter, individuals have no realistic
alternative.

Smith v. Maryland, 442 U.S. at 749-50 (Marshall, J., dissenting) (internal citations

omitted). In light of the widespread use of text messaging, to not partake in the medium

is tantamount to actively choosing not to communicate. This is particularly true for rising

generations that have almost universally adopted the technology. It is even more true for

young persons with limited financial resources, like Defendant and Trisha Oliver, who

may feel compelled by the cost structure of the service plans offered by their cell phone

service providers to text rather than call. While it is certainly possible to forgo text

messaging, the choice is unpalatable, rather untenable, and disadvantageous relative to

participating within our technologically dependent culture. Thus, unless an individual is

ready to relinquish his or her ability to effectively communicate in today‘s technological

climate, the risk of surveillance is not a choice, but an undeniable reality.

Further, cell phone service providers, like Internet Service Providers for emails,

retain text messages, both sent and received, for varying periods of time. Again, were the

third-party doctrine absolutely applied, an individual‘s expectation of privacy in text

messages would be made dependent upon his or her service provider‘s text message

retention policy. This result is fundamentally unfair because: (1) many people are

unaware of their respective service provider‘s policies; (2) service providers maintain the

right to change their text message retention policies without notice; and (3) many people

may not have a choice in service providers depending on their location. Any discussion

of the privacy rights in text messages, therefore, must go beyond consideration of the

third-party doctrine. Notably, at least one court has agreed that the third-party doctrine

77

does not pertain to text messages and service providers. See State v. Clampitt, 364

S.W.3d 605, 611 (Mo. Ct. App. 2012) (―[T]he providers‘ ability to access those messages

does not diminish subscribers‘ expectation of privacy in their text message

communications. Rather, subscribers assume that the contents of their text messages will

remain private despite the necessity of a third party to complete the correspondence.‖).

This Court holds, therefore, on separate grounds, that the third-party doctrine is ill-suited

for contemporary forms of communication and thus should not wholly defeat an

individual‘s expectation of privacy in the contents of his or her text messages.

(iii)

The Analogies Used in Existing Fourth Amendment Jurisprudence

In deciding whether an individual has a reasonable expectation of privacy in his

or her text messages, this Court will next review the existing Fourth Amendment

jurisprudence regarding text messages along with the different analogies that have been

employed. Unsurprisingly, considering both the constantly evolving nature and

technological subtlety of the issue, courts have reached categorically divergent results in

addressing whether and to what extent people have a reasonable expectation of privacy in

text messages. See Quon, 529 F.3d at 892 (rev‘d on other grounds) (―The extent to

which the Fourth Amendment provides protection for the contents of electronic

communications in the Internet age is an open question.‖).

Text messages most commonly have been analogized to other forms of written

communications such as letters and emails. See, e.g., Quon, 529 F.3d at 904-905 (―We

see no meaningful difference between the e-mails at issue in [U.S. v. Forrester, 512 F.3d

500 (9th Cir. 2008)] and the text messages at issue here. . . . [W]e also see no meaningful

78

distinction between text messages and letters.‖). The contents of letters and emails are

constitutionally protected under the Fourth Amendment, although the address

information—the ―envelope‖ information—is not protected. See U.S. v. Jacobsen, 466

U.S. 109, 114 (1984) (―Letters and other sealed packages are in the general class of

effects in which the public at large has a legitimate expectation of privacy.‖). Further,

through applying this analogy, courts have generally found that people only have an

expectation of privacy with respect to text messages which they have received, but not in

the text messages they send. See e.g., U.S. v. Jones, 149 Fed. Appx. 954 (11th Cir. 2005)

(comparing text messages to letters and determining that a sender of a text message does

not have an expectation of privacy once the message has been received by another party).

This Court finds, however, that this analogy fails to the extent that text messages are

qualitatively different from both letters and emails—a fact that has escaped recognition

and insightful discussion by many courts to date.

Most basically, letters and emails are different from text messages because of

their form. Neither letters nor emails have associated mechanisms—e.g., character

limits—that encourage brevity. Letters and emails are therefore, almost always,

significantly longer than text messages. It thus follows that the expression contained

within a letter or email is similar in form to a monologue in the sense that it is, generally,

able to be understood through only its imparted information. Letters and email, in effect,

provide their own context. Additionally, senders of letters are aware that the recipient

will not receive the letter for a matter of days, making each letter—even when it is one of

a series of correspondence exchanged between two people—an independent and discrete

communication. Emails, due to their electronic form, are exchanged at a pace that is

79

decidedly faster than letters, but still notably slower than text messages. Text messages,

in contrast, are typically exchanged in rapid-fire bunches with a rhythm similar to that of

an oral conversation. The information expressed in a single text message is relatively

short and generally reactive as opposed to the, albeit sometimes short, monologue

characteristically offered in a letter or email. Stated otherwise, comprehension of a text

message is commonly dependent upon, or relative to, the viewing of preceding messages.

Thus, while a letter or email can be understood on its own, a text message‘s meaning is

best comprehended in the context of its surrounding messages from sender and recipient.

This distinction in form—between monologue and dialogue—is particularly

important to consider because of the fact that Fourth Amendment jurisprudence, in

determining whether an expectation of privacy exists, has traditionally focused on

whether the communications were sent or received by the person challenging the search

or seizure. Each letter is obviously discrete and separate from any response to that letter,

even in a case where the sender has retained a copy of the letter. Even email interfaces

present a clear distinction between an inbox (for received items) and an outbox (for sent

items). The separation of text messages sent versus received, conversely, is increasingly

blurred, if not altogether demolished, because of the manner in which text messages are

displayed on phones. ―Smartphones,‖56 for instance, present text messages in a manner

similar to that of an instant message conversation where the back-and-forth between

parties is displayed as a singular entity that includes past offerings. See, e.g., Apple

56
So-called ―smartphones‖ refer to those newer models of cell phones that also have
Internet capabilities and, among other things, permit users to send and receive emails as
well as text messages. See Mireille Dee, Getting Back to the Fourth Amendment at 1134.

80

iPhone Messages.57 Cell phone service providers also keep track of text messages that

are both sent and received on their network. As a result, law enforcement agents are

frequently unable to view just one side of a text message exchange regardless of whether

they are viewing phone records or an actual phone. This essential truth regarding text

messages stands in stark contrast to law enforcement‘s ability to selectively view an

individual email separate from the chain of which it is a part. Thus, the sent/received

distinction that the existing law seems to recognize is quite often unworkable for practical

purposes.

Letters and emails are also qualitatively different from text messages because of

their accessibility. As a general matter, letters are only accessible to the recipient, once

sent. Indeed, letters are only accessible to the sender if the sender chooses to keep a copy

of the letter. In contrast, emails and text messages are much more accessible. An email

account, in practice, may be accessed through any Internet-enabled device so long as the

person is in possession of the associated username and password. An email message is

also accessible from the email account of both the sender and recipient. Text messages,

comparatively, are attached to a specific cellular phone or, at very least, a phone number

or SIM card rather than an account that can be accessed from multiple places or devices.

Text messages, however, can be accessed on either of the participating devices, or

potentially in the service providers‘ records. Most basically, this means that access to the

messages, either text or email, is possible at multiple points. There is more than one

―copy‖ of a message in this sense. This is not true of letters.

57
http://www.apple.com/iphone/built-in-apps/messages.html

81

Letters are also provided greater privacy protection by law than emails or text

messages. Federal law, for example, protects against the interception or opening of

letters by an unintended party. See 18 U.S.C. 1708 (making it a crime for anyone other

than the recipient to open a letter); see also Walter v. U.S., 447 U.S. 649 (1980) (holding

that, absent some exigency, law enforcement must obtain a warrant in order to open

sealed packages and envelopes). Text messages, in contrast, are not provided—at least

not at this juncture—any comparable protections to letters because they are not ―sealed‖

in any meaningful way. Emails are protected because access to them generally requires

knowledge of the associated email account‘s username and password. There is also no

comparable federal statute deeming it a crime for someone other than the addressee to

intercept and read a text message.

Finally, it should be noted that letters are not nearly as subject to view by law

enforcement because they are rarely carried on people‘s persons. Text messages, because

of the mobile nature of cell phones, are almost always with a person and thus

exponentially more vulnerable to warrantless searches by law enforcement. Indeed, this

Court has found that the majority of cases dealing with the warrantless search of text

messages and the contents of cell phones have occurred in the context of a search

incident to arrest. See, e.g., U.S. v. Cote, 2005 WL 1323343 (N.D.Ill. May 25, 2005)

(―Searches of items such as wallets and address books, which I consider analogous to

Cote's cellular phone since they would contain similar information, have long been held

valid when made incident to an arrest.‖); U.S. v. Wurie, 612 F.Supp.2d 104, 109

(D.Mass. 2009) (listing cases permitting the search of a cell phone pursuant to a valid

arrest).

82

Given these qualitative differences between text messages and letters and emails,

this Court is of the view that analogizing text messages to other written forms of

communication, such as letters and emails, is an error. It is clear to this Court that such

analogies fail to account for the fundamental differences between the mediums. To

blindly employ these analogies, therefore, is to undervalue the privacy expectations of

those who engage in text messaging.

(iv)

Text Messages as Analogized to Oral Communications

An analogy perhaps more closely reflecting the realities of text messages is that of

oral communications.58 Text messages are frequently used to convey information that

formerly would have been subject to an oral conversation. Br. of EFF at 7. Scenarios

where an individual will text information instead of making a phone call—i.e., details of

plans, directions, basic inquires, well-wishes, and quips—are abundant. Additionally,

with the general advancement of text messaging capability, text messaging is no longer

limited to simple informational statements. Layered interpersonal communication is now

functionally possible and has consequently become commonplace, particularly among

younger users. Further, visual or audible authentication is no longer necessary for a

sender to reasonably believe that his or her message will be received by the intended

party. See State v. Hinton, 2012 WL 2401673 at *14 (Wash. App. Div. 2, June 26, 2012)

(Van Deren, J., dissenting). As a result, private topics previously reserved for secured

oral communication are now confidently exchanged through text messaging because

58
Several law review articles have suggested analogizing text messages to oral
communications. See, e.g., Katherine M. O‘Connor, OMG They Searched My Txts. To
date, however, this Court‘s research has disclosed no courts that have used this analogy.
This Court, however, will nonetheless address the analogy to oral communications.

83

―many, if not all, mobile phone owners are in immediate possession of their phones at all

times.‖ Id.

Expectation of privacy law for oral communications can be separated into two

directional areas: face-to-face conversations and phone conversations. Regarding phone

conversations, people maintain an expectation of privacy to the extent that they have

shown some subjective intention to keep their discussion private. See Katz, 389 U.S. at

352 (―What he sought to exclude when he entered the booth was . . . the uninvited ear. . .

. [o]ne who occupies it, shuts the door behind him, and pays the toll that permits him to

place a call is surely entitled to assume that the words he utters into the mouthpiece will

not be broadcast to the world.‖). Still, all oral communications are subject to the

possibility that the other participant in the conversation will disclose the contents of that

conversation to another party or law enforcement. Cf. Hoffa v. U.S., 385 U.S. at 303

(―The risk of being overheard by an eavesdropper or betrayed by an informer or deceived

as to the identity of one with whom one deals is probably inherent in the conditions of

human society. It is the kind of risk we necessarily assume whenever we speak.‖)

(internal quotations omitted). For phone conversations, the Court notes that law

enforcement is prohibited as a matter of both federal and state law from using electronic

surveillance to intercept and record the contents of telephone communications without a

warrant. See Katz, 389 U.S. at 353 (―The Government's activities in electronically

listening to and recording the petitioner's words violated the privacy upon which he

justifiably relied while using the telephone booth. . . .‖); R.I.G.L. 1956 § 12-5.1-2 et seq.

(detailing the procedures required before wire and oral communications may be

intercepted).

84

Nevertheless, the analogy to oral communications is not perfect, as text messages

are inherently a form of written communication. The messages thus can be shown to, or

viewed by, others with notable ease. The sender of a text message is open to the risk that

the message will be viewed by anyone who possesses the phone to which he or she sent

the message. Accordingly, text messages are more vulnerable to discovery than oral

communications, which in itself may cause individuals to have less of a subjective

expectation of privacy in the content of those communications.

In dealing with these realities, as applied to the now-obsolete pager, at least one

court, over two decades ago, found that a person does not have a reasonable expectation

of privacy in a message sent to a pager because the sender assumes the risk that the

message will be received by whoever is in possession of the pager. See U.S. v.

Meriwether, 917 F.2d 955, 959 (6th Cir. 1990) (―Unlike the phone conversation where a

caller can hear a voice and decide whether to converse, one who sends a message to a

pager has no external indicia that the message actually is received by the intended

recipient.‖). Another court recently extended this logic to text messages. See, e.g.,

Hinton, 2012 WL 2401673 (Wash.App.Div. June 26, 2012) (holding ―it is the

individual‘s decision to transmit a message to an electronic device that could be in

anybody‘s possession . . . that defeats the individual‘s expectation of privacy in that

communication.‖). In so reasoning, these courts implicitly rejected analogizing text

messages to oral communications.

Given the parallels between text messages and oral communications, however,

this Court is of the view that rejecting the analogy between these forms of

communication fails to account for their similarities. To blindly discard the analogy,

85

therefore, is to undervalue the privacy expectations of those who engage in text

messaging as a substitute for oral communication. This Court is reminded in this regard

of the logic of Justice Brandeis in his seminal dissent in Olmstead v. U.S., 277 U.S. at

471-85, that ultimately paved the way for the majority opinion in Katz v. U.S., 389 U.S.

347, almost four decades later:

There is, in essence, no difference between the sealed letter and the private
telephone message . . . ―True, the one is visible, the other invisible; the
one is tangible, the other intangible; the one is sealed, and the other
unsealed, but these are distinctions without a difference.‖ The evil
incident to invasion of the privacy of the telephone is far greater than that
involved in tampering with the mails. Whenever a telephone line is
tapped, the privacy of the persons at both ends of the line is invaded, and
all conversations between them upon any subject, and although proper,
confidential, and privileged, may be overheard. Moreover, the tapping of
one man's telephone line involves the tapping of the telephone of every
other person whom he may call, or who may call him. As a means of
espionage, . . . general warrants are but puny instruments of tyranny and
oppression when compared with wire tapping.

Olmstead v. U.S., 277 U.S. at 475-76 (Brandeis, J., dissenting). Similarly here, the

warrantless search of a cell phone is an evil ―far greater than that involved in tampering

with the mails.‖ Id. at 475. Whenever the cell phone text messages of any person are

searched, ―the privacy of the persons at both ends‖ of the text communication ―the

sender of the text message as well as the receiver― ―is invaded and all conversations

between them upon any subject, and although proper, confidential, and privileged may be

[read and, in effect,] overheard.‖ Id. at 475-76. ―Moreover, the [search of the texts on

one person‘s telephone] involves [the search] of the telephone of every other person who

he [or she] may [text] or who may [text] him [or her].‖ Id. at 476. ―As a means of

espionage, [therefore,] general warrants are but puny instruments of tyranny and

86

oppression when compared with [the warrantless search of cell phones to obtain such text

messages].‖ Id.

All together, this Court finds that the usual tropes—such as letters and emails—

through which courts have viewed the limits of a reasonable expectation of privacy in

text messages are of only limited use as they are largely predicated on a misconception

regarding the technology‘s nature and use in contemporary society. Text messages are

not letters, email, or even an oral communication alone—they are a technological and

functional hybrid. It follows that any consideration of people‘s subjective expectation of

privacy in their text messages must reflect this reality. This Court will not strain,

therefore, to apply existing law based on imperfect analogies. See generally Luke M.

Milligan, Analogy Breakers: A Reality Check On Emerging Technologies, 80 Miss. L.J.

1319 (Summer 2011). To do such would be to willingly commit analytical error.

Accordingly, this Court finds that the Katz test for determining whether a person

has a reasonable expectation of privacy is the appropriate one to apply. In applying the

Katz test, this Court finds further that the Defendant does have a reasonable expectation

of privacy in the content of his alleged text messages.

In so holding, the Court emphasizes that in viewing the contents of people‘s text

messages, just as with GPS monitoring,59 law enforcement is able to obtain ―a wealth of

detail about [a person‘s] familial, political, professional, religious, and sexual

associations.‖ U.S. v. Jones, 132 S.Ct. at 955 (Sotomayor, J., concurring). It is hard to

imagine information that could be any more private or worthy of protection from

59
A Global-Positioning System (―GPS‖) tracking device permits monitoring of a person
or vehicle‘s movements by means of signals from multiple satellites, thereby establishing
the location of the person or vehicle being tracked to within 50 to 100 feet. See Jones,
132 S.Ct. at 948.

87

unfettered examination by law enforcement. Any other result would be untenable and out

of keeping with the general goal of the Fourth Amendment to prevent ―a too permeating

police surveillance.‖ U.S. v. Di Re, 332 U.S. 581, 595 (1948). This concern for

protecting ―[t]he security of one‘s privacy against arbitrary intrusion by the police,‖ Wolf

v. People of the State of Colorado, 338 U.S. 25, 27 (1949), should be all the more salient

when it comes to the contents of a person‘s communications because ―[a]wareness that

the Government may be watching chills associational and expressive freedoms.‖ Jones,

132 S.Ct. at 956 (Sotomayor, J., concurring).

Of all the rights of the citizen, few are of greater importance or more
essential to his [or her] peace and happiness than the right of personal
security, and that involves, not merely protection of his [or her] person
from assault, but exemption of his [or her] private affairs, books, and
papers [and this Court would add the content of his or her text messages]
from the inspection and scrutiny of others. Without the enjoyment of this
right, all other rights would lose half their value.

In re Pacific Railway Comm‘n, 32 F. 241, 250 (C.C.N.D. Cal. 1887).

In light of the reviewed analogies and discussed considerations, this Court offers a

series of interconnected holdings. This Court finds that the third-party doctrine is

untenable for today‘s technological climate and thus should not be applied absolutely. It

also finds that text messages should not be considered solely as the contents of a single

individual‘s cell phone for purposes of analyzing an expectation of privacy in those

messages under the Fourth Amendment. For this analysis, this Court finds that text

messages sent and received should be viewed as a single entity due to their

interdependent nature and form. Finally, in applying the Katz test for standing, this Court

finds that a person has a reasonable expectation of privacy in the contents of his or her

text messages. Accordingly, this Court holds that Defendant possesses standing to

88

challenge the actions of the Cranston Police Department in searching the LG cell phone

and viewing his alleged text messages to and those messages from Trisha Oliver.60

3

The Illegality of the Search

Having established that Defendant has a reasonable expectation of privacy in the

contents of his text messages, this Court will go on to address whether the Cranston

Police Department‘s actions in searching the apartment, seizing phones, and searching

the LG cell phone to discover its text message contents constituted an illegal search and

seizure under the Fourth Amendment. This inquiry necessitates an examination of the

warrant requirement of the Fourth Amendment and certain well-settled exceptions to it.

It is axiomatic that a search conducted without a warrant is per se unreasonable

under the Fourth Amendment. See Katz, 389 U.S. at 357. This core constitutional

precept is limited by a few—specifically established and well-delineated—exceptions in

which a warrantless search may be permitted. See id. Among these exceptions are

searches conducted under exigent circumstances, a plain view search, or a search

conducted with an individual‘s consent. See, e.g., Warden, MD Penitentiary v. Hayden,

387 U.S. 294, 298-99 (1967) (pertaining to exigent circumstances) (―The Fourth

Amendment does not require police officers to delay in the course of an investigation if

to do so would gravely endanger their lives or the lives of others.‖); Coolidge v. New

Hampshire, 403 U.S. 443, 465 (1971) (pertaining to plain view) (―It is well established

60
The State does not challenge the Defendant‘s right to contest the search of any other
phones in evidence. In fact, it appears to assert that both the Metro PCS cell phone and
the T-Mobile cell phone belong to the Defendant. Regardless, this Court‘s determination
with respect to the Defendant‘s standing to challenge the text messages on the LG cell
phone obviously would extend to his text messages on any other cell phone in evidence.

89

that under certain circumstances the police may seize evidence in plain view without a

warrant.‖); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (pertaining to consent)

(―[O]ne of the specifically established exceptions to the requirements of both a warrant

and probable cause is a search that is conducted pursuant to consent.‖).

(a)

Sgt. Kite’s Initial Viewing of the Text Messages on the LG Cell Phone

It is undisputed that Sergeant Kite‘s initial viewing of the text messages on the

LG cell phone was not authorized by a warrant. His search of this phone must be

deemed to be in violation of the Fourth Amendment, therefore, unless it was justified by

an exception to the warrant requirement.

This inquiry requires this Court to determine whether his warrantless search of the

LG cell phone is nonetheless justified under the Fourth Amendment under the exceptions

to the warrant requirement for searches conducted under exigent circumstances, in plain

view, or with consent. This Court will address each of these exceptions to the warrant

requirement in seriatim.61

61
This Court focuses on these three exceptions to the warrant requirement as potentially
applicable here. It is important to note that the State does not invoke the well-settled
exception to the warrant requirement for a search incident to arrest that arguably would
allow for a search of a cell phone on a defendant‘s person at the time of arrest on the
theory that he or she has a lesser expectation of privacy in the cell phone and its contents
at that time. See State v. Brown, 260 A.2d 716, 719-20, 106 R.I. 453, 460 (1970)
(reviewing the search incident to arrest exception to the warrant requirement). In fact, it
denies that the Cranston Police Department searched any cell phone belonging to the
Defendant at any time prior to obtaining warrants for that purpose. More specifically, it
denies that the Defendant was under arrest at headquarters at the time that the officers
routinely secured the T-Mobile phone that it claims was on his person and further denies
that the officers searched that phone at that time. As to the LG cell phone, the State
maintains that it was never on the Defendant‘s person and that its search by Sgt. Kite
occurred before the police arrested the Defendant later that morning. This Court,

90

(i)

Exigent Circumstances

The exigent circumstances exception to the warrant requirement permits police

officers to make warrantless entries and searches and seizures in situations where ―some

compelling reason for immediate action excuses law enforcement officers from pausing

to obtain a warrant.‖ U.S. v. Martins, 413 F.3d 139, 146 (1st Cir. 2005). Common

examples of exigent circumstances include: ―hot pursuit‖ of a fleeing felon, the possible

loss or destruction of evidence, and emergency aid, i.e. when police reasonably believe

that immediate action is needed to safeguard life or prevent serious harm. See id. ―The

need to protect or preserve life or avoid serious injury is justification for what would be

otherwise illegal absent an exigency or emergency.‖ Mincey v. Arizona, 437 U.S. 385,

392 (1978) (internal citations omitted). During this sort of emergency search, the police

are permitted to seize any evidence in plain view. See State v. Jennings, 461 A.2d 361,

367 (R.I. 1981). A search prompted by exigent circumstances, however, must be limited

in scope and purpose. See id. The United States Supreme Court has stated that the

search must be ―strictly circumscribed by the exigencies which justify its initiation.‖

Mincey, 437 U.S. at 393. Moreover, ―the intrusion [must] not be a pretext to make an

arrest or a search to seize evidence.‖ Duquette v. Godbout, 471 A.2d 1359, 1363 (R.I.

1984).

In determining whether Sgt. Kite‘s warrantless search of the LG cell phone was

justified by exigent circumstances, this Court must scrutinize his handling of that phone.

therefore, will not address the warrant exception for search incident to arrest and
specifically leaves for another day the question of whether and under what circumstances
a cell phone may be searched incident to arrest.

91

Sgt. Kite admits that he viewed an alert on the front exterior screen of the device that said

the cell phone had one new message. Sgt. Kite then opened the phone to view the

interior screen and as a result was informed that there was one new message that could

not be received due to a lack of credit on the account. Sgt. Kite consequently

―manipulated a button‖ to ―acknowledge receipt of the message to avoid repeat

notifications.‖ This manipulation led Sgt. Kite to a list of text messages. The word

―hospital‖ appeared in the message at the top of the list. Sgt. Kite then clicked on this

message and subsequently viewed the following addressed to ―Da Master‖ 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.‖ At that point, Sgt. Kite said that he closed the phone and

examined no further text messages.

While Sgt. Kite attempted to justify his alleged actions in picking up, opening and

viewing of the LG cell phone by suggesting that he did so in response to an audible or

visual alert on the phone that he thought might be signaling that someone was trying to

contact Trisha Oliver regarding Marco Nieves‘ condition, this Court does not credit his

testimony in this regard. It likewise does not credit his testimony that he saw an

insufficient funds message thereafter and thus continued to scroll through the phone in an

attempt to locate the message associated with the alert. Significant to the Court in this

regard is that the phone records for the LG cell phone and the extracted contents of the

phone itself, introduced later in the hearing after Sgt. Kite testified, were stunningly

devoid of any evidence of the insufficient funds text message that figured so prominently

in his testimony. Not only did these records fail to corroborate his version of the events,

92

but they served to discredit his story.62

Absent some audible or visual alert regarding an incoming message, there is no

other evidence in the record to justify Sgt. Kite‘s actions in picking up and manipulating

the LG cell phone. This Court specifically emphasizes that the situation at the time did

not involve the investigation of any crime that might commonly involve either cell

phones or text messages, such as drug trafficking. See, e.g., State v. Carroll, 778 N.W.2d

1, 11 (Wis. 2010) (where the court accepted police officer‘s testimony that ―drug

traffickers frequently personalize their cell phones with images of themselves with items

acquired through drug activity,‖ and that drug traffickers frequently use their

personalized cell phones to make their transactions). In addition, a cell phone is not an

instrument that might reasonably pose a danger to officers so as to justify its seizure

under the exigent circumstances exception to the warrant requirement. Sgt. Kite‘s

warrantless search of the LG cell phone cannot be justified, therefore, as objectively

reasonable in the name of an ongoing emergency.

Moreover, even assuming that Sgt. Kite handled the LG cell phone initially in

response to an audible or visual alert out of concern for Marco Nieves and saw the

insufficient funds message, his continued manipulation of the phone thereafter to access

its substantive text message contents would have been objectively unreasonable and

beyond the scope of any permissible search at that time. If he saw such an insufficient

funds message, and knew that it explained the alert and had nothing to do with Marco

Nieves‘ condition, he should have refrained from any further manipulation of the phone

62
This story figures prominently in this Court‘s later ―fruits of the poisonous tree‖
analysis, as the police not only stuck to this story but repeated it at least a dozen times in
applying for search warrants. The falsity of the story also is one of the bases upon which
this Court has determined that a Franks hearing may be necessary in this case.

93

and ceased his ―search‖ at that time. The emergency situation involved a rescue call for

an unresponsive child. Any search of the LG cell phone should have been limited

perforce to what was necessary to determine the cause of the child‘s condition or

otherwise assist in helping Marco Nieves.

While Sgt. Kite attempted, through his testimony, to limit the scope of his search

to what he believed was reasonably necessary to respond to the ongoing emergency

situation involving Marco Nieves—namely, reading a single text message about the

marks on Marco Nieves neck and the concern about those marks being revealed if the

child had to go to the hospital—this Court does not accept that his search was so limited.

The idea that Sgt. Kite would have seen that one incriminating text message and instantly

shut the phone to avoid a more invasive search is preposterous. No reasonably curious

person, much less a seasoned police officer in the throes of investigating a child‘s

mysterious medical decline, would have seen that suspicious text message and been able

to resist scrolling for more.

The purpose of Sgt. Kite‘s examination of the contents of the LG cell phone, in

this Court‘s view, was not to deal with an ongoing emergency involving a child, as he

testified; his purpose, purely and simply, was to scroll quickly but thoroughly through the

cell phone for possible evidence of a crime. The problem, however, is that he did so

without first obtaining a warrant, and the circumstances created no exigency that could

excuse that failure. This Court thus holds that Sgt. Kite‘s actions in searching the text

messages on the LG cell phone were objectively unreasonable and not justified by the

exigent circumstances exception to the warrant requirement.

94

(ii)

Plain View

The plain view exception to the warrant requirement permits an officer to seize

evidence in plain view ―when he [or she] is lawfully in a position that allows him [or her]

to see the evidence and it is immediately apparent to the officer that the object is evidence

of criminality.‖ State v. Portes, 840 A.2d 1131 (R.I. 2004). This exception generally

applies where ―the police officer…had a prior justification for an intrusion[,] in the

course of which he came inadvertently across a piece of evidence incriminating the

accused.‖ Horton v. California, 396 U.S. 128, 136 (1990) (internal citations omitted).

In this case, the State appears to be arguing that Sgt. Kite‘s actions in viewing the

text message content on the LG cell phone fall under the plain view exception to the

warrant requirement because he saw it inadvertently as a result of his reasonable

decision to pick up the LG cell phone to view an incoming text message. As this Court

discussed previously, however, in addressing the exigent circumstances exception to the

warrant requirement, it does not accept Sgt. Kite‘s story as to what prompted him to pick

up that cell phone nor does it agree that his handling of the phone was reasonable or that

he saw only one text message.

It likewise is not convinced that Sgt. Kite‘s viewing of the text message content of

the LG cell phone—even if limited to a single message—was, in fact, inadvertent. To

view the text message content of the LG cell phone, Sgt. Kite had to take affirmative

actions, pressing at least one button, before the text messages would appear. This is not

a case where the display screen on the LG cell phone immediately displayed something

that was evidently incriminating on its face. Compare State v. Carroll, 778 N.W.2d at 9

95

(―After [the officer] legally seized the open phone, his viewing of the marijuana image

also was legitimate because that image was in plain view.‖). Regardless, any claim of

inadvertence must be rejected because it conflates the fact that inadvertence is a

necessary condition for the plain view doctrine to apply with inadvertence alone being a

sufficient condition.

The State also appears to argue that Sgt. Kite‘s viewing of the LG cell phone was

reasonable because it was in plain view at the time when he ―seized‖ and ―searched‖ it.

Even assuming, however, that the Court accepts that the LG cell phone was a ―closed

container‖ for purposes of this analysis, that assumption would not make Sgt. Kite‘s

actions in searching the ―container‖—the LG cell phone—reasonable. It is well-settled

that even if a container may be lawfully ―seized‖ in plain view, law enforcement may not

then expand its actions to ―search‖ the container without a warrant. See Horton, 496 U.S.

at 136 (―[T]he ‗plain view‘ doctrine may not be used to extend a general exploratory

search from one object to another until something incriminating at last emerges.‖)

(internal citations omitted).

Finally, the Court emphasizes that the plain view doctrine is meant to apply to the

seizure of items, the criminality of which must be immediately apparent. See id. This

Court cannot find that a cell phone is an object that, in and of itself, has apparent

criminality, except perhaps in cases where the officer has probable cause to believe that

the cell phone is contraband.

Accordingly, this Court holds that Sgt. Kite cannot justify his discovery of the

text message content of the LG cell phone as inadvertent or the result of the items being

in plain view. As such, his search of the LG cell phone does not fall within the plain

96

view exception to the warrant requirement.

(iii)

Consent

A search conducted pursuant to consent is constitutionally permissible. See State

v. Casas, 900 A.2d 1120, 1134 (R.I. 2006). Where a person consents to a search,

however, that search must be limited to what is objectively reasonable in order to

accomplish the purpose for which the person gave consent. See U.S. v. Turner, 169 F.3d

84, 87 (1st Cir. 1999).

In the instant case, Trisha Oliver impliedly consented to Sgt. Kite‘s search of her

apartment when she accompanied him on a tour of the residence after his arrival. Her

consent, however, was impliedly, if not expressly, limited to a search for items that might

have caused Marco Nieves‘ deteriorating health condition. Sgt. Kite implicitly

recognized these limits when he testified that he took some care to confine his search to

items in plain view that the child might have ingested, rather than opening up drawers or

closed containers to find such evidence.

Sgt. Kite‘s affirmative action in searching the LG cell phone to view the

incriminating text messages thus stepped beyond the scope of what could have

reasonably been understood to be encompassed by Trisha Oliver‘s consent. Neither a cell

phone nor text messages could reasonably be expected to have caused Marco Nieves‘

medical condition.63 ―Government agents may not obtain consent to search on the

63
While Trisha Oliver ultimately may have given written consent to search the contents
of the LG cell phone, the police did not ask her to sign a written consent form, nor did
she sign one until the afternoon of October 4, 2009, while she was at the hospital
awaiting news of her son‘s condition. St.‘s Ex. 58. As Ms. Oliver did not sign this
consent form until hours after Sgt. Kite‘s morning search of the LG cell phone and its

97

representation that they intend to look only for certain specified items and subsequently

use that consent as a license to conduct a general exploratory search.‖ Turner 169 F.3d at

87 (internal citations omitted).

In addition, there is no evidence that the Defendant consented to the police being

in the apartment or seizing or searching any phones there. Indeed, it would be

inconsistent for the State to argue such consent where it takes the position that the

Defendant has no standing in the apartment or in the LG cell phone that Sgt. Kite

searched. Accordingly, this Court finds that Sgt. Kite‘s search of the LG cell phone and

its text message contents was not objectively reasonable as a search pursuant to consent

that would justify relief from the warrant requirement. Having reviewed the exceptions

to the warrant requirement for searches that are justified by exigent circumstances, plain

view or consent, and having found the evidence insufficient under each exception to

justify Sgt. Kite‘s warrantless search of the LG cell phone at issue here, this Court must

conclude that his search was objectively unreasonable. There is no reason, under the

circumstances of this case, to excuse the Cranston Police Department from its

constitutional obligation to secure a warrant before proceeding with a search.

This Court reiterates that the standard by which a warrantless search is judged is

one of objective reasonableness and not an officer‘s subjective intent. See Kentucky v.

King, 131 S. Ct. 1849, 1859 (2011) (―Our cases have repeatedly rejected a subjective

approach, asking only whether the circumstances, viewed objectively, justify the action.‖)

(internal quotations omitted). While Sgt. Kite, and other officers, might well have

believed that his cell phone search was reasonable, their subjective beliefs, being

text messages, her consent, even if valid, is irrelevant to this Court‘s determination of
whether consent existed at the time of his warrantless search.

98

objectively unreasonable, cannot carry the day. The very purpose of the warrant

requirement is to ensure that a neutral magistrate stands between law enforcement and the

people to decide whether it is reasonable to allow law enforcement‘s requested intrusion

into a person‘s private affairs. See McDonald v. U.S., 335 U.S. 451, 455-56 (1948)

(stating that the warrant requirement was made ―so that an objective mind might weigh

the need to invade that privacy in order to enforce the law.‖).

Given the amount of private information that can be readily gleaned from the

contents of a person‘s cell phone and text messages—and the heightened concerns for

privacy as a result—this Court will not expand the warrantless search exceptions to

include the search of a cell phone and the viewing of text messages. It is particularly

reluctant to do so here where it was unclear, before the search of the cell phone, whether

any crime had been committed and where there was no evidence of a crime involving the

use of cell phones and text messages. See id. (―The right of privacy was deemed too

precious to entrust to the discretion of those whose job is the detection of crime and the

arrest of criminals.‖).

In so holding, this Court acknowledges the seriousness of Marco Nieves‘ medical

condition and the consequent motivation, on the part of Sgt. Kite and other officers, to do

whatever possible to investigate its cause. The investigatory instincts and talents of law

enforcement are critical to maintaining our civilized society and holding persons

accountable for their actions. Yet, the seriousness of Marco Nieves‘ injuries does not

otherwise justify an intrusive, non-consensual warrantless search into a cell phone that

was clearly not the immediate cause of the injury. ―It is inconsistent with the Fourth

Amendment to adopt the position that ‗the seriousness of the offense under investigation

99

itself creates . . . [the] circumstances . . . that under the Fourth Amendment justify a

warrantless search.‘‖ Jennings, 461 A.2d at 367 (quoting Mincey, 437 U.S. at 394).

Accordingly, this Court holds that Sgt. Kite‘s actions in manipulating the LG cell phone

to view its text message contents constituted an illegal, warrantless search, in violation of

the Fourth Amendment.

(b)

Search and Seizure of Other Phones

After Sgt. Kite‘s illegal search of the LG cell phone at the apartment, B.C.I.

detectives of the Cranston Police Department purportedly took formal steps at the scene

to seize and search phones at the apartment, including—according to B.C.I.‘s seizure

report—the LG cell phone, the Metro PCS cell phone, the iPhone and the landline phone.

It also photographed the text messages that appeared on the LG cell phone, inclusive of

those text messages that Sgt. Kite had discovered illegally. The State claims that it did so

legally, pursuant to the first search warrant issued in this case.

Before examining the warrant and the propriety of any searches that occurred

after its issuance, however, this Court must pause to address whether any seizure of

phones and search of the contents of the phones occurred at the scene or otherwise before

issuance of the warrant so as to render those searches and seizures illegal. It then must

proceed to consider the propriety of any searches and seizures of phones and their

contents that occurred after the police obtained the first warrant.

(i)

Warrantless Searches and Seizures

Based on the testimony and evidence adduced at the suppression hearing, this

100

Court is not satisfied that the State has proven, by a preponderance of the evidence, that

the police were in the apartment legally after Marco had been transported and Trisha

Oliver had left for the hospital. The emergency had ended as had their plain view search

in her company. There is no evidence thereafter that the police sought or received the

Defendant‘s consent to remain there.

Even assuming the right of the police to be on the premises, this Court is not

convinced that the State proved that the police confined their search and seizure of

phones, prior to issuance of the first warrant, to the LG cell phone in the apartment that

Sgt. Kite admittedly searched and seized. It makes no sense to this Court that seasoned

police officers, with well-honed investigative instincts, would have searched only the LG

cell phone that was the subject of Sgt. Kite‘s testimony, especially when that phone, upon

examination by Sgt. Kite, raised questions about the identity of ―DaMaster,‖ whether the

last message on the phone that Sgt. Kite admittedly viewed asking whether the sender

should tell the hospital about the marks on Marco Nieves‘ neck was actually sent and

whether ―DaMaster‖ answered that inquiry. Given that Sgt. Kite examined the LG cell

phone in detail before issuance of the first search warrant, it is probable, and indeed far

more likely, that the officers on scene examined the other phones in the apartment—

either before or after Sgt. Kite‘s search of the LG cell phone—to determine if there were

any incriminating text messages or other electronic data of interest on any of the phones

and, more particularly, to try to determine which cell phone belonged to whom, the

identity of ―DaMaster‖ as the sender of the messages on the LG cell phone and the

location of the corresponding text messages to the LG cell phone.

It is also probable that this search and seizure of phones, prior to issuance of the

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first warrant, extended to the cell phone taken from Defendant‘s person at headquarters.

While the Cranston police have taken shockingly inconsistent positions, throughout their

investigation and in their testimony at the suppression hearing, as to whether the

Defendant had on his person at the station the Metro PCS cell phone or the T-Mobile cell

phone and which of those two cell phones was in the apartment, the handling of the

evidence suggests that either cell phone or its SIM card could have been in the apartment

and/or at the station at different times that morning. Regardless, the conflict in the

evidence on these points—though proof positive of woefully deficient, if not blatantly

illegal and deceptive evidence handling—does not need to be parsed further by this Court

for purposes of defining the extent of the warrantless searches and seizures that morning;

regardless of where the Metro PCS cell phone and the T-Mobile cell phone were located

and when on the morning of October 4, 2009, this Court is convinced that they were both

seized and searched by the police, along with the LG cell phone, the iPhone and the

landline phone, prior to their seeking or obtaining the first warrant.

Support for this Court‘s conclusions in this regard can be found in the testimony

and evidence at the suppression hearing. This evidence reveals that the police were

focused on cell phones and text messages at the earliest stages of the investigation and

well before they sought or obtained the first search warrant for the apartment. Sgt. Kite,

by his own admission, had noticed at least four cell phones in the apartment, had seen the

Defendant answer the landline phone and had, in this Court‘s view, examined the

incriminating text messages on at least the LG cell phone. Indeed, this focus is what

prompted the police to take Defendant to the station to give a statement. In the ensuing

two hours or more from the time the Defendant left the apartment until the police

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obtained the first search warrant, the officers had both the motive and the opportunity to

examine all of the cell phones to find the sending and receiving cell phones containing

the incriminating text messages, discover additional incriminating cell phone contents,

and link the Defendant to those messages.

During this time period, Sgt. Kite remained in the apartment with other B.C.I.

detectives. They were not just twiddling their thumbs, waiting for a warrant to be

prepared and signed—something they could have, and should have, done outside of the

apartment. The problem is that the only basis that they had to seek a warrant, at least

based on the testimony at the hearing, was the illegally obtained text messages. Instead,

Sgt. Kite, by his own admission, immediately alerted Lt. Sacoccia at the station about the

text messages he had seen (though Lt. Sacoccia was not a witness at the suppression

hearing so this Court has limited information about his activities in this regard). Sgt. Kite

also asked that the Defendant‘s cell phone be taken off of his person at the station, even

though the Defendant had not been arrested. Sgt. Kite tried to justify this warrantless

seizure of the Defendant‘s cell phone by saying that he had seen the Defendant pick up

his cell phone from the back of the couch in the apartment and take it with him to the

station and that he was concerned about preserving evidence.64 At this point, the police

focus on the cell phones expanded from those cell phones in the apartment to include the

cell phone on Defendant‘s person at headquarters.

As this focus on the cell phones advanced, the abysmal handling of the evidence
64
This Court notes that the mere fact that Defendant picked up a cell phone when he left
the apartment hardly denotes any suspicious activity concerning the cell phone. Cell
phones are almost always in their owners‘ immediate control and are, indeed, intended to
be carried by their owners. Of course, the officers‘ concern about this cell phone
undoubtedly would have been heightened if they already knew it contained the subject
text messages.

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by the police in this case—specifically the critical cell phones at issue—plays into this

Court‘s view that the police seized and searched all of these cell phones without a

warrant. When the police relieved the Defendant of his cell phone at headquarters, they

did not secure that cell phone in evidence; they literally pocketed the evidence, with the

Defendant‘s cell phone first going into the pocket of Officer Machado and then from him

into the pocket of Sgt. Walsh. This Court cannot fathom that this phone was pocketed

without being examined, especially since Sgt. Walsh headed with this phone to the scene

and had it with him when he asked Judge Clifton to issue the first warrant in this case.

Meanwhile, there is evidence of additional police manipulation of the LG cell

phone at the apartment. Soon after the police transported the Defendant to headquarters,

just prior to beginning his interrogation and well before the police made application for a

search warrant, an officer at the apartment actually manipulated the LG Verizon cell

phone (again) and used it to call the phone‘s voicemail account, at phone number (401)

486-5573, for 15 seconds, after which the officer hung up. See St.‘s Ex. 32.

As the detectives began the Defendant‘s interrogation, still prior to obtaining a

search warrant, their questioning confirms that the police had been focused, and were

continuing to focus, on the cell phones, their text message contents and tying Defendant

to the incriminating text messages. They referenced text messages and their evidentiary

value and asked Defendant right away to state his cell phone number. As this was

happening, other officers monitored the interview and its contents from an external

monitoring room. The interview proceeded with the detectives going in and out of the

interview room, conferring with other officers outside of the room. None of the police

witnesses at the suppression hearing wanted to talk about what was really going on at this

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time.

In the ensuing timeframe, as noted, it appears that Sgt. Walsh returned to the

scene—with the cell phone taken from Defendant at headquarters still in his pocket.

There is also evidence that an unknown officer at the scene picked up the Metro PCS cell

phone and reoriented it on the dining room table, as shown in photographs taken later at

the scene, suggesting examination of it. Sgt. Walsh and Sgt. Kite both left the scene at

some point with cell phones on their persons and returned to headquarters, and neither of

them turned those phones over to B.C.I. until later that day. The cell phones were never

secured properly as evidence; they traveled in police pockets and in unsecured little

brown paper lunch bags, capable of easy examination, confusion, or substitution. As the

interrogation progressed, the detectives began to use more particularized cell phone text

messages in interviewing the Defendant and left and returned to the room repeatedly

without adequately explaining these activities at the hearing, leading this Court to infer

that they had ready access to cell phones and their contents.

While it is possible that some of these police activities occurred after issuance of

the first warrant, the issuance of the warrant itself and any activities taken pursuant to it

still suggest that the police were engaged in the active pursuit of cell phone and text

message evidence before the warrant. The police would have wanted to ensure that any

cell phone that they thought was valuable, which certainly would have included the

Defendant‘s cell phone that corresponded with the LG cell phone, was in the apartment at

the time they obtained the warrant so that its search and seizure would have been covered

by the warrant. This desire would have required investigating the cell phones to try to

make sure that all cell phones with evidentiary importance were in the apartment when

105

the warrant was executed.

The police, having taken the Defendant to the station for interrogation early that

morning, also would have wanted that interrogation to encompass as much cell phone and

text message evidence that they could find. They would have wanted their search for cell

phones and text message evidence, therefore, to proceed as swiftly as possible. Not

mentioning any cell phones or text messages in the warrant affidavit or the warrant itself

is consistent with already having found the evidence illegally, as is the fact that the

detectives questioning the Defendant were prepared to use the explicit text message

evidence—which they reference as being from the Defendant‘s own cell phone—

immediately on the heels of when the police say they secured the warrant. If the police

did not already have possession of such evidence at the time the warrant was issued, they

would have needed time to execute the warrant, seize and search all of the cell phones

and relay their findings to the detectives in the interview room—tasks that would have

taken longer time than the timeline indicated by the officers‘ own testimony and the

course of the interrogation. From all of this evidence, it can be reasonably inferred that

the police examined all of the cell phones found at the scene and the cell phone taken

from Defendant‘s person at headquarters, prior to obtaining a search warrant.

Moreover, the fact that there is no evidence before this Court as to whether the

Metro PCS cell phone or the T-Mobile cell phone in evidence actually contain the

corresponding incriminating text messages to those found on the LG cell phone does not

affect this Court‘s conclusion. That evidence indeed may exist on the Metro PCS cell

phone or the T-Mobile phone, as the police were careful not to photograph such evidence

or the absence of it in their subsequent searches of the contents of those phones, they did

106

not prepare an extraction report of the contents of those phones (as they did for the LG

cell phone) for submission as evidence in the suppression hearing, the phones in evidence

are uncharged and thus their contents cannot be viewed by this Court, and no testifying

officer could guarantee to the Court that some other officer did not see the broader

contents of these phones at some point. In addition, the ensuing warrant affidavits are

replete with inconsistent statements about which of those two phones were where and

Det. Cardone‘s affidavit and attempt to explain it and those inconsistencies did not ring

true.

Regardless, whether the Metro PCS cell phone or the T-Mobile cell phone contain

evidence of the incriminating text messages matters not to this Court in reaching its

conclusion that these cell phones were searched by the police before they obtained the

first warrant or thereafter in excess of the scope of that warrant. If the police did not see

those incriminating text messages on one of those cell phones, they would have had every

incentive to search harder for them; if they saw those messages on one of those cell

phones, they would have had every incentive to focus the investigation and their evidence

and arguments at the suppression hearing on a cell phone other than one tied to the

Defendant.65

Moreover, while the State attempted to suggest, based largely on the testimony of

officers and evidence of the Crime Scene Roster that served as a timeline of their

activities at the scene, that no searches and seizures occurred at the scene other than a

plain view search authorized by Trisha Oliver and Sgt. Kite‘s viewing of the text

65
Indeed, as this Court has noted previously, the State‘s standing argument is premised
on the implicit assumption that the police did not view the incriminating text messages on
Defendant‘s cell phone, which is troublesome given this Court‘s conclusion that the
police searched and seized that phone.

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messages on the LG cell phone, this Court finds otherwise. It would note, in this regard,

that the State could not explain away the documentary evidence confirming that a search

of the LG cell phone to access its voicemail clearly occurred at the scene prior to the

issuance of the first warrant. In addition, it is clear from testimony that officers

admittedly were in the apartment conducting a search before other officers arrived at the

scene with the warrant signed by Judge Clifton in hand. To justify this action, officers

testified that Lt. Sacoccia had called them, before they initiated their search, to indicate

that the search warrant had been signed. As Lt. Sacoccia did not testify, however, there

was no evidence to corroborate this testimony. In addition, the warrant itself bears no

time stamp or equivalent information on its face to show when it was signed—a fact that

is particularly troubling to this Court in light of the importance of the timeline of police

activities in this case. Moreover, the usual, and legally required, practice is for officers

on scene not to begin any search until the warrant has been served on the owner or

occupant of the premises and the officers know its scope; otherwise, they risk engaging in

an unlawful warrantless search or a search that exceeds the scope of the warrant. This

testimony does not convince this Court, therefore, that these officers, who admittedly

searched, did so pursuant to the first warrant.

Furthermore, the written timeline contained in the Crime Scene Log, upon which

testifying officers relied in giving their testimony about the time and order of their

activities on the morning of October 4, 2009, and upon which the State relies in

suggesting that no other searches and seizures of cell phones occurred before the first

warrant, was not, in this Court‘s view, reliable evidence of the actual timeline. See St.‘s

Ex. 5. Sgt. Kite testified that he asked Officer Lee to initiate the Crime Scene Roster at

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6:30 a.m. that morning to document which officers entered and left the scene and at what

times. Sgt. Kite‘s testimony in this regard was not corroborated by Officer Lee, who did

not testify at the hearing. Sgt. Kite struggled to explain why he would initiate a crime

scene roster if he did not view the scene at that time as a crime scene, stating that he

simply wanted to document police activity at the apartment. Sgt. Kite testified further

that he filled in the first six entries on the roster, suggesting that it was he and not Officer

Lee who initiated it. He also conceded that officers may not have signed themselves in

and out of the roster but that other officers might have done that for them. There also is

no evidence as to who maintained the roster during the course of the morning.

This testimony suggests that police officers did not document their own entries on

this roster contemporaneously with the events listed on it, and that no one controlled the

document itself, thereby rendering the entries recorded on it unreliable. There are also

entries on the roster that are inconsistent with other evidence in the case. The testimony

and evidence thus raises the specter that the roster may have been prepared after the fact

to provide a template for testimony about the timeline of activities at the scene so that it

would square with the documentary evidence of when B.C.I. took photographs, the

videotape of the scene, and the videotape showing when the detectives began to question

Defendant about the text messages—all in an effort to demonstrate that their activities at

the scene, other than a plain view search for evidence that could have caused Marco‘s

medical condition and Sgt. Kite‘s ―inadvertent‖ viewing of the text messages on the LG

cell phone, were taken after issuance of the warrant. As many testifying officers

evidenced no independent memory as to the timeline of their activities at the scene, and

relied on the roster as the sole basis for their testimony as to when they did what at the

109

apartment, this Court finds that it is virtually impossible to construct a true timeline of all

police activity at the scene. The absence of a reliable timeline convinces this Court

further that the State has failed to establish that there were no searches and seizures of

additional cell phones at the scene or otherwise prior to issuance of the first warrant.

Accordingly, this Court concludes that the police officers on the scene conducted

a search and seizure of all of the phones in the apartment, the cell phone seized from the

Defendant‘s person and the contents of all of those phones before obtaining the first

warrant. Put another way, this Court is not convinced that the State proved that such

illegal searches and seizures of phones did not occur. No testifying officer could state

with certainty that the contents of the Metro PCS cell phone and the T-Mobile cell phone

had not been examined. Just as Sgt. Kite‘s actions in illegally searching the contents of

the LG cell phone lacked justification under the exigent circumstances, plain view, and

consent exceptions to the warrant requirement, so too did the police officers‘ other

actions in searching the apartment and searching and seizing the other phones in

evidence. The Cranston Police Department thus engaged in an illegal warrantless search

and seizure of all of the phones in evidence and the contents of those phones, including

the LG cell phone, the Metro PCS cell phone, the T-Mobile cell phone, the iPhone, and

the land line, in violation of the Defendant‘s rights under the Fourth Amendment.

(ii)

Searches and Seizures After Warrant Obtained

Even assuming, arguendo, that the police at the scene engaged in no informal

search and seizure of the phones in the apartment and the phone taken from the

Defendant‘s person before B.C.I. first obtained a warrant and then proceeded to formally

110

seize the evidence, that would not end the inquiry into the legality of its actions. It

likewise would not end the inquiry into the propriety of B.C.I. taking photographs at the

scene of certain text messages stored in the LG cell phone pursuant to the first warrant.

These inquiries require this Court to consider whether the searches and seizures of

the phones and the taking of the photographs of the text messages, even if done after

obtaining the first warrant, exceeded the scope of that warrant so as to make the

collection of this evidence illegal. If the taking of the photographs exceeded the scope of

the first warrant, this Court then must consider further whether the police took those

photographs out of a reasonable fear that the subject of the photographs—namely, the

text messages stored in the LG cell phone—might be deleted remotely so as to make

these photographs admissible, even without a warrant, under the exigent circumstances

exception to the warrant requirement.

(1)

Particularity of the Warrant and the Scope of the Search

The Fourth Amendment requires that warrants describe with particularity the

place to be searched and the persons or things to be seized. Coolidge v. New Hampshire,

403 U.S. 443, 471 (1971); State v. Pratt, 641 A.2d 732, 736 (R.I. 1994). ―The

particularity requirement [dates back to adoption of our federal Constitution and] ar[ose]

out of a hostility [on the part of the framers] to the Crown‘s practice of issuing general

warrants taken to authorize the wholesale rummaging through a person‘s property in

search of contraband or evidence.‖ U.S. v. Upham, 168 F.3d 532, 535 (1st Cir. 1999). A

search or seizure, therefore, must conform to the scope of the warrant. See id. at 536. A

warrant cannot be extended beyond the privileges granted in its issuance. See In re No.

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191 Front St., Borough of Manhattan, City of New York, 5 F.2d 282, 285 (2d Cir. 1924).

The particularity requirement prevents the seizure of one thing under a warrant

describing another thing. See Marron v. U.S., 275 U.S. 192, 196 (1927). ―If the initial

intrusion is bottomed upon a warrant that fails to mention a particular object, though the

police know its location and intend to seize it, then there is a violation of the express

constitutional requirement of [particularity].‖ Coolidge, 403 U.S. at 471. The

particularity requirement thus limits the discretion of the officer executing the warrant,

and any insufficient description in the warrant itself cannot be cured by a showing that

the executing officer was aware of other facts not in the affidavit which enabled him or

her to know exactly what things were intended to be covered. See, e.g., Green v. State,

688 So.2d 301, 306 (Fla. 1996) (holding that ―where the search warrant description was

insufficient, it is not relevant to this analysis that the officer who actually executed the

warrant had information not contained in the warrant‖).

Whether a police search and seizure, pursuant to a warrant, was within the scope

of the warrant is a question of objective reasonableness under the totality of the

circumstances. See U.S. v. Cofield, 391 F.3d 334, 336 (1st Cir. 2004). The burden is on

the State to show that any search and seizure of items was justified within the four

corners of the warrant. See Commonwealth v. Taylor, 409 N.E.2d 212, 215 (Mass. App.

Ct. 1980); see also Carlton v. State, 449 So.2d 250, 251 (Fla. 1984) (―[T]he particularity

requirement and its constitutionality must be judged by looking only at the information

contained within the four corners of the warrant.‖).

In determining here whether the first warrant for the apartment is sufficiently

particularized to allow for the searches and seizures of the phones and the photographing

112

of the text messages on the LG cell phone by B.C.I., this Court must examine the

language of that warrant. By its terms, the warrant authorized the search and seizure of:

―[a]ny 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‖ and limited the place to be

searched to the apartment in question. The corresponding affidavit mentioned Marco

Nieves‘ unresponsive condition, that the officers had ―observed dark brown vomit inside

of the toilet,‖ and that the attending doctor had ―located marks on Nieves‘ right shoulder

and determined that Nieves was suffering from brain trauma which he classified as

suspicious.‖ See St.‘s Ex. 22. This Court specifically notes that there is no mention

anywhere in either the affidavit or the warrant itself of cell phones or text messages.

According to the language contained within the four corners of the warrant,

therefore, the warrant authorized the search and seizure of items from the apartment that

related to a child (Marco Nieves), who had become unresponsive under suspicious

circumstances. Its language was broad, in the sense that it authorized the search and

seizure of ―any and all [items] that may have evidentiary value;‖ yet any search that took

place had to be limited to what was objectively reasonable to believe would provide

evidence relating to an unresponsive child under suspicious circumstances.

In construing this language, this Court cannot find that the language of the

warrant reasonably included a seizure of all phones that could be located in the apartment

and a search of their contents. This Court acknowledges that the seizure of those phones

and a search of their contents, including B.C.I.‘s photographing of the text messages on

the LG cell phone, may have been subjectively reasonable as a result of Sgt. Kite‘s

113

viewing of the text message content of the LG cell phone. The scope of a search

conducted pursuant to a warrant, however, is limited by what appears in the four corners

of the warrant itself and does not depend on any omitted information—such as the

existence of multiple phones in the apartment and references to text messages on the LG

cell phone or otherwise—that was not included as part of the sworn affidavit presented to

the Judge who signed the warrant. As the warrant failed to authorize, with particularity,

the search and seizure of phones and text messages, the scope of the searches and

seizures under the warrant must have been limited to items in the apartment that were

reasonably related to a child who had become unresponsive under suspicious

circumstances—i.e., within the objectively reasonable scope of the searches and seizures

specifically authorized by Judge Clifton in signing the warrant.

This Court emphasizes in this regard that an unresponsive child, or even a child

who may be suspected of being the subject of a crime of child abuse, is not commonly

associated with either phones or text messages. It was not objectively reasonable,

therefore, for the police to interpret a general warrant authorizing a search and seizure of

items in the apartment relating to an unresponsive child, even under suspicious

circumstances, to include a search and seizure of phones in the apartment and their

contents or, even more obviously, the cell phone taken from the Defendant‘s person.

The fact that Sgt. Walsh and the other B.C.I. detectives were aware of the

relevance and importance of the cell phones and their text messages in this case does not

justify the seizure of the phones and the photographing of text messages where it cannot

reasonably be stated that the face of the warrant authorizes those seizures and searches.

In the instant case, especially where the police had information that, if lawfully obtained,

114

could have permitted the issuance of a warrant that specifically authorized the seizure of

the cell phones and the search of their contents, this Court cannot find that the seizure of

phones and photographing of the contents of the LG cell phone was reasonably within the

scope of the searches and seizures authorized by the warrant.

Finally, this Court reiterates that a search of cell phones, and of their electronic

contents in particular, involves a high degree of intrusiveness into the private affairs of

the persons using or communicating with such phones because of the sheer amount and

type of personal information that can be revealed, generally, through the phone‘s

contents, and, more particularly, through the contents of text messages stored on any such

phone. As a general matter, therefore, this Court finds that any warrant that allows for

the seizure and search of phones and their contents must authorize, with particularity, the

phones that may be seized and searched, by phone number and other identifying

characteristics, as well as the nature of the contents of those phones that may be searched

and seized. Cf. U.S. v. Payton, 573 F.3d 859, 861-62 (9th Cir. 2009) (―There is no

question that computers are capable of storing immense amounts of information and often

contain a great deal of private information. Searches of computers therefore often involve

a degree of intrusiveness much greater in quantity, if not different in kind, from searches

of other containers. Such considerations commonly support the need specifically to

authorize the search of computers in a search warrant.‖).

In reaching this conclusion, this Court emphasizes that, at the time the police

applied for the first warrant at issue here, the officers already had information specifically

relating to phones based, at a minimum, on their observation of multiple phones in plain

view at the scene and their taking of Defendant‘s cell phone off of his person at the

115

station. They also knew of the text message content of the LG cell phone as a result of

Sgt. Kite‘s viewing of that phone. This case thus squarely involves a situation, not unlike

that condemned by the United States Supreme Court in Coolidge, where the police

already knew of evidence and intended to seize it, but the evidence was nowhere

mentioned in the warrant or the application that preceded its issuance. See 403 U.S. at

471.

Indeed, when this Court questioned the affiant, Sgt. Walsh, about the omission of

any reference to text messages or cell phones in the first warrant affidavit, he stated that it

was a ―mistake.‖ This Court believes, to the contrary, that it was more likely a conscious

effort to try to purge the affidavit of evidence of the warrantless search of the LG cell

phone by Sgt. Kite, that the police knew was illegal, as well as potentially the illegal,

warrantless conduct of other officers in searching and seizing other phones, so as to try to

sanitize those warrantless searches and seizures, after the fact, with a warrant. Ironically,

however, in so doing, the police necessarily narrowed the scope of the warrant to exclude

the very evidence that they sought most to capture—namely, the phones and their

contents of which they were already aware.

(2)

Exigent Circumstances

Having determined that B.C.I.‘s photographing of the text messages on the LG

cell phone did not fall within the scope of the warrant, this Court next must determine if it

was otherwise justified under the exigent circumstances exception to the warrant

requirement. This question asks this Court to decide whether it was objectively

reasonable for the police to believe that the photographing of the text messages on the LG

116

cell phone was necessary to prevent their loss or destruction through remote deletion.66

An imminent risk of the loss or destruction of evidence may create the exigent

circumstances necessary to justify a warrantless search. See U.S. v. Martins, 413 F.3d

139, 146 (1st Cir. 2005). The belief that the loss or destruction of evidence is imminent

must be objectively reasonable based on specific and articulable facts. See U.S. v.

Young, 909 F.2d 442, 446 (11th Cir. 1990). ―The mere possibility of loss or destruction

of evidence is insufficient justification for its warrantless search or seizure.‖ U.S. v.

Radka, 904 F.2d 357, 363 (6th Cir. 1990).

In this case, this Court is not convinced that the possibility of remote deletion of

the text messages from the LG cell phone is what drove the decision on the part of the

B.C.I. detectives, on the morning of October 4, 2009, to photograph those text messages.

It seems more likely that the B.C.I. detectives took those photographs to preserve the

evidence, have easier access to it and, most importantly, to attempt to demonstrate that it

collected the evidence legally pursuant to a valid warrant. The fear of remote deletion

appeared to this Court to be an argument contrived after the fact to attempt to save

otherwise illegally gathered evidence from exclusion at trial.

Even assuming that a fear of remote deletion played a role in the decision to

photograph, the State has failed to convince this Court that such a fear was reasonable.

The State presented no evidence to show that it is possible to delete messages from a cell

phone using technology from a remote location. More particularly, even assuming that

such a possibility exists today, the State offered no evidence that the technology existed

66
Remote deletion is the ability of some phones to receive ―a kill command . . . that will
cause the device to encrypt itself or overwrite data stored on the device.‖ U.S. Dept. of
Justice, Computer Crime & Intellectual Property Section, Searching & Seizing
Computers and Obtaining Evidence in Criminal Investigations at 30 (2009).

117

with respect to the LG cell phone, back in 2009, that would have allowed someone then

to remotely delete text messages from that cell phone and, more importantly, that the

detectives knew about that technology at the time.

Accepting that it was possible to remotely delete text messages from the LG cell

phone in 2009, the State failed to introduce any evidence, aside from that mere

possibility, to support a belief on the part of the B.C.I. detectives that morning that it was

immediately necessary to photograph the text messages on the LG cell phone to prevent

their remote deletion. Without any specific facts on which to base their assertion of

exigent circumstances, this Court cannot deem reasonable the detectives‘ alleged fear that

the text messages would otherwise be lost.

Indeed, under the circumstances of this case, this Court finds that any fear that the

text messages would be remotely deleted was both objectively and subjectively

unreasonable. During the morning in question, when the detectives photographed the text

messages, Trisha Oliver was at the hospital awaiting further news of her son‘s condition,

and the Defendant was already at police headquarters being questioned by Detectives

Slaughter and Cardone. The State posits that all of the incriminating text messages on the

LG cell phone were exchanged between Defendant and Trisha Oliver. It is reasonable to

conclude, therefore, that only Defendant or Trisha Oliver would have had either the

motive or the ability to attempt remote deletion of text messages from the LG cell

phone.67 Yet, under the circumstances, neither Defendant nor Trisha Oliver would have

had any opportunity to engage in the remote deletion of the text messages, even were it to

67
This Court questions whether Trisha Oliver would, in fact, have been motivated to
delete the text messages, in light of her purported action, a few hours later, in consenting
to the search of the LG cell phone. It will assume, however, that it was at least possible
for purposes of this discussion.

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have been possible and the idea of it to have occurred to them.

There is nothing in the record, therefore, to suggest that the remote deletion of the

text messages in question was anything more than a hypothetical possibility. In light of

the intrusive nature of any search of text messages, this Court cannot find that the exigent

circumstances exception to the warrant requirement would apply, absent specific facts

showing that remote deletion was not only possible but also an imminent threat that was

objectively reasonable. To hold otherwise would make a mockery of the Fourth

Amendment warrant protections when it comes to the contents of cell phones and text

messages, permitting police officers to search cell phones and photograph their contents

based upon mere speculation, unsupported by any facts.

This Court thus finds that the officers‘ searches and seizures of the phones in

evidence and their contents at the scene or from Defendant‘s person that morning,

including the photographing of the text message contents of the LG cell phone, even if

done pursuant to the first warrant, exceeded the scope of that warrant and cannot be

justified under the exigent circumstances exception to the warrant requirement.

Accordingly, this Court holds that those searches and seizures were objectively

unreasonable and hence violative of the Fourth Amendment.

4

The Admissibility of the Evidence

(a)

The Exclusionary Rule

Having determined that the Cranston Police Department engaged in the illegal

search and seizure of the phones and text messages from the LG cell phone, this Court

119

next must consider what evidence in this case is subject to exclusion at trial under the

exclusionary rule. The exclusionary rule ―bars from introduction at trial evidence

obtained either during or as a direct result of searches and seizures in violation of an

individual‘s Fourth Amendment rights.‖ State v. Jennings, 461 A.2d 361, 368 (R.I. 1983)

(quoting Wong Sun v. U. S., 371 U.S. 471, 485 (1963); State v. Burns, 431 A.2d 1199,

1205 (R.I. 1981)). The underlying prophylactic purpose of the exclusionary rule is ―to

deter law enforcement officers from violating a defendant‘s rights.‖ State v. Huy, 960

A.2d 550, 556 (R.I. 2008) (citing State v. Barkmeyer, 949 A.2d 984, 998 (R.I. 2008)).

―The exclusionary rule is not intended to assuage the harm caused to persons who suffer

as a result of an illegal search and seizure.‖ Id. (citing Pa. Bd. of Probation and Parole v.

Scott, 524 U.S. 357, 362 (1998)).

The jurisprudence of the United States Supreme Court has extended the

exclusionary rule to ―indirect as well as direct products of [ ] unlawful actions.‖ Wong

Sun, 371 U.S. at 484; Jennings, 461 A.2d at 368. The exclusionary rule ―traditionally

bar[s] from trial physical, tangible materials obtained either during or as a direct result of

an unlawful invasion,‖ but the Supreme Court has held that ―statements obtained by

exploitation of an illegal arrest are [also captured by the exclusionary rule as] ‗fruits of

the poisonous tree.‘‖68 Jennings, 461 A.2d at 368 (citing Wong Sun, 371 U.S. at 485).

The exclusionary rule does not ―invite any logical distinction between physical and

verbal evidence.‖ Wong Sun, 371 U.S. at 486. Fruits of the poisonous tree thus may be

direct or indirect, tangible or non-tangible― the form of the evidence is irrelevant. See

68
The ―fruit of the poisonous tree‖ analogy is thus employed to make clear that where the
source of the evidence is tainted, the evidence arising from the source is also tainted. For
purposes of this analogy, the source of the evidence is the ―tree,‖ and the evidence itself
is the ―fruit.‖ See Wayne R. LaFave, 6 Search & Seizure § 11.4 (4th ed.).

120

id.

The focus of this Fourth Amendment ―fruits of the poisonous tree‖ inquiry is on

―whether, granting establishment of the primary illegality, the evidence to which instant

objection is made has been come at by exploitation of that illegality . . . .‖ Wong Sun,

371 U.S. at 485, 488; Jennings, 461 A.2d at 368. Stated simply, it must be determined

whether there has been any attenuation of the taint from the principal illegality with

regard to each piece of challenged evidence. This determination can be made by

―examin[ing] the particular facts of each [piece of evidence] . . . along with: (1) the

temporal proximity of the illegality; (2) the presence of intervening circumstances; and

(3) the purpose and flagrancy of the illegal police conduct.‖ Jennings, 461 A.2d at 368;

Burns, 431 A.2d at 1205-06.

In applying the exclusionary rule in this case, this Court first will determine

whether the police obtained any physical or tangible evidence during or as a result of an

illegal search or seizure. It then will consider whether that evidence is subject to

exclusion as fruit of the poisonous tree. After determining the evidence that is subject to

exclusion, it will consider what evidence should, in fact, be excluded under the

exclusionary rule.

(i)

Illegally Seized Evidence

This Court previously found that the Cranston Police Department illegally seized

certain phones from the apartment or the Defendant‘s person because it seized them

without a warrant and/or because the seizure exceeded the scope of the warrant obtained.

This category of evidence includes the LG cell phone (St.‘s Ex. 15), the Metro PCS cell

121

phone (St.‘s Ex. 16), the T-Mobile cell phone (St.‘s Ex. 18), the iPhone (St.‘s Ex. 17),

and the landline phone (St.‘s Ex. 19). These phones also were illegally searched. This

Court found further that the police illegally searched the LG cell phone and photographed

its contents in excess of the scope of the warrant obtained and under non-exigent

circumstances.

All of the phones in evidence and the photographs from the LG cell phone are

thus ―physical, tangible materials obtained either during or as a result of searches and

seizures in violation of an individual‘s Fourth Amendment rights.‖ Jennings, 461 A.2d at

368. Accordingly, the evidence is subject to exclusion under the exclusionary rule.

(ii)

Fruits of the Poisonous Tree

In applying the exclusionary rule, this Court next must examine the poisonous

tree in this case—the incriminating text messages that Sgt. Kite discovered as a result of

his illegal search of the LG cell phone― and ask whether the subsequent collection of

evidence by the Cranston Police Department is fruit of that poisonous tree. Put another

way, this Court must decide if the police exploited that principal illegality in its later

collection of evidence, including its searches and seizures of phones and the contents of

cell phones, as well as in its interrogation of the Defendant that resulted in his videotaped

and written confessions, so as to require exclusion of that evidence at trial.

In its fruit of the poisonous tree analysis, this Court finds it important to review

the inexact timeline of events in this case, as constructed through the testimony and

evidence admitted at the suppression hearing, to determine whether any of that evidence

is subject to exclusion under the exclusionary rule. The review of this chronology is no

122

easy task because it spans almost three years now and encompasses multiple warrantless

searches and seizures of numerous phones, the lengthy interrogation of the Defendant and

his resulting videotaped and written confessions, and additional searches and seizures of

the contents of multiple cell phones pursuant to more than a dozen warrants. This task

would not be nearly so vexing were it not for the fact that Sgt. Kite‘s search of the LG

cell phone and its text message contents occurred at the beginning of this tale, raising the

specter of a bountiful harvest of poisonous fruit. It thus is important to begin a critical

reading of this tale at chapter one.

Before Sgt. Kite‘s illegal search, there is no evidence that the Cranston Police

Department had commenced any criminal investigation of the Defendant. 69 Indeed, there

is no evidence that the police had any reason to suspect that a crime of any kind had

occurred. Based on the evidence, the only thing that the police knew, up until the time

Sgt. Kite viewed the incriminating text messages on the LG cell phone, was that Marco

Nieves, a previously healthy child, had become unresponsive under unknown

circumstances. Indeed, Sgt. Kite testified that, when he arrived at the apartment, he did

not consider it a crime scene. He admitted, in fact, that he suspected that the child might

have accidentally ingested some substance that caused him to become unresponsive and

that the purpose of his initial tour and visual scan of the apartment was to attempt to

locate any offending substance, such as pills or household cleaning products that might

69
As this Court noted previously, it is convinced that the police illegally seized and
searched all of the cell phones that morning before obtaining a warrant, inclusive of the
Metro PCS cell phone and the T-Mobile cell phone. While it is possible that the police
saw the incriminating text messages on a cell phone other than the LG cell phone before
Sgt. Kite looked at the LG cell phone, this Court has no evidence before it to suggest that
the police focused on the Defendant as a potential suspect that morning before or for any
other reason than Sgt. Kite‘s illegal viewing of the text messages on the LG cell phone.

123

be in plain view.

Only as a result of Sgt. Kite‘s illegal search of the LG cell phone― and the telling

information that it provided― did Defendant become a suspect and the police deduce that

certain evidence was of value. It was Sgt. Kite‘s viewing of the incriminating text

messages that transformed the police officers‘ emergency response into a criminal

investigation and, more specifically, into an investigation that would depend heavily on

cell phones and text messages. Stated differently, Sgt. Kite‘s illegal search and discovery

of these incriminating text messages precipitated the criminal investigation and directed

that investigation toward a particular person―the Defendant―and a particular

evidentiary focus― text messages and other contents of cell phones as evidence of the

crime. Consequently, this Court must consider the totality of the evidence obtained by

the Cranston Police Department during the course of its ensuing criminal investigation of

the Defendant as potentially ―tainted‖ by his illegal search.

(1)

Physical Evidence

This Court first must consider the physical evidence seized and searched by the

Cranston Police Department, either prior to obtaining that first warrant or pursuant to the

first warrant but in excess of its scope. See St.‘s Ex. 22 (first warrant for the apartment

dated October 4, 2009). This evidence includes the cell phones—the LG cell phone, the

Metro PCS cell phone, the T-Mobile phone, and the iPhone— as well as the landline

phone in the apartment. It also includes the photographs of the text messages on the LG

cell phone taken by B.C.I. (St.‘s Ex. 14, Photographs 0037-0050). While this Court

already has determined that this evidence is subject to exclusion as ―tangible [evidence]

124

obtained either during or as a direct result of illegal searches and seizures,‖ it will

address, in the alternative, whether it is subject to exclusion as ―fruit of the poisonous

tree.‖ Jennings, 461 A.2d at 368; Wong Sun, 371 U.S. at 485.

To the extent that the police seized this evidence after Sgt. Kite‘s illegal search of

the LG cell phone and before issuance of the first warrant and/or pursuant to the first

warrant, its seizure occurred as a direct result of knowledge on the part of the police—

thanks to Sgt. Kite‘s viewing of the incriminating text messages— that phones, and more

particularly cell phones and their contents, were of evidentiary value in this case. The

State has presented no evidence to support a finding that cell phones or other phones

found at a crime scene are automatically seized, regardless of the crime being

investigated. It would be hard-pressed to suggest that the police here employed such a

policy where it appears that B.C.I. may not have seized all of the cell phones that it saw

at the apartment that morning or where the phones that it says it seized may not have

been the phones it seized. Moreover, this Court finds that such a policy of automatic

seizure would run afoul of the particularity requirement of the Fourth Amendment.

The State likewise has presented no evidence to suggest that there was a reason

for the seizure of this evidence, independent of Sgt. Kite‘s viewing of the incriminating

text messages. As a result, the seizure of the LG cell phone, the Metro PCS cell phone,

the T-Mobile phone, the iPhone and the landline phone, as well as the taking of

photographs of text messages on the LG cell phone, to the extent done after Sgt. Kite

illegally viewed the text messages and regardless of whether it was done pursuant to a

valid warrant, was tainted by Sgt. Kite‘s illegal search and thus are subject to exclusion

as fruits of the poisonous tree.

125

(2)

Videotape of the Apartment

In contrast, however, this Court is satisfied that the videotaped recording made of

the apartment (St.‘s Ex. 6) was done pursuant to a valid warrant and would have been

made regardless of Sgt. Kite‘s search. The video recording of the apartment is general,

covers all areas of the apartment, and is not limited to the cell phones. Indeed, the

majority of the video recording shows portions of the apartment and the physical

evidence related to Marco Nieves‘ illness that are completely unrelated to cell phones or

text messages. Accordingly, this Court does not find that the videotaped recording of the

apartment was tainted by Sgt. Kite‘s search and it may be admitted at trial.

(3)

Videotaped Interrogation and Written Confession

Next up for consideration as being potentially tainted by Sgt. Kite‘s illegal search

is the police interrogation of the Defendant that occurred during the morning hours of

October 4, 2009 and that resulted in a videotaped recording (St.‘s Ex. 68) and written

transcript (see St.‘s Ex. 66) of the interrogation. There is no question that the police

would not have interviewed the Defendant in the early stages of their investigation,

absent Sgt. Kite‘s illegal discovery of the text messages on the LG cell phone. It is least

arguable, therefore, that this illegal discovery of the text messages tainted his entire

interrogation.

Before wading into the text of the interrogation itself, however, to determine

which portions of it may be tainted, this Court must consider whether there were any

intervening circumstances, between Sgt. Kite‘s illegal action and the interrogation, that

126

dissipate any potential taint. See, e.g., Brown v. Illinois, 422 U.S. 590, 598-600 (1975).

At the outset, this Court notes that, prior to being questioned formally by the police,

Detective Slaughter secured a waiver by the Defendant of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966). The fact the police gave the Defendant his Miranda

warnings, however, does not in and of itself suffice to attenuate the taint. See Oregon v.

Elstad, 470 U.S. 298, 306 (1985) (―Where a Fourth Amendment violation ‗taints‘ the

confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely

a threshold requirement in determining whether the confession may be admitted in

evidence. Beyond this, the prosecution must show a sufficient break in events to

undermine the inference that the confession was caused by the Fourth Amendment

violation.‖). It is, however, one intervening circumstance that the Court will consider.

This Court also will consider, as another intervening circumstance, the fact that

the Cranston Police Department would have questioned Defendant regarding Marco

Nieves‘ condition during the course of its investigation—even if the text messages had

not been viewed. This conclusion is supported by the fact that the police interviewed a

number of other people who had some relationship to Trisha Oliver and to Marco Nieves,

including Trisha Oliver‘s parents and Rafael Nieves, the child‘s biological father.

Defendant, as Trisha Oliver‘s boyfriend and an adult who, according to the affidavits for

the warrants obtained on October 4, 2009, ―often [lived] with [Marco Nieves],‖

undoubtedly would have been questioned as an important witness regarding Marco

Nieves‘ unexplained medical decline.

The high probability that Defendant would have been interviewed regardless of

the illegal search and the fact that he was Mirandized, is sufficient to dissipate the taint

127

from those portions of the interview that do not specifically refer to or stem from use of

the text messages. Accordingly, this Court finds that the portions of the interview that do

not exploit the illegally obtained text messages are not tainted and may be admissible at

trial.

A further review of the content of the interrogation is necessary, however, to

identify precisely which portions of it constitute an impermissible use of the illegally

obtained evidence to make them subject to exclusion as fruit of the poisonous tree. This

Court is satisfied that at least some portions of the interrogation were clearly tainted by

the illegal search of the text messages. This taint is evidenced by the frequent references

to the text messages scattered throughout the interview. The first reference to the text

messages occurred at approximately 8:50 a.m., even before the first warrant for the

apartment was signed, and many more references followed. See St.‘s Ex. 66, Tr. at 16:6-

12 to end. Moreover, this Court is troubled by the fact that Det. Cardone and Det.

Slaughter were unable to account for their activities during their absences from the

interview room when they clearly conferred with other officers who had illegal

possession of cell phones. Neither Detective appeared to be willing to state either when

or how they were informed of the incriminating text messages― if they physically

viewed the text messages themselves or were only told about the text messages by other

officers. In light of the convoluted nature of the facts surrounding the Cranston Police

Department‘s actions throughout this investigation, this Court finds their testimony to be

suspicious.70

70
While this Court cannot state that the Detectives knew that the text messages were
obtained illegally, the State certainly has not proven clearly and convincingly to the
contrary. Cf. U.S. v. Leon, 468 U.S. 897, 922-23 (1984) (holding that evidence obtained

128

Mindful of these considerations and after a careful review of the videotape and

transcript of the interrogation, this Court finds that the following portions of the

interrogation are too directly related to Sgt. Kite‘s illegal search of the contents of the LG

cell phone and consequently are subject to exclusion: (1) St.‘s Ex. 66, Tr. 14:20-18:4 (at

approximately 8:50 a.m. on St.‘s Ex. 68); (2) St.‘s Ex. 66, Tr. 54:11-55:12 (at



approximately 9:40 a.m. on St.‘s Ex. 68) and (5) the remainder of the interview after St.‘s

Ex. 66, Tr. 77:13 (beginning at approximately 9:50 a.m. on St.‘s Ex. 68). As to the latter

portion of the interview, this Court finds that the tenor of the interview changed

dramatically at the beginning of this section when Detective Slaughter stated that ―Those

texts are damaging to you . . . you‗re gonna [sic] be charged anyway, okay?‖ St.‘s Ex.

66, Tr. 77:17-18. Such a direct reference to the contents and the nature of the text

messages constitutes an exploitation of illegally obtained evidence. Moreover, from that

point forward, the text messages are explicitly used by the Detectives to attempt to force

a confession from the Defendant. The use of the illegally obtained text messages in the

interrogation of the Defendant began almost simultaneously with B.C.I.‘s illegal

photographing of the evidence and was too purposeful to evidence any attenuation of the

taint. Accordingly, this Court holds that the specified portions of the interview are so

closely related to Sgt. Kite‘s illegal search as to be subject to exclusion as fruits of the

poisonous tree.

Lastly, the Court must determine whether Defendant‘s written confession that

when an officer relied in good faith upon a facially valid warrant is admissible even if the
warrant is later invalidated).

129

followed his interrogation (St.‘s Ex. 67) is also subject to exclusion. At the outset, the

Court notes that the police obtained Defendant‘s written confession at the conclusion of

the interrogation and within hours of the principal illegality, namely Sgt. Kite‘s discovery

of the text messages. Moreover, the illegal viewing of the text messages not only

directed the Cranston Police Department to focus on Defendant as the target of its

investigation but, more importantly, convinced the Detectives that the Defendant was

guilty. There were no intervening circumstances to break the causal connection between

the illegal text messages and Defendant‘s written confession. On the contrary, the

illegally obtained text messages served as the impetus for the interrogation, the

ammunition for the Detectives‘ continued questioning of the Defendant, and the reason

they sought a written confession. Detectives Slaughter and Cardone repeatedly conveyed

to Defendant that he was going to be charged with murder solely based on his

incriminating text messages. See St.‘s Ex. 66, Tr. at 77:18; 91:21-22. Additionally,

throughout the interview, both Detectives accused Defendant of not telling the complete

truth. See id. at 78:7-11; 79:12-14; 84:4-14; 117:4-9. This Court is satisfied that the

Detectives‘ insistence that Defendant was concealing the truth was a direct consequence

of the Detectives‘ knowledge of the contents of the text messages.

Finally, the police obtained the Defendant‘s written confession only after repeated

references to the incriminating nature of the text messages where the Detectives quoted

from the text messages in an attempt to intimidate Defendant into confessing. See id. at

91:1-12; 93:11-13; 107:15-16. Importantly, the Defendant did not pen his written

confession until after the conclusion of his videotaped interrogation and, more

particularly, after the concluding portion of the interview that this Court already has

130

determined must be excluded.

In addition, the Detectives‘ general demeanor and the other threats to charge the

Defendant with murder, charge him regardless of his story and take his daughter away—

made in the course of questioning a dizzy Defendant about the text messages— constitute

the sort of coercive psychological pressure that exploits illegally obtained text message

evidence to try to obtain a confession. The exploitation of the illegally seized text

messages to obtain a confession reflects an abuse of the Fourth Amendment violation that

is inimical to the underlying principles of both the Fourth and the Fifth Amendments.

Accordingly, this Court finds that the Defendant‘s written confession would not have

been obtained but for the exploitation of the illegal text message evidence and thus is

subject to exclusion as fruit of the poisonous tree.

(4)

Additional Photographs of Contents of Cell Phones

Beyond the seizure of the phones and the interrogation of the Defendant, this

Court must determine if Sgt. Kite‘s illegal search of the LG cell phone also was the

impetus for the Cranston Police Department‘s subsequent efforts to seek warrants later in

the day on October 4, 2009 to obtain evidence of the contents of the cell phones that it

had seized. Upon learning of the incriminating nature of text messages on the LG cell

phone, the B.C.I. detectives and other police officers took steps to document further

certain text messages and other contents of the cell phones that were thought to have

potential evidentiary value. The resulting ―text message evidence‖ consists of: (1)

photographs of certain contents of the LG cell phone apparently taken at police

headquarters during the evening of October 4, 2009 (St.‘s Ex. 28); (2) photographs of

131

certain limited contents of the Metro PCS cell phone taken at the Cranston Police

Department headquarters on the evening of October 4, 2009 (St.‘s Ex. 31); and (3)

photographs of certain contents of the T-Mobile phone taken on October 29, 2009 (St.‘s

Ex. 30).71

This Court notes that warrants themselves, no less than other types of evidence,

may constitute fruits of the poisonous tree if the warrants were obtained by exploitation

of the illegality. In determining if warrants themselves are tainted, courts look to the

supporting affidavits to determine if any mention of the illegality or any information

obtained as a result of the illegality were used in the affidavits in order to obtain the

warrants. Any ―tainted‖ information then must be removed from the warrant affidavits as

such information is not permitted to be used. See Murray, 487 U.S. at 539 (stating that

the central tenet of forbidding the acquisition of evidence in a certain way is that illegally

acquired evidence may not be used at all). If, after the tainted evidence is removed from

the supporting affidavit, a court finds that probable cause remains to support the warrant,

then the warrant—with the tainted information removed—may be considered an

71
It was not until almost a month later, on October 28, 2009, that the police belatedly
obtained a warrant and took the photographs of limited contents of the T-Mobile cell
phone. Years later, the police also obtained additional text message evidence in the form
of an extraction report listing the text messages and other contents of the LG cell phone
made using Cellebrite software (St.‘s Ex. 32), following an additional warrant obtained
on June 8, 2012 (St.‘s Ex. 57). The Cellebrite software allows for a disgorgement of past
content of a cell phone that may not be apparent upon a visual examination of the phone.
It reportedly was not available to the police until relatively recently. This additional
search of the LG cell phone thus did not occur until after the Defendant filed his
suppression motions and just prior to this Court beginning the suppression hearing. As a
result of this timing and because of the different content of those later two warrants, this
Court will address the warrants from October 28, 2009 and June 8, 2012 and the evidence
obtained pursuant to them later in this Decision.

132

independent source, free of any taint from the illegality.72

This Court is of the view that the Cranston Police Department gathered this

evidence of the contents of these cell phones by exploitation of the knowledge it gained

through Sgt. Kite‘s illegal search of the text messages on the LG cell phone. But for his

discovery of the incriminating messages, this Court finds that this evidence would not

have been sought or collected. Indeed, the very purpose of securing this evidence was to

prove that the Defendant wrote the incriminating text messages found on the LG cell

phone and sent them to his girlfriend, Trisha Oliver. In addition, the police obtained

much of this evidence by using tainted portions of the Defendant‘s interrogation to assist

them in securing warrants—further evidence of the continuing taint in its criminal

investigation. Specifically, this Court emphasizes that the nearly identical affidavits for

the warrants used to obtain the contents of the LG cell phone (St.‘s Ex. 35) and Metro

PCS cell phone (St.‘s Ex. 34) are almost entirely based on Sgt. Kite‘s illegal search to

view the text messages. No other information is provided in the affidavits themselves

that would provide probable cause for the search of the contents of cell phones. The

contents of these warrant affidavits themselves prove that the photographs of the contents

of the LG cell phone (St.‘s Ex. 28) and the Metro PCS cell phone (St.‘s Ex. 31), taken on

October 4, 2009 pursuant to the warrants, are subject to exclusion as fruits of the

poisonous tree, as they are the direct result of warrants obtained using evidence from Sgt.

Kite‘s illegal search.

The contents of the T-Mobile cell phone obtained pursuant to the warrant (St.‘s

Ex. 56) obtained on October 28, 2009 are also subject to exclusion as fruits of the

72
This Court will address warrants as a potential independent source in more detail
subsequently.

133

poisonous tree. The affidavit for the warrant, signed by Det. Cardone, contains the same

language based on Sgt. Kite‘s illegal search as the other warrants, tainting the warrant as

well.73

Additionally, this Court reiterates its previous finding that the LG cell phone and

other cell phones were seized illegally because the seizures occurred prior to or went

beyond the scope of the first warrant. In addition, as noted earlier, the Defendant‘s cell

phone, too, was illegally seized either prior to or pursuant to the first warrant and not as

the product of a lawful search incident to arrest. These illegal seizures thus are

alternative—and discrete—―poisonous trees‖ that require the exclusion of evidence

obtained as a result of the seizures. The fruit of these illegal seizures includes any and all

of the photographs of the contents of these cell phones, whether taken at the apartment or

at police headquarters, as they are tainted by the illegal seizures of the cell phones

themselves. Put another way, the Cranston Police Department never should have seized

the cell phones from the apartment or the Defendant‘s person and, but for these illegal

seizures, would not have been able to take photographs of the contents of the cell phones,

had they acted lawfully. Consequently, the photographs of the contents of the LG cell

phone, the Metro PCS cell phone, and the T-Mobile phone are also fruits of the

poisonous tree because they were only obtained after and as a direct result of illegal

seizures.

(5)

Phone Records

This Court also finds that the phone records and communications that the

73
This Court will address this warrant for the T-Mobile cell phone in more detail
subsequently.

134

Cranston Police Department procured by warrants under § 2703 of the Stored Wire and

Electronic Communications and Transactional Records Act, 18 U.S.C. § 2701 et seq.,

(―SCA‖), are tainted.74 Section 2703 of the SCA allows government entities to compel

third-party service providers—i.e., cell phone companies—to disclose to law enforcement

the communications or records of a customer upon production of a valid warrant and

satisfaction of certain other procedural prerequisites. See 18 U.S.C. § 2703.

The documents that these cell phone providers produced in this case include: (1)

T-Mobile cell phone records and communications from 1:00 a.m. on October 3, 2009

through 12:00 p.m. on October 4, 2009 for an account in the name of the Defendant (St.‘s

Ex. 38); (2) T-Mobile cell phone records and communications from 3:00 p.m. on October

3, 2009 through 9:30 p.m. on October 4, 2009 for an account in the name of Mario

Palacio (St.‘s Ex. 41); (3) Verizon phone records and communications from 1:00 a.m. on

October 3, 2009 through 12:00 p.m. on October 4, 2009 for an account in the name of

Trisha Oliver (St.‘s Ex. 44); (4) Sprint Nextel phone records and communications from

1:00 a.m. on January 25, 2009 through 12:00 p.m. on January 25, 2009 for an account in

the name of Guida Andrade but referred to by the Cranston Police Department as a phone

number belonging to Rafael Nieves (St.‘s Ex. 48); and (5) Sprint Nextel phone records

and communications from 1:00 a.m. on September 28, 2009 through 12:00 p.m. on

74
These warrants include: a warrant to T-Mobile Law Enforcement Relations for the
phone records of the phone number (401) 699-7580 that has been identified as
Defendant‘s phone number (St.‘s Ex. 36); a warrant to T-Mobile for the phone records of
the number (401) 359-6789 that has been identified as Mario Palacio‘s phone number
(St.‘s Ex. 39); a warrant to Verizon Wireless for the phone records of the number (401)
486-5573 that has been identified as Trisha Oliver‘s phone number (St.‘s Ex. 42); a
warrant to Sprint/Nextel for the number (401) 454-9765 that has been identified as Rafael
Nieves‘ phone number (St.‘s Ex. 46); and a warrant to Sprint/Nextel for the number (401)
431-3626 that has been identified as Angie Patino‘s phone number (St.‘s Ex. 49).

135

October 4, 2009 for an account in the name of Angie Patino (St.‘s Ex. 51).

The affidavits supporting the multiple warrants that led to the production of these

phone records, unlike the first warrant in this case, clearly indicate that Sgt. Kite‘s illegal

viewing of the text messages was the basis for their application. All of the warrants for

the phone records contain the same information regarding Sgt. Kite‘s illegal search of the

LG cell phone and the first incriminating text message he read. See, e.g., St.‘s Ex. 49

(warrant for Angie Patino‘s cell phone records). Moreover, the multiple warrants were

obtained for the ostensible purpose of proving that ―DaMaster‖ of the 699 telephone

number was, in fact, Defendant. See St.‘s Ex. 49 (―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 . . . and would also prove that Michael

Patino is, in fact, ―Da Master‖). Only through Sgt. Kite‘s viewing of the incriminating

text messages, which were sent to the LG cell phone from ―DaMaster,‖ did the police

learn that ―DaMaster‖ was a person of interest. The Cranston Police Department sought

to use illegally-accessed information to gain legal access to incriminating evidence― by

definition, exploitation.

The fact that the police obtained most of this text message evidence and other

phone records pursuant to warrants does not suffice to erase the taint from the illegal LG

cell phone text messages because the very pursuit of these warrants was corrupted by that

initial search. Fruit of the poisonous tree may be direct or indirect; thus, the taint

germane to the pursuit of the warrants transfers to the warrants themselves and,

ultimately, to the evidence produced. Accordingly, this Court is satisfied that these later

warrants for cell phone records, as well as the evidence of cell phone communications

136

that the police obtained pursuant to these warrants, were the product of the exploitation of

the text message evidence from Sgt. Kite‘s initial illegal search.

Similarly, this Court finds that the records pertaining to use of the landline phone

at the apartment from 1:00 a.m. on October 3, 2009 through 12:00 p.m. on October 4,

2009, as obtained from Cox Communications, to be tainted for the same reasons as the

evidence obtained under the SCA. See St.‘s Ex. 55. The pursuit of the enabling warrant

(St.‘s Ex. 53), and thus the warrant and its produced evidence, is tainted because it was

founded on Sgt. Kite‘s illegal search of the LG cell phone. The Cranston Police

Department only knew to ask for such records as a result of Sgt. Kite‘s illegal viewing of

the incriminating text messages that set in motion the criminal investigation of the

Defendant. The affidavit for the warrant for the records of the landline phone is largely

identical to those for the various cell phone records, all focusing on Sgt. Kite‘s illegal

search of the text messages and asserting that the requested phone records were necessary

to prove that ―DaMaster‖ of the 699 phone number was, in fact, Defendant.75 With the

information about Sgt. Kite‘s search and the incriminating text message to ―DaMaster‖

removed, the warrant for the landline is similarly lacking in probable cause and is,

therefore, invalid. Accordingly, the records for the landline obtained pursuant to that

warrant are subject to exclusion as fruits of the poisonous tree.

Moreover, this Court is satisfied that neither the warrants for the phone records

nor the phone records themselves are attenuated enough from the illegal search in order

to dissipate the taint. The warrants for the phone records were requested within days of

75
The Court notes that the records from Cox Communications would not—and indeed,
did not—prove that the 699 phone number belonged to Defendant, as the phone records
only reveal the dates and times at which the 699 number called or was called by the
landline, without any evidence as to who was actually using either phone at the time.

137

the illegal search (on October 6 and October 8, 2009), and the State has presented no

evidence of any intervening circumstances that occurred in that time, e.g., any other

evidence that came to light, nor do the affidavits for the warrants themselves make any

mention of any other evidence that would have given the Cranston Police Department

probable cause to obtain the warrants. Finally—and perhaps most crucially—this Court

emphasizes that in this case, the Cranston Police Department obtained no less than nine

(9) different warrants for both phone records and the contents of the cell phones

themselves from affidavits that are nearly identical and all largely, if not entirely, based

solely on Sgt. Kite‘s illegal search. The affidavits also betray a troubling array of facts,

that are internally inconsistent and otherwise riddled with inaccuracies.76 The flagrancy

of the Cranston Police Department‘s conduct in pursuing its investigation of Defendant

and any and all phone records related to Defendant provides ample support for a finding

that the warrants for the phone records, and the phone records themselves, are fruits of

the poisonous tree and, consequently, subject to exclusion.

(iii)

Exceptions to the Exclusionary Rule

Having concluded that almost all of the challenged evidence is subject to

exclusion, this Court now must determine whether any of it still may be admitted at trial

76
The Court notes that this issue of inaccuracies and misstatements in the warrant
affidavits may need to be addressed in a Franks hearing. See Franks, 438 U.S. 154
(1978). Unsurprisingly, Defendant made a motion for a Franks hearing based on certain
of these false statements during the course of the suppression hearing. This Court will,
therefore, address the inaccuracies in the multiple warrants in detail later. For purposes
of the fruit of the poisonous tree analysis, this Court only reiterates that the numerous
inaccuracies also serve to cast additional doubt on the already-questionable validity of the
warrants.

138

pursuant to any established exception to the exclusionary rule. The United States

Supreme Court has stated that ―the interest of society in deterring unlawful police

conduct and the public interest in having juries receive all probative evidence of a crime

are properly balanced by putting the police in the same, not a worse, position that they

would have been in if no police error or misconduct had occurred . . . .‖ Nix v. Williams,

467 U.S. 431, 443 (1984). Accordingly, exceptions to the exclusionary rule have

developed as a means of mitigating the rule‘s sometimes overly harsh effects. In effect,

courts have come to recognize that ―evidence derived from sources separate from a

constitutional violation need not be suppressed under the exclusionary rule.‖ State v.

Barkmeyer, 949 A.2d 984, 998 (R.I. 2008). The inevitable discovery and independent

source doctrines have developed, therefore, as a means of effectuating this policy.

(1)

The Independent Source Doctrine

The independent source doctrine pertains to a ―particular category of evidence

acquired by an untainted search which is identical to the evidence unlawfully acquired.‖

Murray, 487 U.S. at 538. The independent source doctrine posits that ―[w]hen the

challenged evidence has an independent source, exclusion of such evidence would put the

police in a worse position than they would have been in absent any error or violation.‖

Barkmeyer, 949 A.2d at 998. The First Circuit Court of Appeals has observed that ―[i]n

the classic independent source situation, information which is received through an illegal

source is considered to be cleanly obtained when it arrives through an independent

source.‖ Murray, 487 U.S. at 539-40 (quoting U.S. v. Silvestri, 787 F.2d 736, 739 (1st

Cir. 1986)). Speaking of the independent source doctrine relative to the exclusionary

139

rule, the United States Supreme Court has stated:

The essence of a provision forbidding the acquisition of evidence in a
certain way is . . . not merely [that] evidence so acquired shall not be used
before the Court but that it shall not be used at all. Of course this does not
mean that the facts thus obtained become sacred and inaccessible. If
knowledge of them is gained from an independent source they may be
proved like any other.

Murray, 487 U.S. at 539 (quoting Silverthorne Lumber Co. v. U.S., 251 U.S. 385, 392

(1920)).

Under the independent source doctrine, a later-obtained valid warrant may permit

evidence seized pursuant to that warrant to be admitted in court, even where the evidence

was first observed during an illegal search. See id. at 541. In considering the

independent source doctrine as applied to warrants, a court may find itself tasked with the

heavy analytical endeavor of purging multiple affidavits of tainted content so as to see if

the requisite probable cause remains. See id. at 542 (discussing warrants in the context of

the independent source doctrine and holding that a warrant is an independent source

where probable cause persists upon removal of ―fruit of the poisonous tree‖).

The ultimate question . . . is whether the search pursuant to warrant was in
fact a genuinely independent source of the information and tangible
evidence at issue here. This would not have been the case if the agents‘
decision to seek the warrant was prompted by what they had seen during
the initial entry, or if information obtained during that entry was presented
to the Magistrate and affected his decision to issue the warrant.

Id. More specifically, as the Supreme Court explicitly clarified, a court ―must ask

whether [the warrant] would have been sought even if what actually happened had not

occurred – not whether it would have been sought if something else has happened.‖ Id.

n.3. Thus, for the independent source doctrine to apply, the principal illegality must be

irrelevant to the pursuit of the warrant. Id. at 542.

140

(2)

The Inevitable Discovery Exception

―The inevitable discovery doctrine with its distinct requirements is in reality an

extrapolation from the independent source doctrine: Since the tainted evidence would be

admissible if in fact discovered through an independent source, it should be admissible if

it inevitably would have been discovered.‖ Murray, 487 U.S. at 539. The doctrine ―is a

judicial recognition that, if the State established by a preponderance of the evidence that

the challenged evidence ultimately or inevitably would have been discovered by some

lawful fashion, ‗then the deterrence rationale [of the exclusionary rule] has so little basis

that the evidence should be received.‘‖ Barkmeyer, 949 A.2d at 998 (citing Nix, 467 U.S.

at 444). The doctrine essentially holds that where the ―evidence sought to be suppressed

‗would inevitably have been discovered without reference to police error or misconduct,

there is no nexus sufficient to provide a taint and the evidence is admissible.‘‖

Barkmeyer, 949 A.2d at 998 (citing State v. Firth, 708 A.2d 526, 529 (R.I. 1998)).

However, ―inevitability‖ is a difficult analytical concept that courts have, at times,

struggled to grasp. See Barkmeyer, 949 A.2d at 1010 (Flaherty, J., dissenting and

concurring in part); see also U.S. v. Cabassa, 62 F.3d 470, 474 (2d Cir. 1995). In its

simplest form, the inevitable discovery doctrine allows the prosecution to argue that an

independent source for the challenged evidence would have come to fruition had the

illegality not occurred. The inherent predicative element of the doctrine—e.g., the

challenged evidence ―would have‖ come to fruition—seems to invite, if not encourage,

speculation, but the United States Supreme Court has stated explicitly that ―inevitable

discovery involves no speculative elements.‖ Nix, 467 U.S. at 445 n. 5. It reasons that to

141

allow pure speculation would be to undermine the exclusionary rule and render its

deterrent effects powerless. The State, therefore, ―may not rely on speculation [when

arguing for the inevitable discovery exception] but rather must meet [its] burden of proof

based on ‗demonstrated historical facts capable of ready verification or impeachment.‘‖

Barkmeyer, 949 A.2d at 998 (citing U.S. v. Ford, 22 F.3d 374, 377 (1st Cir. 1994)

(quoting Nix, 467 U.S. at 445 n. 5.)).

In determining when the inevitable discovery exception is appropriate, the Fourth

Amendment scholar Wayne R. LaFave has explained:

The significance of the word ‗would‘ cannot be overemphasized. It is not
enough that the evidence ‗might‘ or ‗could‘ have been otherwise obtained.
Once the illegal act is shown to have been in fact the sole effective cause of
the discovery of certain evidence, such evidence is inadmissible unless the
prosecution severs the causal connection by an affirmative showing that it
would have acquired the evidence in any event.

6 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 11.4

(a) at 276 (4th ed. 2004). As Justice Flaherty stated, ―likely discovery is not inevitable

discovery.‖ Barkmeyer, 949 A.2d at 1010 (Flaherty, J., dissenting and concurring in

part). The particulars and circumstances surrounding the challenged evidence are thus

highly relevant to application of the inevitable discovery exception because search and

seizure occurs within a ―universe of factual situations.‖77 Barkmeyer, 949 A.2d at 998.

77
That evidence inevitably would have been discovered by legal means has been argued,
and found, in numerous contexts:

Courts have applied the doctrine when investigative procedures already
were in progress before evidence was discovered by illegal means. See
Nix, 467 U.S. at 449–50 (holding that the murder victim's body would
have been discovered even without the defendant's illegally obtained
statements, when the search for it had been underway and a grid system
showed that the area in question would have been searched soon); State v.

142

In effect, ―[t]he trial justice must be satisfied that the seizure of the evidence [is]

independent of the taint, and ‗it must be inevitable as well.‘‖ Id. (citing Silvestri, 787

F.2d at 740); see also Ford, 22 F.3d at 377 (adopting a flexible evaluation standard where

―independence and inevitability remain the cornerstones of the analysis‖).

(c)

Applicability of the Exceptions to the Exclusionary Rule

Here, the State arguably contends that Defendant‘s text messages should be

admitted at trial on account of the above-mentioned exceptions. The State presents two

distinct arguments to this effect. The first argument is that the challenged evidence is

independent of the taint because the text message evidence was discovered in multiple

ways that were removed in time, place, and cause from Sgt. Kite‘s principal illegality,

i.e., all of the searches that occurred under the challenged warrants. The second

argument is that discovery was inevitable because the evidence was actually, in verifiable

fact, obtained. These arguments, however, are misguided in light of the doctrines‘

designed purposes and governing legal standards. They incorrectly suggest that the sheer

Trepanier, 600 A.2d 1311, 1318–19 (R.I. 1991) (holding that the evidence
would have been discovered because the police had been searching in the
exact area where the evidence later was found). Courts also have applied
the doctrine when, pursuant to some standardized police procedure or
established routine, a certain evidence-revealing event definitely would
have occurred later. See State v. Firth, 708 A.2d 526, 529 (R.I. 1998)
(holding that fingerprints from the crime scene would have been matched
to the defendant because his fingerprints already were on file and the
police would have checked that database as part of routine procedure); see
also United States v. Almeida, 434 F.3d 25, 29 (1st Cir. 2006) (holding
that the drugs would have been found in the police's routine search of the
defendant after he legally was arrested).

Barkmeyer, 949 A.2d 984 at 1010 (emphasis added).

143

volume of the evidence, along with the multiple methods by which it was obtained,

equates to independence and inevitability.

In legal terms, the State has, at times, conflated the independent source doctrine

with the concept of ―attenuation.‖ Attenuation, as already articulated by this Court in

discussing the fruits of the poisonous tree doctrine, pertains to evidence that can be

reached through a ―but-for‖ exercise relative to the principal illegality but, on account of

certain factors, is determined to be sufficiently detached. See Jennings, 461 A.2d at 368

(listing the temporal proximity of the illegality, intervening circumstances, and the

purpose and flagrancy of the illegal police conduct as the factors that help determine

attenuation from the at-issue illegality). The independent source doctrine, comparatively,

applies only to evidence that was discovered wholly apart from the principal illegality.

The aforementioned ―but-for‖ exercise does not, ever, lead to the admission of evidence

under the independent source doctrine—that is, in effect, why the evidence is admitted.

See Silverthorne Lumber Co. v. U.S., 251 U.S. 385, 392 (1920).

To restate the Court‘s earlier findings, the challenged evidence was procured as a

result of the Sgt. Kite‘s violation of the Fourth Amendment. The Cranston Police

Department only knew to pursue the at-issue text messages, and other evidence against

Defendant, because of Sgt. Kite‘s illegal search. In this Court‘s view, the behavior and

focus of the Cranston Police Department changed undeniably upon the viewing of the

incriminating text messages by Sgt. Kite. As prohibited under the independent source

doctrine, there is an easily charted ―but-for‖ relationship between Sgt. Kite‘s principal

illegality and each and every method of obtaining the challenged evidence. The State has

failed to convince this Court that the police pursued the challenged evidence in any

144

manner that is completely separated from the principal illegality. The independent source

doctrine, therefore, cannot be applied in its traditional and correct form.

With regard to the State‘s argument for attenuation, as explained previously, this

Court is unconvinced that any has occurred. The vast majority of the Cranston Police

Department‘s investigative actions toward Defendant have a proximate relationship in

cause, and also in time, to the illegality, to say nothing of the fact that this Court has

significant doubts about the purity of the police work displayed by the Cranston Police

Department. Perhaps most importantly, there is also no obvious intervening

circumstance, if any at all, that existed to sever the connection between the illegality and

the challenged evidence. This Court is hard-pressed to identify any such event, and the

State has only argued attenuation implicitly, and without specificity, with respect to

various at-issue warrants. Still, the warrants obtained by the Cranston Police Department

cannot reasonably be considered attenuated from the taint. The warrants are not in and of

themselves intervening circumstances because they were all pursued as a direct result of

Sgt. Kite‘s illegal viewing of Defendant‘s text messages. Most of the warrants were also

obtained in close proximity time-wise to the illegality and contain information that can,

based upon the facts presently before the Court—internal inconsistencies, factual errors,

and the omission of critical information surrounding Sgt. Kite‘s search—plausibly be

labeled flagrant. It thus follows that the State‘s misguided argument that the independent

source doctrine is applicable on account of attenuation fails.

The State‘s doctrinal confusion also extends to a misapplication of the inevitable

discovery exception. The inevitable discovery doctrine exists for situations where the

legal pursuit of evidence was prematurely aborted because of its alternative prohibited

145

discovery. Barkmeyer, 949 A.2d at 998 (citing State v. Firth, 708 A.2d 526, 529 (R.I.

1998) (holding that the inevitable discovery doctrine permits the admission of tainted

evidence where it ―would have been discovered legally had the legal means not been

aborted because of the illegal seizure.‖). Rephrased, the inevitable discovery exception is

an independent source for challenged evidence that did not come to fruition as a result of

the at-issue illegality.

At the outset, this Court takes care to note that the doctrine of inevitable discovery

is analytically irrelevant here because the challenged evidence was actually, in fact,

obtained. Inevitable discovery addresses evidence that would have come to fruition apart

from illegality. Here, the challenged evidence did, in verifiable fact, come to fruition.

There was no aborting of the pursuit of any evidence because of the illegality. No

alternative method of discovery was interrupted. All of the channels of pursuit of the

evidence were seen through to completion by the Cranston Police Department. There is,

therefore, no need to argue or consider the hypothetical or abstract. The facts that this

Court is required to consider to determine the applicability of the independent source

exception are readily available. The analytical structure of the inevitable discovery

doctrine, itself an extrapolation of the independent source doctrine, is thus rendered

unnecessary.

Nevertheless, this Court will entertain the possibility of inevitable discovery so as

to provide clarity as to the parties‘ arguments. Assuming the Cranston Police Department

did not actually obtain the evidence, the inevitable discovery exception would remain

non-applicable because both prongs of its analysis, independence and inevitability, fail.

With regard to independence, the prong fails because Sgt. Kite‘s illegal search was, to the

146

Court‘s knowledge, instrumental in each and every investigative action of the Cranston

Police Department. There is nothing in the record that suggests a source for the evidence

that is sufficiently separate from Sgt. Kite‘s illegal search. While, as the State argues,

there may be independent sources, in the sense that the manners of procurement of the

evidence are descriptively different from one another—e.g., the physical search of the LG

cell phone versus the phone records for that phone—the channels of pursuit for the

challenged evidence all share the same starting point: Sgt. Kite‘s illegal search.

Independence in the context of the inevitable discovery doctrine is a different starting

point than the principal illegality. It is a total separation from the influence of the taint—

a complete lack of any relationship. To understand and accept the independence prong of

inevitable discovery to mean only a descriptive difference in the method of acquisition

would be clear legal error. This Court thus cannot accept the State‘s arguments for

inevitable discovery. Its very premise is analytically flawed.

Additionally, were it assumed that independence existed relative to the challenged

evidence, and were such evidence not actually obtained, the inevitable discovery doctrine

still would fail on account of the inevitability prong. The State, in spite of bearing the

burden of proof, has made minimal argument that the challenged evidence would have

inevitably been discovered. Upon diligently parsing the testimony, arguments, and

exhibits ostensibly presented in support of its argument, this Court is left, at best, with

indirect evidence that is primarily founded on inference. While it seems quite likely—as

influenced by the clarity of hindsight that can be difficult to analytically divorce from this

analysis—that the police would have eventually deduced the informative nature of

particular evidence related to cell phones and text messages, the existing jurisprudence

147

expressly dictates that conjecture is inappropriate. Faced with little to no substantiated

evidence of inevitability, and barred from speculation, this Court is limited in its

available findings. To find that the challenged evidence would have inevitably been

discovered would, in effect, either be to conclude that the evidence of record meets the

State‘s burden when it does not or to embrace speculation when it is specifically

disallowed. Both options undermine the exclusionary rule, and more importantly,

effectuate legal error. The inevitability prong of the analysis thus fails because, even if

this Court were inclined to conclude that discovery of the challenged evidence was

inevitable, there is nothing in the record that would allow the Court to justifiably convert

this belief from mere inference to convincingly verifiable fact.

It thus stands that the cornerstones of the inevitable discovery analysis—

independence and inevitability— are absent from the case at bar. This Court is, in sum,

not satisfied that the challenged evidence would have inevitably been acquired in a

manner that is independent of the at-issue taint. As certain analytical complexities are

inherent to some pieces of evidence, however, this Court will address that evidence

individually in light of the independent source and inevitable discovery doctrines.

(a)

The Scope of Sgt. Kite’s Search

With regard to independence, Sgt. Kite‘s illegal search of the LG cell phone

stands as the origin of any interest in Defendant‘s text messages and the other challenged

evidence. The Cranston Police Department was originally called to the scene only in an

emergency response capacity. Consequently, the efforts of the Cranston Police

Department were focused on assisting with Marco Nieves and looking for any obvious

148

source of his medical difficulties as opposed to investigating any crime. Sgt. Kite

testified that during his tour of the apartment with Trisha Oliver, he was searching for

toxic substances that Marco Nieves may have ingested. While certainly the potential that

Marco Nieves‘ condition was the result of a crime could not have been wholly

precluded—any time a young child is inexplicably unresponsive the possibility of foul

play must be considered—Sgt. Kite was not looking for evidence of a crime per se. By

his own admission, he was only searching, to a limited degree, for any obvious cause of

Marco Nieves‘s medical condition. Thus, a clear distinction can be drawn as to what the

police were primarily pursuing while on scene prior to Sgt. Kite‘s illegal search—

possible causes of Marco Nieves‘ condition—and what they were seeking after the

illegality—evidence relating to Defendant‘s text messages. The Cranston Police

Department‘s search of the cause of Marco Nieves‘ condition is therefore not an

independent source because its purpose was not to find evidence against Defendant. It

was, indeed, a totally separate search or source but not for the at-issue evidence. A true

independent source must be both separate from the principal illegality and reflect a search

for the actual challenged evidence.

Moreover, as the search for the cause of Marco Nieves‘s condition did not come

to fruition, the State also would have to prove inevitability. The State has provided the

Court with no evidence or verifiable fact that this search would have even led to

suspicion of Defendant, never mind his text messages and other specific evidence.

Accordingly, even if the search of the cause of Marco Nieves‘ condition were

independent of the taint, the inevitable discovery exception would not apply because the

State did not prove inevitability.

149

(b)

Trisha Oliver’s Consent

At first glance, Trisha Oliver‘s consent to search her LG cell phone (St.‘s Ex. 58)

may appear to be an independent source for the challenged evidence.78 To activate the

doctrine, however, the consent must have been procured in a manner that is, legally,

sufficiently independent. It thus is necessary for the consent to have occurred either

separate and apart from the principal illegality or relative to an intervening circumstance

that succeeded in divorcing the consent from the illegality. There simply is no evidence

before the Court of either element. This Court, upon considering the evidence of record,

is convinced that the Cranston Police Department‘s pursuit of Trisha Oliver‘s consent to

search the LG cell phone is tainted by Sgt. Kite‘s illegal search. But for his illegal search

and the resulting knowledge that there were text messages of evidentiary value to Marco

Nieves‘ condition on the LG cell phone, the officers would not have asked Trisha Oliver,

after the fact, for her consent. In addition, there were no intervening circumstances

between the time of the initial illegality and the time when the police requested consent to

otherwise dissipate the taint. Compare Wong Sun, 371 U.S. at 491 (finding that the

defendant‘s confession was sufficiently removed from the taint of his unlawful arrest

because of the intervening circumstance of having been released on his own recognizance

78
As an aside, this Court notes that there is at least some question as to the validity of
Trisha Oliver‘s consent. This Court questions whether it can truly be deemed to have
been valid consent, given the circumstances surrounding her giving of consent—when
she was at the hospital while her son was dying. This Court further notes that the police
also appear to have doubted the validity of the consent since they prepared and obtained a
warrant for the exact same evidence—the contents of the LG cell phone—within a couple
of hours of receiving her consent. The Court can see no reason to explain the duplicative
warrant for the LG cell phone except that the police also harbored doubts about the
consent‘s validity.

150

and the defendant voluntarily returning to the police several days later to make his

confession). Accordingly, this Court concludes that Trisha Oliver‘s consent is tainted by

the illegality and, therefore, cannot be an independent source to secure the text message

contents of the LG cell phone.

(c)

The October 28, 2009 Warrant for the T-Mobile Phone

The warrant for the contents of the T-Mobile cell phone dated October 28, 2009,

like all of the warrant affidavits that preceded it, is tainted by reference to Sgt. Kite‘s

illegal search. St.‘s Ex. 56. It is the first warrant affidavit, however, to make some

mention of a statement of Trisha Oliver‘s to provide additional evidence to support

probable cause for the warrant beyond the references to Sgt. Kite‘s illegal search. That

affidavit includes an additional paragraph following the detailing of Sgt. Kite‘s search

that reads, as follows:

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
[St.‘s Ex. 36]. 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. [St.‘s Ex. 42], and it
was verified in the results faxed to the Cranston Police, as Trisha Oliver
had stated, 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.

Id. (Emphasis added). This Court notes that both the warrants to T-Mobile and Verizon

Wireless referenced in this affidavit are also tainted, and thus invalid, because the

affidavits supporting them focus exclusively on Sgt. Kite‘s illegal search as the basis for

151

probable cause. The information regarding Sgt. Kite‘s illegal search, the prior warrants,

and Defendant‘s illegally-obtained testimony thus must be removed from this affidavit to

determine if probable cause still exists for issuance of the warrant, independent of the

taint, to allow the evidence collected pursuant to the warrant to survive under the

independent source doctrine.

The determination of probable cause then rests on the included statement that

Trisha Oliver exchanged text messages with Defendant. See Murray, 487 U.S. at 542

(stating that a warrant is not an independent source where probable cause does not persist

past removal of tainted content). While this statement does introduce the idea of text

messages, there is nothing within it, or elsewhere in the affidavit, that provides a nexus to

Marco Nieves‘ death or Defendant‘s possible culpability for his death. For this Court to

find probable cause, it would have to make a significant assumption as to the conduct of

Defendant. This Court cannot conclude that probable cause exists just because

Defendant and Trisha Oliver exchanged text messages relative to the time period when

Marco Nieves became ill.79 See, e.g., In re Search of Certain Cell Phones, 541 F.Supp.2d

1 (D.D.C. 2008) (―While [the two suspects] were in the garage where the drugs are

found, I am not ready to conclude that there is, ipso facto, a reasonable likelihood that

they have used their cell phones to sell drugs, thus justifying the search of its entire

contents.‖).

In drawing such an inference, this Court would be complicit with a cell phone

being legally searched on no more solid ground than the fact that it was used within a

79
This Court notes that warrants are properly judged according to the information
provided in their underlying affidavits and not on the information provided after the fact
or from outside sources. See Murray, 487 U.S. at 542 (stating probable cause must still
exist within the warrants underlying affidavit after the tainted content is removed).

152

certain time period of an alleged offense. A finding of probable cause in this instance

would be to say that no other connection to the alleged offense, other than two people

texting close in time to an alleged crime, is necessary for their cell phones to be searched.

This would, in effect, provide police departments with carte blanche to search

individuals‘ cell phones because of the ubiquitous use of cell phones and text messages;

after all, the typical adult sends or receives an average of 41.5 messages per day. Pew

Research Center 2011 Report at 2. It also would work to undermine the particularity

requirement of the Fourth Amendment. See Coolidge v. New Hampshire, 403 U.S. 443,

471 (1971); State v. Pratt, 641 A.2d 732, 736 (R.I. 1994).

This Court holds, therefore, that probable cause cannot be rightfully found, in this

instance, based on the mere mention of text messages. More is required—a connection of

some sort between the act of text messaging—or the contents of the text messages— and

Marco Nieves‘ death. This information is absent from the October 28, 2009 warrant and,

as a result, this Court cannot find that it is a genuinely independent source from Sgt.

Kite‘s principal illegality.

Additionally, this Court notes that the very pursuit of the October 28, 2009

warrant is tainted. The warrant‘s affiant, Det. Cardone, interrogated Defendant on

October 4, 2009 and, while questioning Defendant, repeatedly mentioned the text

messages at issue. Det. Cardone was thus aware of the incriminating nature of the text

messages and exploited that knowledge to conclude that the contents of the T-Mobile cell

phone were of interest and that a warrant should be pursued. Even if Det. Cardone was

not aware that the text messages were illegally seized, which is possible but unlikely, his

detective work and logic nonetheless benefited from knowledge of their existence. This

153

Court cannot conclude, therefore, that pursuit of the warrant itself was independent of the

taint of Sgt. Kite‘s illegal search of the LG cell phone.

(d)

The June 8, 2012 Warrant for Extraction of the LG Cell Phone

As previously determined, the other warrants for the cell phones‘ contents and

associated phone records do not contain probable cause when the tainted information

about Sgt. Kite‘s search is removed. This Court, however, finds it necessary to

specifically address the warrant obtained on June 8, 2012 that allowed for the extraction

of the LG cell phone in light of the independent source doctrine.80 See St.‘s Ex. 57. The

affidavit for the June 8, 2012 warrant is markedly different from the previous affidavits

prepared by the police in October of 2009. Most notably, the affidavit omits any mention

of Sgt. Kite‘s actions in picking up the LG cell phone and viewing the incriminating text

message. The affidavit also recounts the events surrounding the investigation of

Defendant with a specificity missing from the previous warrants, for example by

detailing the locations where Sgt. Kite observed the various cell phones.81 The affidavit

then continues by referencing witness statements of Trisha Oliver:

Trisha Oliver had provided conflicting accounts to rescue, police, and
hospital officials earlier in the day on 10/4/09 about her knowledge of the
cause of her son‘s injuries. In a written statement to detectives on 10/4/09
Trisha Oliver said on 10/3/09 she texted Michael Patino and asked what
had happened to her son, and Patino told her that he went to hit him and

80
The extraction report (St.‘s Ex. 32) includes the incriminating text messages to and
from ―DaMaster‖ and, therefore, if admissible, would allow the contents of Defendant‘s
alleged at-issue text messages to be admitted at trial as well.
81
The Court notes that in spite of this additional detail, the June 8, 2012 warrant
identifies the Metro PCS cell phone as being the one taken from Defendant at the
Cranston Police Station, in contradiction to Det. Cardone‘s affidavit and other evidence at
the suppression hearing.

154

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 on 10/4/09, Ms. Oliver was shown text messages that police had
viewed that morning on the LG Verizon Sidekick phone.

Id. (Emphasis added). The affidavit does not duplicate the contents of the text messages

but does mention that they appeared as having come from ―DaMaster‖ and that Trisha

Oliver identified ―DaMaster‖ as Defendant. Later in the affidavit, there is an additional

explanation as to the origin of the already-mentioned text messages:

[Sometime] after the boy‘s death on 10/4/09 your affiant obtained a search
warrant for the contents of the LG Verizon Sidekick phone [St.‘s Ex. 35]
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.

At the outset, the Court notes that, taken together, these last two sentences

implicitly concede that the LG cell phone was searched and that the text messages on it

were seized without a warrant, as the affidavit had previously mentioned that Marco

Nieves did not die until late in the afternoon on October 4, 2009. It follows then—as has

been previously mentioned and as the affidavit states—that the text messages seized

during that morning were seized before the warrant for the LG cell phone contents had

been signed.

In analyzing this affidavit further, this Court notes that it has been carefully

crafted to avoid any explicit mention of illegality and is, moreover, very misleading when

it comes to any potential illegality. Indeed, this Court finds that the amount of detailed

information given in the affidavit following the mention of the time of Marco Nieves‘

death and prior to the statement that the search warrant for the LG cell phone was not

obtained until afterwards was very likely motivated by a desire to obfuscate the fact that

the search of the LG cell phone occurred without a warrant. The Court finds that this

155

explanation is also supported by the deliberate omission of Sgt. Kite‘s name in

connection with searching the LG cell phone, naming him only as an officer who

observed the cell phones‘ locations at the apartment, while later stating only that

unidentified ―police‖ had viewed the text messages on the LG cell phone. The

misleading nature of the statements in the affidavit regarding the legality of the search to

view the text messages is troubling,82 but unavailing. The explicit references to the text

messages, including those referring to ―DaMaster,‖ all must be excluded from the

affidavit as tainted by the illegal search. Similarly, the above-quoted statements

regarding the warrant for the contents of the LG cell phone and the seizure of the text

messages also must be excluded. The Court then must consider whether the remaining

untainted portions of the affidavit support probable cause for issuance of the warrant such

that the extraction report for the LG cell phone produced pursuant to it is admissible

under the independent source exception.

Remaining in the warrant affidavit is the assertion regarding Trisha Oliver‘s

written statement to police that she had texted Defendant. The information about her

statement appears—at first blush—to provide an untainted, independent source that is

sufficient to establish probable cause. This Court has painstakingly reviewed the

assertions in the warrant regarding Trisha Oliver‘s statement and the related evidence in

the record to determine if her statement was, in fact, independent of the taint so as to

provide an independent source for the text message evidence in the extraction report.

Having done so, however, this Court finds that the State has failed to prove that Trisha

82
The Court notes that the misleading nature of the statements in the affidavit appear to
be of a kind that could be addressed in a Franks hearing. As Defendant has not
specifically challenged those statements in his pending motion for a Franks hearing,
however, this Court will not address this issue further.

156

Oliver‘s statement to the detectives was independent of the taint from Sgt. Kite‘s illegal

search. Additionally, this Court finds that the assertions regarding Trisha Oliver‘s

statement in the warrant are highly—and troublingly—misleading.

To begin with, this Court notes that the affidavit‘s language clearly leads to the

conclusion that Trisha Oliver‘s statement that mentioned texting the Defendant occurred

at a separate time, unrelated to the ―recorded interview sometime later on 10/4/09‖ where

she was shown the illegally-obtained text messages. Thus, the affidavit implies that

Trisha Oliver mentioned text messages of her own volition, uninfluenced by—and

entirely discrete from—the illegal search. The evidence, however, shows otherwise. The

first written statement given by Trisha Oliver on October 4, 2009 was taken at 12:30 p.m.

See St.‘s Ex. 76. Significantly, this is two hours before Trisha Oliver was asked for her

consent to search the LG cell phone and, therefore, before Trisha Oliver had any reason

to know that the Cranston Police were interested in or otherwise investigating the

contents of text messages and cell phones. Had Trisha Oliver‘s first written statement

mentioned texting Defendant about Marco Nieves‘ condition, this statement would

constitute an independent source. However, it does not. Her first statement only contains

a statement saying, ―My boyfriend said he went to hit [Marco] and he moved causing him

to hit [Marco] in the stomach.‖ See St.‘s Ex. 76 (Emphasis added). There is no mention

of either cell phones or text messages in the statement.

The next written statement by Trisha Oliver—obtained at the ―recorded interview

sometime later on 10/4/09,‖ as mentioned in the warrant affidavit— was taken at 6 p.m.

See St.‘s Ex. 78. This second statement occurred after Trisha Oliver had given her

consent to search the LG cell phone—thereby giving her reason to know that the

157

Cranston Police had seen the text messages on that phone.83 This Court presumes that

this written statement was taken after Trisha Oliver ―was shown text messages that police

had viewed that morning,‖ as stated in the June 8, 2012 warrant affidavit.84 St.‘s Ex. 57.

This second written statement of Trisha Oliver does mention text messages, stating, ―I

then texted Mike and asked what happened he said that he went to go hit [Marco] and

[Marco] moved and he ended up hitting [Marco] in the stomach.‖ St.‘s Ex. 78.

Significantly, this statement is almost exactly the same statement that is in the June 8,

2012 warrant affidavit, which reads: ―In a written statement to detectives on 10/4/09

Trisha Oliver said on 10/3/09 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.‖ St.‘s Ex. 57.

This Court finds it particularly troubling that the June 8, 2012 warrant affidavit clearly

attempts to make Trisha Oliver‘s statement regarding texting Defendant seem

independent of the taint from the text messages by saying Trisha Oliver‘s statement was

given to detectives before she was shown the text messages. 85 To the contrary, she did

83
This statement was taken by Detective Cardone so the Court notes that it is possible
that, at this time, Trisha Oliver also was aware that Defendant had been arrested.
84
This Court finds it highly improbable that the written statement was taken before the
interview and, therefore, before Ms. Oliver had been shown the at-issue text messages.
As an example, the Court notes that Defendant‘s written confession (St.‘s Ex. 67) was
obtained only after his interview had ended. St.‘s Ex. 66 & 68.
85
Indeed, this Court is convinced that the apparent error in the June 8, 2012 warrant
affidavit regarding when Trisha Oliver made the statement about texting Defendant was a
thinly-veiled attempt to mislead the Court into believing Trisha Oliver‘s statement was
untainted and independent of the illegality. Had this Court given up from exhaustion in
reviewing the volume of warrants and other evidence from the suppression hearing before
it got to the June 8, 2012 warrant affidavit and— most importantly, had it not gone
beyond the face of this craftily-composed warrant affidavit— it might not have labored to
dig deep into Trisha Oliver‘s statements themselves—put into evidence by the State on
the last day of the hearing—to discover the taint. This warrant affidavit is yet another

158

not give the statement to them before seeing the text messages, as evidenced by her two

written statements. Accordingly, Trisha Oliver‘s statement is not independent of the

initial illegality and thus cannot constitute an independent source for the text messages.

For Trisha Oliver‘s statements to be considered an independent source, this Court

emphasizes that the State would need to have demonstrated, by a preponderance of the

evidence, that she would have brought up her text message exchanges with Defendant

regarding Marco even had Sgt. Kite‘s search never occurred. This Court cannot find that

the State has met its burden in this regard nor does this Court find it likely that she would

have done so. The evidence before the Court shows a clear nexus between Sgt. Kite‘s

search and Trisha Oliver‘s statement about texting Defendant. Because of Sgt. Kite‘s

search, the Cranston Police Department was made aware of the crucial importance of text

messages and asked Trisha Oliver for her consent to search the LG cell phone. As a

result of the consent—which this Court already has deemed tainted— Trisha Oliver was

aware that the Cranston Police knew about the text messages on her phone. Significantly,

this Court notes that the at-issue text messages may also implicate Trisha Oliver.86 Ms.

Oliver thus had an incentive in her second statement to mention the text messages herself

and explain their incriminating nature. Ms. Oliver‘s statement regarding the text

messages, then, was obtained as a result of the initial illegality and must be regarded as

tainted by it.

Moreover, this Court further observes that the actions of the Cranston Police

example of the kind of statement that could be addressed in a Franks hearing, had
Defendant raised the issue.
86
For example, the first incriminating text message viewed by Sgt. Kite that was sent by
Trisha Oliver read ―Wat if I got 2 take him 2 da hospital wat will I say and dos marks on
his neck.‖ (Emphasis added).

159

Department in pursuing the investigation and obtaining almost a dozen warrants from the

night of October 4, 2009 through October 28, 2009 implicitly recognize that Ms. Oliver‘s

statement was tainted. In not a single warrant affidavit up until October 28, 2009 does

Sgt. Gates, the police affiant, mention Trisha Oliver or her statements on October 4,

2009. As previously noted, these warrant affidavits for phone records and cell phone

contents are all based almost entirely on Sgt. Kite‘s illegal search. It is not until the

belated October 28, 2009 warrant affidavit for the T-Mobile cell phone (St.‘s Ex. 56)—

the only one inexplicably prepared by Det. Cardone—that Trisha Oliver‘s statement is

ever mentioned and, in that warrant affidavit, the description of the statement is

purposefully limited; it states only that she had texted with Defendant during the relevant

time period but makes absolutely no mention of the incriminating nature of the texts. The

absence of a reference to text messages reflects a scrupulous attempt to avoid mentioning

them. This Court finds it highly unlikely that the Cranston Police Department would

have ignored Trisha Oliver‘s statement as a potential basis for probable cause to obtain

the contents of cell phones had the police believed Ms. Oliver‘s statement to be valid and

untainted. This Court is satisfied, therefore, that Trisha Oliver‘s statement is also tainted

by the illegality.

As such, it becomes clear that the June 8, 2012 warrant does not constitute an

independent source that can trigger the exception to the exclusionary rule and allow for

admission of the tainted text message evidence. The information in the warrant affidavit

that provides probable cause to obtain the extraction report of the LG cell phone is based

on the illegal viewing of the text messages and on Trisha Oliver‘s statement about texting

Defendant that is tainted by that illegality. Accordingly, the June 8, 2012 warrant must

160

be regarded as tainted by the initial illegality, thus making the extraction report obtained

pursuant to it (St.‘s Ex. 32), also tainted and subject to exclusion as fruit of the poisonous

tree.

As the State also appears to argue that the June 8, 2012 warrant is sufficiently

attenuated from the illegal search of the text messages to dissipate any taint, however,

this Court, in the interests of thoroughness, will further address the June 8, 2012 warrant

in light of any possible attenuation. The police obtained the June 8, 2012 warrant more

than two years after the illegality occurred; however, the lack of temporal proximity

alone does not suffice to prove attenuation. This Court emphasizes that there have not

been—nor has the State provided any evidence of—any intervening circumstances that

might serve to dissipate the taint. The absence of any intervening circumstance is made

apparent because none of the information in the warrant regarding Marco Nieves‘ death

and Trisha Oliver‘s statement regarding the text messages is unrelated to the illegal

search. This case is not one where new evidence has been discovered that provides an

unrelated, discrete source for illegally-obtained evidence.

Finally, this Court must consider the apparent purpose for obtaining the June 8,

2012 warrant. The Court does not find credible the ostensible purpose stated in the

warrant affidavit―that the extraction report was necessary to verify that the LG cell

phone belonged to, and was primarily used by, Trisha Oliver.87 This Court can conceive

of no rational purpose for obtaining the June 8, 2012 warrant except as a means of

attempting to prove an independent source for the at-issue text messages through a later-

87
The extraction report of the LG cell phone would not have provided any information to
disprove Defendant‘s purchase of the LG cell phone and would not have provided
additional information about his use of the phone.

161

obtained and facially-valid warrant. This finding is supported by the evident care with

which the police, presumably with the assistance of the Department of Attorney General,

drafted the affidavit, deliberately avoiding any explicit mention of Sgt. Kite‘s search of

the LG cell phone and attempting to make Trisha Oliver‘s statement about texting

Defendant sound independent of the illegal search. This Court is not to be fooled by such

sophistry—indeed, decries it—and cannot find that the June 8, 2012 warrant is

independent from the illegality. In so finding, this Court is mindful that the purpose of

the independent source doctrine is to ensure that the police are not put into a worse

position than they would have been in the absence of the illegality. See Barkmeyer, 949

A.2d at 998. In the circumstances of this case, this Court finds that permitting the June 8,

2012 warrant to be considered an independent source to allow for the at-issue text

messages to be admitted at trial would be to place the police in a better position than they

would have been in, if the illegality had not occurred.

This Court further notes that it was only because of the illegal seizure of the LG

cell phone that the Cranston Police Department had custody of that cell phone in order to

perform the extraction88 and it was as a result of Sgt. Kite‘s illegal search that the police

knew that the extraction report would include incriminating evidence against Defendant.

Especially when considering the repeated and flagrant nature of the police misconduct in

this case—the illegal searches and seizures, the multiple invalid warrants, the highly-

questionable conduct in handling the evidence, and the coercive methods used to obtain

Defendant‘s confession―this Court cannot find that the June 8, 2012 warrant is an

88
With regard to the illegal seizure of the LG cell phone, this Court notes that it provides
an alternative ground, to be discussed subsequently in this Decision, to require the
suppression of the extraction report as fruit of the poisonous tree. The extraction report
was only able to be performed by ―exploiting‖ the illegal seizure of the LG cell phone.

162

independent source. Further, the Court believes that permitting the text message

evidence to be admitted at trial pursuant to the June 8, 2012 warrant would be to put a

stamp of tacit judicial approval on the cascade of police illegalities that have brought us

to this day.

Neither the independent source nor the inevitable discovery exceptions to the

exclusionary rule apply to this case, as the State has not presented any evidence of an

independent source nor has it demonstrated inevitability. In addition, this Court must

emphasize that law enforcement‘s violations of the Fourth Amendment cannot be

belatedly repaired with the sort of chicanery that is manifest in the June 8, 2012 warrant

affidavit, regardless of the understandable desire to save relevant and probative evidence

from exclusion at trial. Mindful of this well-meaning motivation, this Court recalls the

words of Justice Brandeis:

Experience should teach us to be most on our guard to protect liberty
when the government‘s purposes are beneficent. Men [and women] born
to freedom are naturally alert to repel invasion of their liberty by evil-
minded rulers. The greatest dangers to liberty lurk in insidious
encroachment by men [and women] of zeal, well-meaning but without
understanding.

Olmstead v. U.S., 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). The allowance of

such a reparative warrant would undermine the Fourth Amendment to a debilitative

degree. It would, for all practical purposes, place the Fourth Amendment in the fallible

hands of government agents who are predisposed to overstepping the limits imposed by

the Constitution. Investigation is an inherent element of law enforcement and, at the very

least, a degree of invasion of privacy is inherent in investigation. Law enforcement is

thus motivated to test the Fourth Amendment, particularly when tasked with securing

justice for any number of crimes. It is therefore worth asking the following: what would

163

stop government agents, where the incentive is strong enough, from ignoring the

provided protections of the Fourth Amendment upon knowledge that their potentially

violative actions can be legally explained? See Murray v. U.S., 487 U.S. 533, 546-47,

(Marshall, J., dissenting) (discussing an analogous situation and reasoning that ―the

police [ ] know in advance that they have little to lose and much to gain by forgoing the

bother of obtaining a warrant and undertaking an illegal search.‖). The answer of this

Court is--very little. The combination of incentive and lack of consequence would

simply be too great to resist.

In light of this finding, this Court recalls that the purpose of the exclusionary rule

is ―to deter law enforcement officers from violating a defendant‘s rights.‖ Huy, 960 A.2d

at 556 (R.I. 2008). This Court is therefore mindful that to permit reparative actions—

such as the June 8, 2012 warrant—would be to promote the exact opposite. This Court,

as guardian of the protections provided by the Fourth Amendment, does not wish to be

party to such action. Accordingly, this Court is of the view that the fruits of the June 8,

2012 warrant must be excluded from trial.

(e)

Re-Seizures of the Cell Phones

Lastly, this Court will address the issue of the re-seizure of the cell phones by the

police—the LG cell phone (St.‘s Ex. 15), the Metro PCS cell phone (St.‘s Ex. 16), and

the T-Mobile cell phone (St.‘s Ex. 18)—after their seizure on the morning of October 4,

2009, in order to further search the contents of the phones and obtain an extraction report

of the contents of the LG cell phone. As has been previously stated, this Court has

determined that police illegally seized these cell phones. The cell phones were

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effectively re-seized,89 however, so the Cranston Police Department could photograph the

contents and perform the extraction on the LG cell phone.90 In particular, this Court

focuses on the re-seizure of the LG cell phone pursuant to the June 8, 2012 warrant that

allowed the police to extract its contents and record them in the extraction report, as that

report provides another source for the at-issue text messages. See St.‘s Ex. 32. The

Court emphasizes that had it not been for Sgt. Kite‘s illegal search, the police would not

have seized the cell phones on the morning of October 4, 2009. In fact, the police would

not—and, indeed, should not—have had physical possession of the cell phones in order

to further search their contents. In searching the contents of the cell phones further and

performing the extraction of data from the LG cell phone pursuant to the various

warrants, the police essentially re-seized the cell phones, as they would not otherwise

have had the cell phones in their custody had they not illegally seized the cell phones

without a warrant or limited their seizures to the scope of the first warrant obtained.

The United States Supreme Court explicated the concept of the re-seizure of

tangible evidence in Murray:

It seems to us . . . that reseizure of tangible evidence already seized is no
more impossible than rediscovery of intangible evidence already
discovered. The independent source doctrine does not rest upon such
metaphysical analysis, but upon the policy that, while the government
should not profit from its illegal activity, neither should it be placed in a
worse position than it would otherwise have occupied. So long as a later,
lawful seizure is genuinely independent of an earlier, tainted one (which

89
This Court notes that this concept of re-seizure does not apply to the phone records
obtained from the respective service providers, as the physical phones themselves were
not necessary to obtain those records.
90
While the State recently informed this Court that it intended to request warrants to
allow the State police to perform extractions of the Metro PCS and T-Mobile cell phones
as well, this Court has no knowledge, as of the time of this writing, as to whether it
obtained any such warrants or performed any additional extractions.

165

may well be difficult to establish where the seized goods are kept in the
police’s possession) there is no reason why the independent source
doctrine should not apply.

487 U.S. at 541-42 (emphasis added). In the instant case, this Court emphasizes that the

cell phones have been in police custody throughout this almost three-year-long saga,

running from the time when the police first seized the phones illegally on October 4,

2009 and the time when the phones were, in effect, re-seized in order to perform

additional searches of their contents. While in their custody, the evidence has not been

adequately secured nor has its chain of custody been ensured. Moreover, the later

seizures cannot be said to be lawful even if the cell phones were later re-seized and

searched pursuant to warrants obtained by the Cranston Police Department. The later

warrants were all—as has been previously discussed—tainted by the initial illegality.

There were no intervening circumstances to break the causal connection between Sgt.

Kite‘s illegal search and the later searches and seizures of the cell phones. It was only as

a direct result of Sgt. Kite‘s actions that the Cranston Police Department began pursuing

the contents of cell phones as containing relevant evidence as to the cause of Marco

Nieves‘ death.

As for the LG cell phone in particular, when the police performed the extraction

of its contents, the only possible ―intervening circumstance‖ to dissipate the taint from

the first seizure of the cell phone in October 2009 was the passage of time. As this Court

has previously noted, the passage of time alone is not sufficient to dissipate the taint. The

re-seizure of the LG cell phone was not in any way independent of the original seizure.

Accordingly, the independent source doctrine cannot save the re-seizures of the cell

phones and the fruits of the searches of their contents and extraction from exclusion.

166

Thus, the photographs of the contents of the cell phones and the extraction report of the

LG cell phone‘s contents are subject to exclusion as tainted by the initial, illegal search

on this ground as well.

(iv)

Defining the Evidence to be Excluded Under the Exclusionary Rule

In consequence of its analysis of the exclusionary rule and its exceptions, the

Court finds that the following evidence is subject to exclusion at trial: (1) the LG cell

phone (St.‘s Ex. 15); (2) the Metro PCS cell phone (St.‘s Ex. 16); (3) the iPhone (St.‘s

Ex. 17); (4) the landline phone (St.‘s Ex. 19); (5) the T-Mobile phone (St.‘s Ex. 18); (6)

the photographs of the contents of LG cell phone taken at Trisha Oliver‘s apartment (St.‘s

Ex. 14, Pictures 0037-0050); (7) the photographs of the contents of the LG cell phone

taken at police headquarters (St.‘s Ex. 28); (8) the photographs of the contents of the

Metro PCS cell phone (St.‘s Ex. 31); (9) the photographs of the contents of the T-Mobile

cell phone (St.‘s Ex. 30); (10) the contents of the LG cell phone extracted by use of the

Cellebrite software (St.‘s Ex. 32); (11) the phone records and communications of

Defendant provided by T-Mobile (St.‘s Ex. 38); (12) the phone records and

communications of Mario Palacio provided by T-Mobile (St.‘s Ex. 41); (13) the phone

records and communications of Trisha Oliver provided by Verizon (St.‘s Ex. 44); (14) the

phone records and communications of Rafael Nieves provided by Sprint Nextel (St.‘s Ex.

48); (15) the phone records and communications of Angie Patino provided by Sprint

Nextel (St.‘s Ex. 51); (16) the landline phone records for the apartment provided by Cox

Communications (St.‘s Ex. 55); (17) certain portions of Defendant‘s interrogation as

167

memorialized on videotape and in a written transcript (St.‘s Ex. 66)91; and (18)

Defendant‘s confession for the death of Marco Nieves (St.‘s Ex. 67).

Before determining the ultimate question of whether all of the above-listed

evidence must be excluded, this Court acknowledges that suppression of illegally

obtained evidence and its ―fruits‖ is not constitutionally mandated under the federal

Constitution.92 See Pa. Bd. of Probation and Parole v. Scott, 524 U.S. 357, 362-63

(1998). It is, rather, a judicially-created remedy to deter unconstitutional conduct on the

part of law enforcement. See id. The deterrence benefits of exclusion ―[vary] with the

culpability of the law enforcement conduct at issue.‖ Davis v. U.S., 131 S.Ct. 2419, 2427

(2011) (quoting Herring v. U.S., 555 U.S. 135, 143 (2009)). ―When the police exhibit

‗deliberate,‘ ‗reckless,‘ or ‗grossly negligent‘ disregard for Fourth Amendment rights, the

deterrent value of exclusion is strong and tends to outweigh the resulting costs.‖ Id.

In the instant case, the high cost to the State, should the tainted evidence be

91
As previously discussed, the tainted portions of the interview, as memorialized in the
transcript for reference, are: (1) St.‘s Ex. 66, Tr. 14:20-18:4 (at approximately 8:50 a.m.
on St.‘s Ex. 68); (2) St.‘s Ex. 66, Tr. 54:11-55:12 (approximately 9:30 a.m. on St.‘s Ex.
68); (3) St.‘s Ex. 66, Tr. 61:13-63:10 (at approximately 9:35 a.m. on St.‘s Ex. 68); (4)
St.‘s Ex. 66, Tr. 67:19-68:3 (approximately 9:40 a.m. on St.‘s Ex. 68) and (5) the
remainder of the interview after St.‘s Ex. 66, Tr. 77:13 (beginning at approximately 9:50
a.m. on St.‘s Ex. 68).
92
While Rhode Island‘s exclusionary rule is statutory— embodied in G.L. 1956 § 9-19-
25— and not a matter of common law, the Rhode Island exclusionary rule is interpreted
in accordance with the federal rule. See State v. Mattatall, 603 A.2d 1098, 1113 (R.I.
1992) (―From the time of the enunciation of the exclusionary rule in Mapp [v. Ohio, 367
U.S. 643 (1961)], this court has, with very few exceptions, followed the opinions of the
United States Supreme Court whether premised on the Fourth Amendment or on our own
statutory exclusionary rule. The Rhode Island exclusionary rule is a statute that has never
acquired or developed an independent body of jurisprudence.‖). Accordingly, this Court
will refer to the exclusionary rule as including both the federal judge-made doctrine and
the Rhode Island statute.

168

excluded, is not lost on this Court. The amount of relevant and probative evidence

regarding Defendant‘s culpability that is subject to exclusion speaks for itself in terms of

the potential societal cost that would be exacted were the evidence to be suppressed as a

result of the Cranston Police Department‘s actions.

Yet, here, this Court is convinced that exclusion is not only justified when

weighed against the societal costs, but necessary in order to deter future violations of the

Fourth Amendment. This Court finds that the actions of the Cranston Police Department

reveal an indifference to the requirements of the law, if not a willful violation of it.

Beginning with the illegal search that is at the heart of this case, this Court finds troubling

the fact that the evidence does not support Sgt. Kite‘s testimony regarding the impetus for

his first picking up the LG cell phone, i.e., the audible and visual alert of an incoming

message. Absent such an alert, it follows that Sgt. Kite picked up and viewed the

contents of the LG cell phone with no motivation aside from the desire—understandable

as it might be—to learn as much as possible regarding Marco Nieves and his condition.

In addition, this Court finds that the police illegally searched and seized all of the

other cell phones in evidence. Such action speaks to an utter disregard of the limits

placed on law enforcement by the Fourth Amendment. The amount and extent of

personal information about persons that may be readily gleaned from a search of a cell

phone should require heightened care to limit such searches to circumstances where the

contents of a cell phone may reasonably be expected to yield evidence related to what is

being investigated. Cf. Smallwood v. State, 61 So.3d 448 (Fla.App. 2011) (―We are

equally concerned that giving officers unbridled discretion to rummage through at will

the entire contents of one‘s cell phone, even where there is no basis for believing

169

evidence of the crime of arrest will be found on the phone, creates a serious and recurring

threat to the privacy of countless individuals.‖). The Fourth Amendment‘s privacy

protections would become largely meaningless if law enforcement were to be permitted

to search cell phones at will, with no other justification aside from the knowledge that the

contents of a cell phone provide unparalleled, easy access to a wealth of information

regarding every aspect of a person‘s life.

The State argues that Sgt. Kite‘s actions were limited in scope and made in good

faith considering the emergency situation that he faced and, as such, should not trigger

the exclusionary rule. This Court, however, finds the State‘s argument to be without

merit and based on a conflation of different strands of Fourth Amendment jurisprudence.

Warrantless searches, such as Sgt. Kite‘s search of the LG cell phone, are per se

unreasonable under the Fourth Amendment, as noted earlier in this Decision. This Court

emphasizes that there is no good faith exception to the warrant requirement nor is a

subjective determination of an officer‘s good faith legally significant to a determination

of whether a warrantless search fell within the exceptions. See Beck v. Ohio, 379 U.S.

89, 97 (1964) (―[G]ood faith on the part of the [officer] is not enough. If subjective good

faith alone were the test, the protections of the Fourth Amendment would evaporate, and

the people would be ‗secure in their persons, houses, papers, and effects,‘ only in the

discretion of the police.‖). The Fourth Amendment deals with objective standards; that

Sgt. Kite may have deemed the circumstances to be urgent does not suffice to justify an

intrusion into the alleged private communications between Defendant and Trisha Oliver

without an objectively reasonable justification to believe that a cell phone was somehow

related to Marco Nieves‘ condition. ―The interests in human dignity and privacy which

170

the Fourth Amendment protects forbid any such intrusions on the mere chance that

desired evidence might be obtained.‖ Schmerber v. California, 384 U.S. 757, 767-70

(1966).

Further, when the police sought and obtained the first warrant, they obtained a

very broad and general warrant, using that general warrant to justify the additional search

and seizure of cell phones, without regard for the particularity requirement of the Fourth

Amendment. The requirements of the Fourth Amendment are not to be set aside so

easily. See Arizona v. Gant, 556 U.S. 332, 349 (2009) (quoting Mincey v. Arizona, 437

U.S. 385, 393 (1978)) (―[T]he mere fact that law enforcement may be made more

efficient can never by itself justify disregard of the Fourth Amendment.‖). Likewise, the

Cranston Police Department‘s actions either in searching the LG Verizon cell phone or in

photographing its text messages cannot be justified by its belated and speculative claim

of the possibility of remote deletion. In addition, its actions cannot be justified by the

fact that the text messages thus obtained were probative of the cause of Marco Nieves‘

medical condition. It is axiomatic that a search may not be justified by what it turns up.

See, e.g., Byars v. U.S., 273 U.S. 28, 29 (1927); Lustig v. U.S., 338 U.S. 74, 80 (1949).

See also Olmstead v. U.S., 277 U.S. 438, 482-83, (1928) (Brandeis, J., dissenting),

overruled by Katz, 389 U.S. 347; and Berger v. New York, 388 U.S. 41 (1967) (―Here

the evidence obtained by crime was obtained at the government‘s expense, by its officers,

while acting on its behalf . . . for the purpose of securing evidence with which to obtain

an indictment and to secure a conviction. The evidence so obtained constitutes the warp

and woof of the government‘s case.‖).

Moreover, beyond the illegal search, this Court notes the troublesome drafting of

171

the warrant affidavits, as evidenced by the fact that all of the warrants obtained in

October 2009 are obviously based on the same affidavit with very little variation and,

furthermore, that the affidavits are internally inconsistent and riddled with inaccuracies.

In particular, this Court must emphasize the degree of contradiction as to the various cell

phones and their respective locations, manifested in the different affidavits. In an

investigation that was focused so heavily on cell phones, this Court finds the

contradictory warrant affidavits as to which cell phone was seized from Defendant at the

Cranston Police Station and which cell phone was seized in the apartment to be evidence

of a gross inattention to probative facts, at the very least, if not evidence of deliberate

errors made to mislead.93 Moreover, this Court finds that the conduct of the Cranston

Police Department in failing to ensure the chain of custody of the cell phones to be— in a

word— unbelievable, e.g., Sergeant Walsh keeping Defendant‘s cell phone in his pocket

for the better part of the day on October 4, 2009 and taking it to Judge Clifton‘s home to

get a warrant, Sgt. Kite doing the same with a cell phone, and B.C.I. bagging the

evidence in little unsealed brown paper lunch bags that were not sealed. Finally, this

Court notes with disapproval the way in which Detectives Cardone and Slaughter refused

to testify in full as to their activities outside of the room during the Defendant‘s

interrogation and, during the interrogation,94 repeatedly threatened to charge the

93
The warrant for the extraction of the LG cell phone (St.‘s Ex. 57), for example, stated
that the Metro PCS cell phone was seized from the Defendant at Cranston Police Station,
whereas the warrant for the contents of the T-Mobile phone (St.‘s Ex. 56) stated that the
T-Mobile cell phone was seized from Defendant there.
94
This Court notes that at the time Defendant‘s interview took place, Marco Nieves had
not yet died. While the seriousness of his condition may have justified a belief that he
would not recover, this does not, in the Court‘s opinion, justify the repeated statements
that Defendant would be charged with murder, no matter what Defendant said.

172

Defendant with murder and the loss of custody of his daughter and told the Defendant

that he would be charged regardless of what he told them. Additionally, after suggesting

the term ―body shot‖ as an apt term to describe Defendant‘s hitting of Marco Nieves, the

Detectives instructed Defendant to insert that very term into his confession after he had

written it without it. See St.‘s Ex. 66.

In all, the Court finds that the Cranston Police Department‘s actions—both with

regard to the illegal search and the ensuing investigation into Defendant‘s culpability—

manifested an overall attitude of gross negligence, if not downright recklessness, in

blatant disregard of the requirements of the law.

One branch of the government should not be permitted to use the flagrant
wrongdoing of another branch of government to punish a citizen. The cost
to society of the suppression of relevant evidence concerning a
defendant‘s guilt is not insubstantial, but it is a cost which it has been
concluded must be paid in such cases in order to assure greater adherence
to constitutional requirements.

Commonwealth v. Nine Hundred and Ninety-Two Dollars, 422 N.E.2d 767, 771 (Mass.

1981). Accordingly, this Court will not ―affirm by judicial decision a manifest neglect, if

not an open defiance, of the prohibitions of the Constitution,‖ by permitting the illegally

obtained evidence to be admitted at trial. Weeks v. U.S., 232 U.S. 383, 394 (1914).

B

The Involuntariness of the Confession

As an alternative ground for suppression of his confession, Defendant argues that

his confession was involuntary and made as a result of police coercion. In the instant

case, Defendant specifically claims that the police obtained his confession through

coercion by threatening him with the loss of his daughter and also that he was more

vulnerable to such coercion because of his physical condition arising from a lack of sleep.

173

It is well-settled under both the United States and the Rhode Island Constitutions

that a defendant‘s confession, if involuntary, cannot be used against him at trial. See

Dickerson v. U.S., 530 U.S. 428, 433-34 (2000); State v. Monteiro, 924 A.2d 784, 790

(R.I. 2007). In determining the voluntariness of a confession, the burden on the State is

high; it must produce clear and convincing evidence that the confession was a product of

a defendant‘s clear and rational choice. See State v. Ortiz, 448 A.2d 1241 (R.I. 1982). A

determination of the voluntariness of a defendant‘s confession is made on the basis of the

totality of the circumstances, including the behavior of the defendant and the behavior of

the interrogators, with the ultimate test being whether the defendant‘s statements were the

product of his free and rational choice or the result of coercion that overbore the

defendant‘s free will at the time of the confession. See State v. Briggs, 756 A.2d 731,

738 (R.I. 2000). ―A statement is involuntary if it is extracted from the defendant by

coercion or improper inducement, including threats, violence, or any undue influence that

overcomes the free will of the defendant.‖ Id. (quoting State v. Humphrey, 715 A.2d

1265, 1274 (R.I. 1998)).

[M]ore subtle methods [of interrogation], though sometimes harder to
perceive, are equally to be condemned when they trammel on the rights of
those in custody . . . it may take a discerning eye to tell those that are
fundamentally unfair from those which are no more than permissible
instances in which the police have played the role of a ―midwife to a
declaration naturally born of remorse or relief, or desperation, or
calculation.‖

Id. (quoting People v. Tarsia, 405 N.E.2d 188, 192 (N.Y. 1980)). One of the methods of

interrogation which courts have condemned as rendering a confession involuntary is the

use of threats made against a suspect‘s family, such as threatening a suspect with the loss

of custody of a child. See Streetman v. Lynaugh, 812 F.2d 950, 957 (5th Cir. 1987); U.S.

174

v. Tingle, 658 F.2d 1332, 1336-37 (9th Cir. 1981) (acknowledging that ―the

psychological coercion generated by concern for a loved one could impair a suspect's

capacity for self-control, making his confession involuntary.‖) (quoting U.S. v. McShane,

462 F.2d 5 (9th Cir. 1972)).

This Court will first address the threats made regarding the custody of Jazlyn.

This sort of psychological coercion has been found to make a confession involuntary.

See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (―It is thus abundantly clear that

the petitioner‘s oral confession was made only after the police had told her that state

financial aid for her infant children would be cut off, and her children taken from her, if

she did not ‗cooperate.‘ . . . [A] confession made under such circumstances must be

deemed not voluntary, but coerced.‖). Indeed, in Tingle, the court cited the ―relationship

between parent and child‖ as a ―primordial and fundamental value of our society,‖ and

found coercion where police made a mother reasonably fear, during her interrogation,

that she would not be allowed to see her child for a long time. See Tingle 658 F.2d at

1336.

Similarly, in the instant case, Detective Slaughter not only threatened Defendant

with the loss of custody of his daughter, but also stated, ―You‘re not gonna [sic] have a

chance to say goodbye to your own daughter.‖ See St.‘s Ex. 66, Tr. at 114:15-16

(occurring at approximately 10:30 a.m. on St.‘s Ex. 68). He also threatened to charge

Trisha Oliver with conspiracy in trying to conceal what had happened in order to

strengthen his assertion that Defendant‘s daughter Jazlyn would end up in State custody.

See id. at 114:19-115:6. This Court notes with disapproval that the explicit and repeated

invocations of DCYF and the threat of the loss of custody of Jazlyn cross the line of what

175

has been deemed to be acceptable methods of questioning in an interrogation. See

Lynumn, 372 U.S. at 534.

In addition, this Court acknowledges that the Defendant‘s interrogation took place

over the course of three hours, after Defendant had been waiting at headquarters for more

than an hour, and moreover, that he only had slept for a couple of hours the night before.

There is evidence in the record suggesting that Defendant‘s physical condition affected

the interview when, toward the end of the interrogation, Defendant stated that he was

dizzy and Det. Cardone actually said to Defendant ―You don‘t look all right.‖ See Ex.

66, Tr. at 73:16.

Yet, these findings regarding the threats to place Jazlyn in State custody and

Defendant‘s physical condition do not end the analysis. In determining whether a

defendant‘s will was ultimately overborne, a court must assess the totality of all the

circumstances, including characteristics of the accused, such as youth, the lack of

education, low intelligence, and previous experience with law enforcement. See

Schneckcloth v. Bustamonte, 412 U.S. 218, 226 (1973). While this Court finds that the

threats to place Defendant‘s daughter in State custody and Defendant‘s physical

condition, may not, in and of themselves, have induced Defendant to confess, this Court

is ultimately unconvinced that the State has met its burden of proving by clear and

convincing evidence that Defendant‘s confession was entirely voluntary. In its review of

the details of the interrogation, this Court is particularly troubled by the Detectives‘

increasingly threatening demeanor and words. As has been previously mentioned, the

Detectives repeatedly made reference to the incriminating nature of the text messages

and—more significantly—told Defendant that regardless of what he said during the

176

interrogation, he would be charged anyway. Specifically, this Court emphasizes the

manner in which the Detectives persistently suggested that Defendant would be charged

with murder with the only question being which degree. See St.‘s Ex. 66, Tr. 77:20,

96:20-23. The Detectives‘ apparent unwillingness to believe anything other than a full

confession of guilt, as evidenced by the constant theme during questioning that

Defendant was not telling the truth, especially when combined with Defendant‘s

suggestibility—his willingness to concede to the suggestions of the Detectives

particularly as the threats escalated and his physical condition deteriorated—make the

overall voluntariness of Defendant‘s confession questionable.

Further, this Court must focus on the Detectives‘ behavior during the

interrogation itself and when Defendant was writing his confession regarding the term

―body shot.‖ The term, given its meaning and origins according to Det. Cardone, as a

boxing term, has clearly incriminating connotations. This Court emphasizes with

disapproval that the term was first introduced and repeatedly used by Det. Cardone in his

questioning of Defendant; it was not a term introduced by Defendant and it is not even

clear to this Court that he understood its meaning. Most troubling of all, Det. Slaughter

instructed the Defendant to add the body shot language to his written confession after

Defendant had finished writing it.95 This repeated insistence on the use of the term ―body

shot‖ exemplifies an act by law enforcement of putting words into Defendant‘s mouth

that is tantamount to writing the confession for the Defendant. The ―body shot‖ term
95
Defendant‘s lack of protest regarding the insertion of the term ―body shot‖ may be the
most blatant and troubling instance of Defendant‘s suggestibility. This Court does not
find that a person, who was truly cognizant of the circumstances and the implications of
the term, would have agreed to such an instruction. Defendant‘s apparent agreement
makes his knowledge and understanding of the statement—necessary to render his
confession truly a product of free and rational choice—highly questionable.

177

underscores both the troubling aspects of the Detectives‘ behavior during the

interrogation and the Defendant‘s lack of understanding and generally tractable behavior.

This Court further notes that the use of the illegally obtained text messages

impermissibly coerced Defendant into confessing, making Defendant‘s confession also

tainted by the illegal search. In so finding, this Court emphasizes that even assuming,

arguendo, that the text messages were not the product of an illegal search, the use of the

text messages was coercive. The text messages were used by the Detectives to

essentially convince Defendant that he had no choice but to make a guilty confession,

regardless of what might have actually occurred. This is an impermissible method of

extracting a confession, regardless of whether the evidence so used was legally or

illegally obtained. When considering the totality of the circumstances of the Detectives‘

general demeanor during questioning, their threats, Defendant‘s lack of education, his

suggestibility, his deteriorating physical condition, and the use of the illegally obtained

text messages, this Court is not convinced that the State has proven clearly and

convincingly that either Defendant‘s oral or written confession were voluntary.

Accordingly, this Court finds that the entirety of Defendant‘s interrogation beginning

from St.‘s Ex. 66, Tr. 77:17 (beginning at approximately 9:50 a.m. on St.‘s Ex. 68) and

Defendant‘s written confession (St.‘s Ex. 67) must be excluded as involuntary in

violation of his due process rights under the State and Federal Constitution.

C

Motion for a Franks Hearing

Having addressed at length Defendant‘s various motions to suppress, this Court

will now turn to Defendant‘s additional motion for a Franks hearing, as made during the

178

course of the suppression hearing. During the course of the hearing, Defendant‘s counsel

began to probe into both the procedure used to obtain certain warrants and the veracity of

particular statements by the police included in their supporting affidavits. During the

questioning of Sgt. Gates, the State objected on account that the defense was, to

paraphrase, conducting an unofficial Franks hearing rather than a simple suppression

hearing. The State, arguendo, took further issue that notice of the supposed ―Franks

hearing‖ was not provided, thus leaving it with no opportunity to defend itself or prepare

its arguments. Defense counsel responded that his line of questioning was critical to his

proper representation of the Defendant. As a result, the Court asked defense counsel if he

desired a Franks hearing in addition to the at-bar evidentiary hearing on the Defendant‘s

motions to suppress. After a short recess, defense counsel submitted a hand-written

motion for a Franks hearing which it later supplemented with a more comprehensive, and

typed, motion. The Court acknowledged the Franks motion, provided assurance that it

would be addressed accordingly, and directed the parties to refocus on the matter at hand.

Afforded time to consider the governing legal standard in light of these events,

this Court is prepared to rule on whether the Defendant has made a sufficient preliminary

showing as to the affiant‘s alleged deliberate and/or reckless falsehoods or omissions in

the affidavits submitted in support of the warrants at issue. This Court will reserve

decision, however, pending further argument, as to the issue of probable cause and

whether a Franks hearing is ultimately required.

In Franks v. Delaware, the United States Supreme Court addressed the handling

of warrants suspected of being obtained through ―deliberate or reckless inclusion of false

or misleading material statements in a warrant application and affidavit.‖ 438 U.S. 154

179

(1978); State v. DeMagistris, 714 A.2d 567, 574 (R.I. 1998). The Court held that ―[t]here

is a presumption of validity‖ with respect to affidavits that support search warrants.

Franks, 438 U.S. at 171-2. Thus, ―[t]o mandate an evidentiary hearing, the challenger‘s

attack must be more than conclusory and must be supported by more than a mere desire

to cross-examine.‖ Id.

Franks specifically dictates that:

There must be allegations of deliberate falsehood or of reckless disregard
for the truth, and those allegations must be accompanied by an offer of
proof. They should point out specifically the portion of the warrant
affidavit that is claimed to be false; and they should be accompanied by a
statement of supporting reasons. Affidavits or sworn or otherwise reliable
statements of witnesses should be furnished, or their absence satisfactorily
explained. Allegations of negligence or innocent mistake are insufficient.
The deliberate falsity or reckless disregard whose impeachment is
permitted today is only that of the affiant, not of any nongovernmental
informant. Finally, if these requirements are met, and if, when material
that is the subject of the alleged falsity or reckless disregard is set to one
side, there remains sufficient content in the warrant affidavit to support a
finding of probable cause, no hearing is required. On the other hand, if the
remaining content is insufficient, the defendant is entitled, under the
Fourth and Fourteenth Amendments, to his [or her] hearing. Whether he
[or she] will prevail at that hearing is, of course, another issue.

Id; State v. Verrecchia, 880 A.2d 89, 100 (R.I. 2005). It therefore stands that there are

two distinct steps to establish a right to a Franks hearing. First, the defendant must make

the requisite preliminary showing that a statement in a warrant affidavit is deliberately

false or made with reckless disregard for the truth or is a statement that is deliberately or

recklessly omitted, so as to render the warrant affidavit false or misleading. See Franks,

438 U.S. at 171-172; U.S. v. Scalia, 993 F.2d 984 (1st Cir. 1993) (stating that a

comparable showing is required to ―establish that technically accurate statements by an

affiant have been rendered misleading by material omissions.‖). This showing must be

180

made with specificity and in a manner that is ―more than conclusory.‖ Franks, 438 U.S.

at 171-172.

Second, upon the defendant meeting this burden, the Court must set aside the

―material subject to falsity or reckless disregard‖ to determine if the remaining content of

the warrant affidavit ―support[s] a finding of probable cause.‖ Id. If probable cause can

be found, no Franks hearing is required. Where probable cause is absent, the defendant is

entitled to a Franks hearing. See id. At the hearing, the defendant is required to

establish, by a ―preponderance of the evidence,‖ that the affiant included the challenged

statement in the affidavit, or omitted such a statement, ―knowingly or intentionally or

with reckless disregard for the truth.‖ Id. If the defendant meets his or her burden in that

regard, the warrants must be voided and any evidence gathered from the execution of the

warrants must be excluded at trial. Id.

Here, the Defendant challenges the warrants requesting and enabling the search

of: (1) the Metro PCS cell phone (St.‘s Ex. 34); (2) the LG cell phone (St.‘s Ex. 35); (3)

the phone records and communications of Defendant (St.‘s Ex. 36); (4) the phone records

and communications of Mario Palacio (St.‘s Ex. 39); (5) the phone records and commun-

ications of Trisha Oliver (St.‘s Ex. 42); (6) the phone records and communications of

Rafael Nieves (St.‘s Ex. 46); (7) the phone records and communications of Angie Patino

(St.‘s Ex. 49); (8) the phone records and communications of the landline phone of Trisha

Oliver‘s apartment (St.‘s Ex. 53); (9) the T-Mobile Sidekick cell phone (St.‘s Ex. 56);

and (10) the data stored on the LG cell phone for a second time using Cellebrite mobile

forensic technology (St.‘s Ex. 57). Within the underlying affidavits for these warrants,

Defendant has questioned multiple statements sworn to under oath: (1) that Sgt. Kite

181

heard an audible signal that induced his search of the LG cell phone; (2) that Sgt. Kite

viewed a text message reading ―Wat if I got 2 take him 2 da hospital wat will I say and

dos marks on his neck‖ upon attempting to disconnect from the LG cell phone; (3) that

the police seized a Metro PCS cell phone from Defendant at Cranston Police Department

headquarters; (4) that the type of injuries suffered by Marco Nieves were consistent with

child abuse and not the type sustained from a single accidental strike; (5) that the LG cell

phone belonging to Trisha Oliver was voluntarily turned over to the Cranston Police

Department; and (6) that Rafael Nieves received a voicemail from Defendant on January

25, 2009 in which the Defendant threatened to punch Marco Nieves. These recited

statements provide sufficient detail as to which assertions in the affidavits Defendant

believes to be have been made falsely or with reckless disregard of the truth.

The first question for the Court, therefore, is whether the assertions of falsity or

reckless disregard are substantiated with evidence that is more than conclusory. While

this showing is typically made by the filing of affidavits in support of a request for a

Franks hearing, in this case Defendant relies on evidence from the suppression hearing.

It is perfectly proper for him to do so. See Franks, 438 U.S. at 171-172 (recognizing that

the preliminary showing may also be made using ―sworn or otherwise reliable testimony

from witnesses‖). This Court is further satisfied that the physical evidence introduced

before this Court during the suppression hearing and properly verified in testimony meets

the standard of ―otherwise reliable‖ evidence that may be introduced in support of the

preliminary showing for a Franks hearing.96 See U.S. v. Chesher, 678 F.2d 1353 (9th Cir.

96
Both parties have agreed to allow this Court to consider that the evidence introduced at
the suppression hearing may be used by the Defendant to establish that he can make the
preliminary showing under Franks.

182

1982) (where the court considered all of the evidence in the record in order to determine

if the substantial preliminary showing was made, including a report made by a law

enforcement agency).

At the outset, this Court will briefly note that the State has contested Defendant‘s

standing to challenge several of the warrants under Franks. This Court will not further

address standing at this point, as it previously reserved decision on the standing issue, at

the request of the State and with the consent of the Defendant, at the conclusion of the

suppression hearing.97

This Court will proceed to address the specific statements within the warrant

affidavits which Defendant has challenged as being false or made with reckless disregard

for the truth. Regarding the assertions in the affidavits that Sgt. Kite heard the LG cell

phone ―ring‖ and that he viewed an incriminating text message in his attempt to

disconnect,98 Defendant has offered substantial evidence to the contrary. The data

obtained from the LG cell phone using the Cellebrite mobile forensic technology, as

admitted into evidence before the Court (St.‘s Ex. 32), does not display the ―insufficient

funds‖ text message essential to the version of events to which Sgt. Kite testified. The

message itself was not found on the cell phone, and the log of text messages sent and

received on the LG cell phone does not show an ―insufficient funds‖ message to have

been received until days later. In addition, this Court has rejected Sgt. Kite‘s version of

97
The Court does note, however, that based on its logic regarding standing earlier in this
Decision, it appears that the Defendant may well have standing to challenge the warrants
at issue here. Furthermore, the State has not previously suggested that Defendant did not
have standing to contest any of the challenged warrants for purposes of his suppression
motions.
98
The statement regarding Sergeant Kite‘s interactions with the LG cell phone is in every
challenged warrant with the exception of the June 8, 2012 warrant. (St.‘s Ex. 57)

183

the events surrounding his search of the LG cell phone. This Court thus finds that

Defendant‘s offerings as to the potential falsity of statements surrounding Sergeant Kite‘s

interactions with the LG cell phone to be more than conclusory.

With respect to the assertion that the Metro PCS cell phone was taken off

Defendant‘s person at Cranston Police Department headquarters, Defendant cites the

inconsistent testimony of various officers who testified at the evidentiary hearing as to

the names and locations of multiple phones. The LG cell phone, T-Mobile Sidekick cell

phone, and Metro PCS cell phone are incorrectly referenced throughout the supporting

affidavits for the at-issue warrants. The LG cell phone is commonly referred to as the LG

Verizon Sidekick when the Sidekick model of cell phone is particular to T-Mobile.99 The

affidavits are also internally inconsistent regarding the seizure of the Metro PCS cell

phone. They state that the police seized the Metro PCS cell phone both at the crime

scene and off of Defendant‘s person at the Cranston Police Department headquarters.

The testimony of several officers of the Cranston Police Department at the suppression

hearing and one warrant affidavit state that the T-Mobile cell phone was the phone seized

from Defendant at headquarters.100 Moreover, the return for the first warrant for the

apartment lists the Metro PCS cell phone as one of the items seized from the apartment.

See St.‘s Ex. 22. Further coloring these errors is that the sworn affiant on the multiple

99
This Court notes that any confusion regarding the makes and models of the cell phones
is particularly troubling given the number of cell phones involved in this case. The
Cranston Police Department‘s early knowledge that cell phones were of central
importance to this case would appear to require the officers to take even more care to
ensure that the multiple cell phones were not confused.
100
Significantly, the warrant for the contents of the T-Mobile phone (St.‘s Ex. 56) is the
only one of the challenged warrants that states that the T-Mobile cell phone was the one
seized from Defendant at headquarters.

184

affidavits, Sgt. Gates, testified that he was unaware of which phone was seized at the

Cranston Police Department headquarters.

This Court finds troubling the inconsistencies and uncertainties surrounding

where each cell phone was seized that have persisted throughout this investigation. This

Court, at a minimum, must question the Cranston Police Department‘s procedures

regarding the chain of custody of evidence if the Department is unable to consistently and

accurately attest to the location from where two central pieces of evidence to an

investigation were seized. This Court, in light of these findings, holds that Defendant has

met his evidentiary burden to establish, in non-conclusory fashion, the potential falsity of

the statement that the Metro PCS cell phone was seized at Cranston Police Department

headquarters.

Through the totality of the evidence before the Court, it also can be deduced that

the statement concerning the LG cell phone being turned over voluntarily to the Cranston

Police Department is potentially false. The supporting affidavits contain the assertion

that the LG cell phone was voluntarily turned over to the police by Trisha Oliver.101 This

statement stands in contrast, however, to other documents produced by the Cranston

Police Department that are before the Court. The Cranston Police Department received a

warrant to search Trisha Oliver‘s apartment and consequently compiled a list of all

evidence that was seized. This list included the LG cell phone that the Cranston Police

Department suggests was voluntarily turned over by Trisha Oliver. The Cranston Police

Department made inconsistent statements in the record, therefore, that the LG cell phone

101
The statement that the LG cell phone was voluntarily turned over is included verbatim
in every challenged warrant with the exception of the June 8, 2012 warrant. (St.‘s Ex.
57)

185

was both voluntarily turned over to the police by Trisha Oliver and seized by them

pursuant to a warrant. Moreover, the manner in which the events surrounding the LG cell

phone were presented to Judge Clifton is, at the very least, questionable. The fact that the

Cranston Police Department stated in the warrant affidavit that Trisha Oliver voluntarily

turned over the LG cell phone and explicitly failed to mention that the LG cell phone was

searched before that time, without a warrant, creates the impression that the LG cell

phone was legally searched. This is undoubtedly misleading. The Cranston Police

Department, in effect, represented that the police obtained the critical evidence from the

LG cell phone lawfully when, at best, that fact was not clear. In following, the Court

finds that the Defendant has supplied sufficient evidence to call into question the truth of

the statement regarding the turning over of the LG cell phone.

This Court also finds that the Defendant has made a preliminary showing of

falsity or reckless disregard as to the statement in the warrant affidavits that Rafael

Nieves received a voicemail on his cell phone from Defendant on January 25, 2009 in

which he threatened to punch Marco. In support of his preliminary burden, Defendant

has presented an affidavit of the Defendant in which he swears that he never contacted

Rafael Nieves from 699-7580 on that date. In addition, the phone records in evidence at

the suppression hearing show no phone calls from phone numbers 699-7580 or 486-5573,

see St.‘s Ex. 48, and the testimony from the suppression hearing from Rafael Nieves and

Officer Machado casts doubt on the veracity of this statement and the Cranston Police

Department‘s belief in the reliability of it.

186

The statement in certain affidavits that Marco Nieves‘ injuries were consistent

with child abuse and not of a type sustained by a single accidental strike102 starts on a

somewhat different footing. In the face of its evidentiary burden, the Defendant has

supplied this Court with limited evidence as to the underlying veracity of the statements

about the attending physician‘s comments. Notwithstanding this fact, this Court is

troubled by the extent of potential false statements in the warrant affidavits and the

absence of this statement in the June 8, 2012 warrant affidavit. In addition, the first

warrant for the apartment contains a very different statement attributed to the attending

physician, referring to that physician in the male rather than female gender and stating

that the attending physician had ―located marks on Nieves‘ right shoulder and determined

that Nieves was suffering from brain trauma which he classified as suspicious.‖ St.‘s Ex.

22. For these reasons, this Court also determines that the Defendant has met his

preliminary showing as to the statements regarding Marco‘s medical condition.

In sum, the Court finds that Defendant has made the requisite preliminary

showing to warrant a Franks hearing as to the following statements in the warrant

affidavits: that Sgt. Kite heard an audible ring that induced his searching the LG cell

phone; that Sgt. Kite viewed a text message reading ―Wat if I got 2 take him 2 da hospital

wat will I say and dos marks on his neck‖ in attempting to disconnect from the phone;

that the police seized a Metro PCS cell phone from Defendant at Cranston Police

Department headquarters; that the LG cell phone belonging to Trisha Oliver was

voluntarily turned over to the Cranston Police Department; that Rafael Nieves received a

voicemail from Defendant on January 25, 2009 in which Defendant threatened to punch

102
This statement is included verbatim in every challenged warrant except for the June 8,
2012 warrant. (St.‘s Ex. 57)

187

Marco; and the statements attributed to the attending physician. As required, these

assertions have been made with specificity and supported with evidence that is beyond

conclusory. Accordingly, this Court finds that there is reliable evidence of record to

establish these statements, sworn to under oath by Sergeant Gates and Detective Cardone,

are deliberately false or were made with reckless disregard of the truth. As stated

previously, this Court will reserve decision as to whether Defendant is, ultimately,

entitled to a Franks hearing, pending further argument as to Defendant‘s standing to

contest these statements, and whether probable cause exists, independent of the

challenged statements, to support issuance of the warrants and admission of the evidence

collected pursuant to them.

IV

CONCLUSION

After a thorough review of the record and an exhaustive consideration of the

relevant jurisprudence on the issues before the Court, this Court makes the following

findings. First, with regard to standing, Defendant has a reasonable expectation of

privacy in his alleged text messages so as to give him standing to challenge the police

search that led to discovery of those text messages as violative of the Fourth Amendment.

The Court further finds that the third-party doctrine should not apply to diminish the

expectation of privacy in the contents of electronic communications. Moreover, people

have a reasonable expectation of privacy in the contents of their text messages with no

distinction between whether the messages were sent or received by them. This

expectation of privacy is also separate and discrete from the device used to send or

188

receive the text messages. Defendant also has standing to challenge the search of the

apartment where he was a frequent overnight guest and the seizures of evidence there.

Secondly, Sgt. Kite‘s actions to view the text messages on the LG cell phone did

not fall within the exigent circumstances, plain view, or consent exceptions to the warrant

requirement, and as such, were objectively unreasonable under the circumstances. In

addition, the searches and seizures of the police of all of the cell phones in evidence and

their contents were illegal as warrantless or in excess of the warrants obtained.

Furthermore, search of the LG cell phone by the police to photograph its text message

content was not justified by the scope of the warrant or by the exigent circumstances

exception to the warrant requirement. As such, all of these searches and seizures,

therefore, were unreasonable in violation of the Fourth Amendment.

Thirdly, almost all the evidence the Cranston Police Department obtained during

the course of its investigation into the death of Marco Nieves was ―tainted‖ by the illegal

search made by Sgt. Kite or the other illegal searches and seizures of cell phones and

their contents. Accordingly, this Court holds that this bountiful harvest of illegally

collected evidence and poisonous fruit is inadmissible at trial: (1) the LG cell phone (St.‘s

Ex. 15); (2) the Metro PCS phone (St.‘s Ex. 16); (3) the iPhone (St.‘s Ex. 17); (4) the T-

Mobile cell phone (St.‘s Ex. 18); (5) the apartment landline phone (St.‘s Ex. 19); (6) the

pictures of the contents of the LG cell phone taken at Trisha Oliver‘s apartment (St.‘s Ex.

14, Pictures 0037-0050); (7) the pictures of the contents of the LG cell phone taken at

Cranston Police Department headquarters (St.‘s Ex. 28); (8) the pictures of the contents

of the Metro PCS cell phone (St.‘s Ex. 31); (9) the pictures of the contents of the T-

Mobile cell phone (St.‘s Ex. 30); (10) the Cellebrite extraction report for the LG cell

189

phone (St.‘s Ex. 32); (11) the phone records and communications of Defendant provided

by T-Mobile (St.‘s Ex. 38); (12) the phone records and communications of Mario Palacio

provided by T-Mobile (St.‘s Ex. 41); (13) the phone records and communications of

Trisha Oliver provided by Verizon (St.‘s Ex. 44); (14) the phone records and

communications of Rafael Nieves provided by Sprint Nextel (St.‘s Ex. 48); (15) the

phone records and communications of Angie Patino provided by Sprint Nextel (St.‘s Ex.

51); (16) the landline phone records for Trisha Oliver‘s apartment provided by Cox

Communications (St.‘s Ex. 55); (17) the named portions of Defendant‘s interview (St.‘s

Ex. 66) and the corresponding portions of the videotaped recording of the interview (St.‘s

Ex. 68); and (18) Defendant‘s confession for the death of Marco Nieves (St.‘s Ex. 67). In

addition, this Court finds that Defendant‘s oral and written confessions were involuntary

in violation of his due process rights such that they must be suppressed.

Lastly, this Court finds that there is sufficient evidence in the record to find that

Defendant made a preliminary showing that the affidavits for the warrants do contain

certain false statements, as specifically identified by Defendant, that were deliberate or

made in reckless disregard of the truth. The Court reserves decision, however, as to

whether Defendant is entitled to a Franks hearing, subject to further argument as to

standing and probable cause.

Defendant‘s motion to suppress the videotape made at the apartment is denied.

Defendant‘s other motions to suppress text messages and other evidence are granted.

It is so Ordered. Counsel shall confer with the Court regarding further

proceedings in this case.

190

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