After Eric J. Bone was convicted of second-degree murder and
sentenced “to life imprisonment at hard labor without the benefit of parole,
probation or suspension of sentence,” he appealed. State v. Bone, __ So. 3d __, 2012 WL 3968515 (Louisiana Court of
Appeals 2012). On appeal, he claimed the
trial judge erred in denying “his motion to suppress text messages obtained by
police through a subpoena duces tecum without a showing of probable cause.” State
v. Bone, supra.
Demetrius Jackson “was shot and killed outside of Cesar's
nightclub in the early morning hours of July 25, 2009.” State v. Bone, supra. Kyron,
Demetrius’ brother and “a member of the Calliope Gang, arrived at Cesar's . . .
with a group of friends between 12:30 and 1:00 a.m.” State v. Bone, supra. Members of the Gert Town gang, which included
Bone “and co-defendant Shawn Flott,” arrived later and “confronted the Calliope
gang.” State v. Bone, supra. According
to testimony at trial, the gang members began “`fussing’” with each other,
which led to a “verbal confrontation,” after which “the Gert Town and Calliope
members left the club.” State v. Bone,
supra.
Demetrius’ brother Kyron
testified at trial that while he, Demetrius and “another Calliope gang member
known as “Stink” began walking to their car, a vehicle driven by” Bone and “occupied by other Gert Town members pulled up
on the roadway and stopped”. State v.
Bone, supra. Kyron also said Flott “exited the vehicle and began shooting”
and Bone’s “ car circled the block to apparently see if anyone was shot before
fleeing the scene.” State v. Bone, supra. Demetrius was apparently shot in this
encounter. State v. Bone, supra.
Officer Jacob
Tapley, who “was working a detail at Cesar's nightclub on July 25,” was “outside
of the club, approximately 300 feet away, when he heard gunshots.” State v. Bone, supra. Tapley “did not
witness the shooting but did notice a silver four-door vehicle driving away
from the scene at a high rate of speed; he radioed the description of the
vehicle into headquarters and ran to the victim to render assistance.” State v.
Bone, supra.
Officer Alton Savage “was working a
detail a few blocks away from the shooting” when “he received the description
of an Infiniti vehicle involved in a shooting over his radio and, within
seconds, noticed a vehicle matching the given description traveling at a high
rate of speed.” State v. Bone, supra.
Savage “noted the vehicle's license plate number and testified that [it]
appeared to contain four occupants.” State v. Bone, supra When “the vehicle's
driver refused to stop”, a high speed chase began and “continued to the
interstate where Savage lost sight of the vehicle”. State
v. Bone, supra. A vehicle that matched the license plate and description
given after the shooting was recovered burned and abandoned that same day in
New Orleans. State v. Bone, supra.
Detective Ashton Gibbs “reported to the shooting scene at
approximately 3:00 a.m. to investigate the homicide but” the only lead he
obtained was “the vehicle's license plate number, which he learned was
registered to an Erica Bone.” State v. Bone, supra. Gibbs and another
officer went to Erica Bone's home. State
v. Bone, supra. She said “her mother and [Eric Bone], her brother, were the
primary drivers of the vehicle.” State v.
Bone, supra. Erica “provided her mother's address where [Eric] also lived.”
State v. Bone, supra. Gibbs went to Eric’s
mother's home, but Sandra Bone told him “she did not know where her son was.” State
v. Bone, supra. Bone later gave police a statement saying he was at Cesar’s
on July 25. State v. Bone, supra.
About a week after the shooting, Kyron Jackson “identified [Eric]
in a photographic lineup as the driver of the vehicle involved in the shooting.”
State v. Bone, supra. Gibbs testified
that Kyron “went back and forth as to the identity of the shooter but
ultimately identified . . . Flott as the shooter.” State v. Bone, supra. Officers later executed search warrants at
Flott’s and Eric’s homes, where they seized various items, including “a Samsung
cell phone with a contact number for `Shawn’”. State v. Bone, supra.
At trial, Gibbs said Erica gave him Eric’s cell phone
number and he gave it “to his supervisor to obtain a subpoena” for Eric’s cell
phone records.” State v. Bone, supra.
After they received the records from Sprint Nextel, the detectives learned the
phone number was registered to Eric’s mother and that “many text messages
received through the subpoena made reference to the shooting at Cesar's”. State
v. Bone, supra. Gibbs testified that the messages referred to Demetrius and
“to the vehicle being `long gone.’” State
v. Bone, supra. He used Eric’s cell phone records to identify “Sandra Bone,
Erica Bone, Shykeva Bone, Wilneka McCalebb and Jasmine Dixon” as “individuals
who communicated with [Eric] following the murder”. State v. Bone,
supra.
Joseph Trawiki, a records custodian for Sprint Nextel, testified that
the company received a subpoena for records relating to phone number
504–415–9231. State v. Bone, supra.
He also testified that Sprint Nextel responded by providing documentation “reflecting
the subscriber information, a call detail record log, and a printout of text
messages sent and received for the date requested, July 25, 2009.” State v. Bone, supra. The records
established the information outlined above.
State v. Bone, supra. Trawicki
also testified that Sprint Nextel also “produced printouts of text messages
sent and received on” the phones
used by Shykeva Bone, Sandra Bone, Erica Bone, Lucella McClebb, and Jasmine
Dixon. State v. Bone, supra.
Eric’s friend Wilkena McClebb testified that she was with him on July 25
and that “he dropped her off in his Infiniti at approximately 1:00 a.m.” State
v. Bone, supra. She said her friend, Tia, who was with them, “used her
phone to exchange text messages with Eric after the shooting.” State v. Bone, supra. The text messages
stated, “`[a]lright, luv, but don't kick dat to nobody what I told you, not
even Darrin,’” to which Tia responded, “`What?,’” and [Eric] stated, “`Da shit
at Ceaser [sic].’” State v. Bone, supra.
At trial, Eric testified that he and Shawn left Cesar’s
after the confrontations noted above, to avoid further problems. State
v. Bone, supra. He said as he drove away from the club he “heard
gunshots coming from the back seat of his car” but did not stop because Shawn’s
friend, Brandon, was
in the back seat. . . ., pointing a gun
to his head, instructing him to continue driving. . . . Upon returning to his
neighborhood after the police chase, Brandon asked [Eric] to drive to his
girlfriend's house. [Eric said] he gave Brandon the Infiniti's keys and walked
to his neighbor's house to get a ride to a hotel. [Eric] explained his theory
that Kyron Jackson, the victim's brother, fired the fatal shot.
State v. Bone, supra.
On appeal, Bone claimed the trial judge erred in denying his
motion to suppress the text messages. State v. Bone, supra. He argued that the
text messages were obtained in violation of the 4th Amendment --
which bans “unreasonable searches and seizures” -- because the officers used a
subpoena, rather than a search warrant, to obtain them from Sprint Nextel. State
v. Bone, supra.
As I’ve noted, if officers conduct a 4th
Amendment “search,” the search will be “unreasonable” and therefore
unconstitutional if it was not conducted pursuant to a valid warrant or an
exception to the warrant requirement. As
I’ve also noted, a “search” violates a reasonable expectation of privacy, which
means that (i) I believe the place/object searched as “private” and (ii)
society accepts my belief as objectively reasonable.
On appeal, Bone argued that he had a reasonable expectation
of privacy in the content of
text messages sent or received
by a phone on which he is the `exclusive user,’ citing U.S. v. Jones, 132 S. Ct. 945 (2012). . . . The state. . . . contends that it is unreasonable for [Bone]
to claim an expectation of privacy in the messages because (1) [he] is not the
subscriber or owner of the cell phone number at issue; (2) the privacy policies
issued by Sprint Nextel specifically warn customers that information may for
certain reasons be disclosed to authorities; and (3) [Bone] admits in the
messages he sent from his phone that he did not have a subjective expectation
of privacy in the messages. .
. .
State v. Bone, supra.
As noted above, Gibbs got Bone’s “phone call records” and
the contents of “outgoing and received text messages” by serving a subpoena
duces tecum on Sprint Nextel. And he got
Bone’s cell phone when he “subsequently” got and executed a search warrant for
Bone’s residence. He then (i) used
another subpoena duces tecum to get “the account information and phone call
detail records” of those with whom Bone communicated after the murder and (ii)
a search warrant to obtain their text messages for basically the same time
frame. State v. Bone, supra.
The Court of Appeals began its analysis of Bone’s 4th
Amendment argument by noting that “[w]hether a person has a protected privacy
interest in the contents of his text messages sent or received on his cell
phone and stored by a third-party . . . is a matter of first impression in Louisiana.”
State
v. Bone, supra. It then explained
that the U.S.
Supreme
Court has consistently held that a person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties because any
reasonable expectation of privacy is destroyed when the risk of disclosure is
assumed. Smith v. Maryland, 442 U.S. 735 (1979). However, the Supreme Court has also recognized a `content
exception’ which draws a distinction between the content of a communication and
the data log stored by a third party associated with such communication.
See Smith, supra. . . . The [federal] Circuit Courts [of Appeal] have further
discussed this content exception as applicable to new technologies such as
email, internet searches, and text messages. . . .
State v. Bone, supra.
The court then held that in light of this
established
jurisprudence, we find that [Bone] did not have a reasonable expectation of
privacy in the call detail record log associated with his phone number; we
therefore find that the call detail record log associated with [his] phone
number, identified as Exhibit 88B at trial, was properly obtained by the July
25, 2009, subpoena duces tecum at issue.
State v. Bone, supra.
The Court of Appeals then took up the issue as to whether
Bone had a 4th Amendment expectation of privacy in the content “of text messages sent or
received on a cell phone.” State v.
Bone, supra. It noted that some
lower courts have held that “a person has a reasonable expectation of privacy
with regard to cell phone and text message communications on or via privately
owned equipment.” State v. Clampitt, 364 S.W.3d 605 (Missouri
Court of Appeals 2102). Other courts
have reached the same conclusion. See, e.g., U.S. v. Zavala, 541 F.3d 562 (U.S. Court of Appeals
for the 5th Circuit 2008); U.S. v. Finley, 477 F.3d 250 (5th
Circuit 2007); and United States v. Quintana, 594 F.Supp.
2d 1291 (U.S. District Court for the Middle District of Florida 2009).
The prosecution argued that Bone, who was “neither the owner
nor subscriber of the cell phone at issue”, had “no standing to make a 4th
Amendment objection and therefore cannot assert a reasonable expectation of
privacy in the text messages.” State v. Bone, supra. The Court of Appeals noted, however, that the
U.S. Court of Appeals for the 5th Circuit held, in U.S. v. Finley, supra, that the
defendant in that case had a
reasonable expectation of privacy in
the text messages sent on his cell phone even though the phone was a business
phone issued by his uncle's business. Although the court ultimately held the
text messages admissible under an exception to the warrant requirement, the
court did find that the defendant had a reasonable expectation of privacy in
that phone and thus standing to assert a 4th Amendment objection. . . .
[T]he court
considered the fact that the defendant was permitted by his uncle to send
personal text messages and make personal calls through the business phone and
further stated that, `a property interest in the item seized is only one factor
in the analysis[.]’ Id.
State v. Bone, supra.
was not the owner or subscriber of the cell
phone at issue does not affect his ability to make a 4th Amendment challenge
where the evidence demonstrates that [he] had a possessory interest in the
phone as the exclusive user and was clearly permitted to use the phone for his
own personal use to the exclusion of others.
State v. Bone, supra.
state is permitted to obtain the
content of text messages sent on a defendant's cell phone; rather, the question
in this case is the standard the state must meet in order to obtain
such information. We find that here, where [Bone] was the exclusive user of the
cell phone and was permitted to use the phone for personal purposes, he had a
reasonable expectation of privacy in the text messages sent and received on the
cell phone and further find that the collection and review of the content of [his]s
text messages sent and received by that phone constituted a search which
required a showing of probable cause.
State v. Bone, supra.
The prosecution then argued that it should still be able to
use the contents of Bone’s text messages because it would inevitably have
discovered them:
The state [claims] it would have
inevitably discovered the contents of [the] text messages after an August 1,
2009, interview with [Bone’s] girlfriend, Jasmine Dixon, in which she discussed
the fact that she exchanged text messages with [him] in the hours following the
murder and revealed the content of said messages. The state argues that the
interview with Dixon would have presented probable cause to issue a search
warrant to obtain the content of [Bone’s] text messages.
State v. Bone, supra.
As I have noted in prior posts, the inevitable discovery
exception to the 4th Amendment’s warrant requirement lets police use
evidence that was obtained in violation of the 4th Amendment if they
can show they would have found it anyway, via other means. This court found the exception did not apply
in this case:
[At] the time of the interview with
Dixon, officers had already obtained the text messages exchanged between [Bone]
and Dixon pursuant to the subpoena duces tecum . . . and informed her of
their knowledge of said text messages prior to the interview. Therefore, it is
speculative to assume Dixon would have disclosed to officers any communication
with [Bone] following the murder, including any text messages sent or received,
had she not known the officers had already seen the content of those messages.
`Application of the inevitable discovery doctrine thus “involves
no speculative elements but focuses on demonstrated historical facts capable of
ready verification or impeachment’”. State
v. Lee, 976 So.2d 109 (Louisiana Supreme Court 2008).
Because we cannot determine without
speculation whether Dixon would have disclosed during the interview the
existence or content of the text messages exchanged with [Bone] following the
murder, we decline to apply the inevitable discovery doctrine in this case.
Accordingly, we find the trial court erred in denying [his] motion to suppress.
. . .
State v. Bone, supra.
The court did not, however, reverse Bone’s conviction
because it found the prosecution’s use of the text messages was “harmless
error.” State v. Bone, supra. As
Wikipedia notes, a “harmless” error “a ruling by
a trial judge that, although mistaken, does not meet the burden
for a losing party to reverse the original decision of the trier of fact
on appeal, or to warrant a new trial.” The Court of Appeals found that the
use of the text messages was harmless error because “the information obtained
by said text messages was simply corroborative of other competent evidence
introduced at trial.” State v. Bone,
supra. It therefore affirmed his
conviction and sentence. State v. Bone, supra.
If you are interested in more information about the facts in
this case – including the fact that Flot pled guilty to manslaughter and was
sentenced to 18 years in prison – check out the news story you can find here.
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