After Amber R. Galemore pled guilty, “[i]n two separate
cases,” of “possession with intent to sell or deliver cocaine and to theft of
property” and was “sentenced to an effective sentence of eight years on probation”,
she appealed. State v. Galemore, 2013 WL 4679982 (Tennessee Court of Criminal Appeals 2013). She also reserved the right to appeal a "certified question of law" under Tennessee Rule of Criminal Procedure 37(b)(2). State
v. Galemore, supra.
This is the certified question of law Galemore reserved the right
to appeal:
`Whether the search warrant issued by a
General Sessions Judge for Montgomery County, Tennessee, which was based on
statements of an unknown person outside the defendant's residence and computer keystroke software results[,] provided a
sufficient nexus to make a probable cause determination.’
State v. Galemore,
supra.
The court begins the opinion by explaining that the case
arose from a burglary that
occurred on March 8, 2011. After an
investigation, police sought, obtained, and executed a search warrant on [Galemore’s]
home. After execution of the search warrant, a Montgomery County grand jury
indicted [her] in two separate cases. In case number 41101226, [Galemore] was
indicted for possession with intent to sell or deliver cocaine, hydrocodone,
and oxycodone and for possession of a firearm during the commission of a
dangerous felony. In case number 41200139, [she] was indicted for theft of
property valued over $1,000 and making a false report to authorities.
State v. Galemore,
supra.
Prior to pleading guilty, Galemore filed a motion to
suppress the evidence police
obtained as a result of the search of
her residence. She contended that there was no nexus between the computer
stolen during the burglary and [her] residence. Rather, the search warrant was
obtained on a mere `hunch’ that the computer would be in the residence, which
did not pass constitutional standards.
State v. Galemore,
supra.
Galemore’s motion, and her argument on appeal, both concern
the requirements of the 4th Amendment to the U.S. Constitution. As Wikipedia notes, the amendment states that
[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.[
[emphasis added]. If
you would like to read a discussion of what, precisely, constitutes “probable
cause,” check out Wikipedia’s entry on the issue.
The trial judge held a hearing on her motion to suppress, at
which “the parties based their arguments solely on the search warrant itself.” State v. Galemore, supra. The affidavit supporting the warrant, which was admitted as
an exhibit at trial, stated:
On March 8, 2011 Anita Pitts reported
that unknown person(s) forced entry into her residence, located at. . .
Clarksville, TN, and removed several of her personal items, to include Apple
I–Pod Touch, . . . X–Box Harddrive 250 GB; . . . Raider's silver pocket watch;
Del Inspiron 1525 Laptop; Kodak Easy Share Digital Camera. . . . These items
were taken without Anita Pitts['] consent.
On March 9, 2011[,] Anita Pitts contacted `Absolute
Computrace’ which is [a] `Lo Jack’ for computers. It's a program that was
downloaded to this computer when it was purchased. Pitts provided the case number
that she was given for her aggravated burglary report to Absolute Comput[r]ace.
Absolute Computrace at some point then began the track on her computer.
Absolute Computrace is able to track
the computer by capturing the keystrokes of the person typing on the computer.
The keystroke logger also captures usernames and passwords[,] which is stored
on Absolute Software servers.
On March 16, 2011[,] Detective Kevin
Rushing of the Clarksville Police Department received an email from Absolute
Computrace. The email contained the investigative report from Absolute Computrace[,]
and it showed that `Amber Galemore’ had logged onto `Facebook’ using the email
account of ambergalemore @yahoo.com. Absolute Computrace researched the email
address and name[,] then located the address of 1481 Buchanon Drive,
Clarksville, TN for Amber Galemore.
Absolute Computrace then attempted to
access Amber Galemore's Facebook page [,] which is public access, but was
unable to unless you were added as a `friend’ to her Facebook page. There was a
picture on the public access page [that] contained the name Amber Galemore next
to it.
The name Amber Galemore was then entered into the
`Criminal Justice Portal [,]’ which is a Tennessee driver's license data base
computer program. The search revealed Amber Rose Galemore, DOB: 04/03/1982,
social security number [XXX]-[XX]-[XXXX], driver's license number [XXXXXXXXX],
residing at 1481 Buchanon Drive, Clarksville, TN.
The search also provided
Amber Rose Galemore's drivers['] license picture[,] which was identified by
Detective Kevin Rushing as the same person in the picture on Amber Galemore's
Facebook page.
Detective Kevin Rushing then checked with
Clarksville Department of Electricity and was advised that Amber Harris is on
the account for 1481 Buchanon Drive, Clarksville, TN[,] and has had power at
that address since October 2010. Amber Harris had provided them a DOB:
04/03/1982, [the same social security number as identified with Amber
Galemore], [the same driver's license number as identified with Amber
Galemore], which leads your affiant to believe Amber Rose Galemore and Amber
Harris are the same person.
Your affiant has worked with Absolute Computrace
in the past and successfully recovered a computer that was stolen in an
aggravated burglary. With this information provided by Absolute Computrace[,]
your affiant believes that the computer will be recovered, along with other
stolen property[,] and the property will be returned to its owner.
On March 18, 2011[,] your affiant made
contact with Amber Galemore at 1481 Buchanon Drive and requested to look for
the computer in her residence. An unknown black male who was present at the
time of the request stated that the computer was inside but stated the affiant
could not go inside to retrieve it.
State v. Galemore,
supra.
When an officer applies for a search warrant, he/she submits
a form – an application for the warrant – to a magistrate who is authorized to
issue warrants. To establish probable
cause, the officer usually attaches an affidavit in which he/she explains why
there is probable cause for the magistrate to issue a warrant to search the
place specific in the application. You can, if you are interested, find examples
of both here.
Galemore argued, on appeal (and probably before the trial
judge) that the above affidavit
did not provide probable cause to
search her residence for several reasons. First, the tracking software enabled
by Absolute Computrace was not GPS oriented, and therefore, she could have been
anywhere, not necessarily her home, when she logged into the computer.
She
argued that she could have simply been typing on the computer of a `friend .’
Therefore, [Galemore] contended, there was nothing that pinpointed the actual
location of the computer so as to provide a nexus between the criminal activity
associated with this computer and the house at Buchanon drive.
State v. Galemore,
supra.
The prosecution, on the other hand, argued that there was a
“sufficient nexus” between
the address and the criminal activity.
The affidavit stated Amber Galemore used the computer, and police went to the
address of Amber Galemore, where she answered the door. A man there said that
the computer was in the home but police could not retrieve it. This supported
the theory that the computer would be found in the home.
State v. Galemore,
supra. On appeal, at least, Galemore
also argued that “the `unknown black male’ who was present at the time of the
detective's request for the computer had no basis of credibility” because there
was “no evidence he had direct knowledge that the computer was in the house.” State
v. Galemore, supra.
After the hearing on the motion to suppress, the trial judge
“took the matter under advisement” and then held a second hearing. State
v. Galemore, supra. At that hearing,
the judge said
`part of my ruling is that I ... do not
accept the statement made by the unknown black male as corroboration. What he
said may or may not have been true, and there's no way to know whether what he
said was true or not, or had any reliability at all, because it doesn't even
tell us who he is. It's like this person just said it and then left . . . who
was that guy? And so I don't think that what he said has anything to do with
whether the search warrant is constitutionally . . . sound.’
`[t]hat was the other thing that . . . I'm glad you said what you did, because there
was not a long passage of time here. The Computrace information that was sent
to Detective Rushing was done on March 16, and the officer went to her house on
the 18th. The closer in time you get[,] the stronger your argument is. If they
had said on the 16th we think it's a person named Amber Galemore, she lives on
Buchanan Place, then I think the argument is real -- a lot stronger. Whether
passage of two days weakens it or not, I guess is for an appellate court to
decide.’
`I'm denying the suppression motion.
I'm finding that there was sufficient information, properly gathered[,] to establish
a nexus between the [Illegible Text] the likely place of this stolen
State v. Galemore,
supra. (The quote ends after
“stolen.”)
The Court of Appeals began its analysis of the case by
explaining that it will uphold a
`trial court's findings of fact in a
suppression hearing unless the evidence preponderates otherwise.’ State
v. Hayes, 188 S.W.3d 505 (Tennessee Supreme Court 2006). . . .Our
review of a trial court's application of law to the facts is de novo, with no presumption of correctness. State v. Walton, 41 S.W.3d 75 (Tennessee Supreme Court 2001).
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When the trial court's findings of fact are
based entirely on evidence that does not involve issues of witness credibility,
however, appellate courts are as capable as trial courts of reviewing the
evidence and drawing conclusions, and the trial court's findings of fact are
subject to de novo review. State v. Binette, 33 S.W.3d 215
(Tennesee Supreme Court 2000).
State v. Galemore,
supra.
It also pointed out that when an officer relies on an
affidavit to establish probable cause for the issuance of a search warrant,
must appear in the affidavit [itself].
. . . State v. Moon, 841 S.W.2d 336 (Tennessee Court of Criminal Appeals 1992).
To sufficiently make a showing of probable cause, an affidavit `must set forth
facts from which a reasonable conclusion might be drawn that the evidence is in
the place to be searched.’ State v. Smith, 868 S.W.2d 561
(Tennessee Supreme Court 1993). . . .
An affidavit must show a nexus between the criminal
activity, the place to be searched, and the items to be seized in order to give
a magistrate probable cause to issue a warrant. State v. Reid, 91
S.W.3d 247 (Tennessee Supreme Court 2002). . . .
State v. Galemore,
supra.
The Court of Appeals then held that,
[a]fter a careful review of the search
warrant in this case, we conclude there was a substantial basis for finding
probable cause. We find unpersuasive [Galemore’s] argument that she `could
have’ logged onto her Facebook account from anywhere a laptop could travel, and
not necessarily at her home; therefore, there was no nexus to her home. [Galemore]
herself was in possession of the laptop, stolen property, when Comptrace
tracked her logging into her online accounts using the laptop.
While the laptop was portable, it was
reasonable to infer that [she] retained possession of it. The officers learned [Galemore’s]
address and went to that address. Someone at her home said a laptop was inside
but the officer could not retrieve it.
The officer left and, on this basis,
applied for a search warrant. Under these circumstances, it was reasonable for
the magistrate to infer that the laptop would be located in [Galemore’s] residence.
State v. Galemore,
supra.
The Court of Appeals therefore affirmed the trial judge’s
denial of Galemore’s motion to suppress.
State v. Galemore, supra.
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