Murder, Dismemberment and the Panel-Log

After a jury convicted Marash Gojcaj of murder in violation of Connecticut General Statutes § 53a–54a(a) and the judge sentenced him “to fifty hears in prison,” he appealed his conviction. State v. Gojcaj, 2014 WL 2723932 (Appellate Court of Connecticut 2014).  He made several arguments on appeal, but this post only examines one:  that the “trial court improperly . . . denied his motion to suppress certain security system records obtained by a warrantless search”.  State v. Gojcaj, supra.

The Appellate Court began its opinion by explaining how the case arose:

On the evening of April 4, 2004, [Gojcaj] and the victim, Zef Vulevic, enjoyed dinner and wine at the Inn at Newtown. [Gojcaj] was the victim's nephew, and they co-owned Gusto Ristorante, an Italian restaurant located in Danbury, where [Vulevic] served as head chef. They also lived in the same apartment in Danbury. After dining, the pair returned to Gusto's and continued drinking alcoholic beverages. Business was slow that evening, prompting [Gojcaj] to close Gusto's early, at approximately 11:30 p.m.

After closing, Daniel Cruz, a former employee of Gusto's, and his wife, walked by the restaurant en route to their apartment across the street from Gusto's. [Gojcaj] and [Vulevic] chased Cruz and exchanged words with him before Cruz entered his building. [Gojcaj] kicked in a portion of the apartment building's front door. In response, Cruz called the police.

[P]olice arrived shortly after midnight and interviewed Cruz about the verbal altercation. While interviewing Cruz, the police observed [Gojcaj] and [Vulevic] outside Gusto's. The[y] . . . were questioned by the police. The officers observed that [Gojcaj] and [Vulevic] had been drinking, but only [Vulevic] appeared intoxicated. [Gojcaj] offered to make restitution to the apartment building's owner for the damage to the door, and the police declined to arrest [him]. Throughout the course of the interview, [Gojcaj] repeatedly interrupted the police officers -- he appeared agitated and aggressive. The officers instructed [Gojcaj] to take [Vulevic] off the street.

Twice, as the police attempted to leave the scene, [Vulevic] yelled at them, saying he wanted to fight the officers. The police instructed [Gojcaj] to take control of [Vulevic], and threatened to tase [Vulevic] if he did not get off the street. At the request of the police, [Gojcaj] physically restrained [Vulevic] and took him inside Gusto's. The police heard the sound of breaking glass and yelling from inside the restaurant, but left . . . at 12:32 in the morning on April 5, 2004.

On evening of April 4, 2004, and into the early morning hours of April 5, 2004, Kenya Braden, a college student was working on a psychology paper in an apartment overlooking Gusto's front entrance. Braden observed the altercation between [Gojcaj] and Cruz and the police response. As she worked . . ., she periodically looked down upon Gusto's. Shortly after 2 a.m., on two occasions, she observed [Vulevic] crawling out of Gusto's on his hands and knees before [Gojcaj] grabbed [his] shirt and dragged him back into the restaurant. According to Braden, `[Vulevic’ looked like he was trying to get away.’

At approximately 3:30 a.m., Braden observed [Gojcaj] park a white van in front of the restaurant. [He] exited the vehicle, removed boxes from the back of the van, and took them inside. . . . At 4 a.m., [she] went to sleep.

State v. Gojcaj, supra. If you are interested, you can read more about the facts and see photos of Gojcaj and Vulevic in the news story you can find here.  The story you can find here provides more information about the trial and this story provides even more detail.

Phone records would later show that Gojcaj made calls

from Gusto's landline to a close friend at 3:34:14 a.m. and 3:34:51 a.m. Alarm records indicated that Gusto's security system was armed at 3:59 a.m. Using his cell phone, he telephoned another close friend at 4:10:09 a.m. and 4:10:30 a.m., and [Vulevic’s] cell phone at 4:24:31 a.m. 

State v. Gojcaj, supra.

Gojcaj “subsequently traveled to Bedford, New York.” State v. Gojcaj, supra. A Danbury resident “who commuted through Bedford,” and apparently knew Gojcaj, saw “a white van that resembled his’ parked on . . . Baldwin Road.” State v. Gojcaj, supra. At 11:00 a.m. on April 5, Gojcaj unlocked the door to Gusto’s for an employee, who saw “a statue had been broken and there was broken glass on the floor.” State v. Gojcaj, supra.  Gojcaj said Vulevic was “intoxicated and emotional the previous evening, and he `flipped out’ and `just left.’”  State v. Gojcaj, supra.

On April 6, Gojcaj called Dennis Radovic,

a chef who had worked at Gusto's in February, 2004. [Gojcaj said Vulevic] was missing and he needed a chef. Radovic agreed to return to work at Gusto's, and upon entering the kitchen he noticed a bone saw was missing. . . . [T]he saw hung in the kitchen at Gusto's when he had worked there in February, 2004.

State v. Gojcaj, supra. 

On April 8, Gojcaj had the carpets at Gusto’s cleaned, after which he filed a missing persons report with the police regarding Vulevic.  State v. Gojcaj, supra. He said Vulevic “might have traveled to Florida to visit family.”  State v. Gojcaj, supra.  On April 9, police asked Gojcaj in for questioning; he said Vulevic left Gosto’s around 1:00 a.m. on April 5 and he had “not heard from him since.”  State v. Gojcaj, supra.  On April 16, Gojcaj had the carpets at Gusto’s replaced.  State v. Gojcaj, supra.  Before the installers arrived, he removed the old carpet and put “the remnants in a dumpster.” State v. Gojcaj, supra. Police retrieved the carpet and found one section was missing.  State v. Gojcaj, supra.

On April 24,

David Jussel, an Earth Day volunteer was cleaning up trash in Bedford, New York. Jussel stumbled upon a black trash bag enveloped in flies. The volunteer opened the bag, revealing a human foot covered in maggots. Jussel's mother called the police.

Forensic testing later determined that the foot, and the rest of the body parts that were subsequently recovered, belonged to [Vulevic]. An autopsy revealed two gunshots to the back of [his] head. The medical examiner determined that the gunshots to the head were the cause of death and that [Vulevic] was dismembered postmortem.

State v. Gojcaj, supra. 

Finally, in February of 2008, while he was incarcerated on an

unrelated matter at Westchester County Correctional Facility, [Gojcaj] asked Anthony D'Amato, an inmate working as a librarian, if there was a statute of limitations for murder. D'Amato later [sent a letter to the Connecticut prosecutors stating that [Gojcaj] `told me he killed his uncle . . . shot him dead then cut him in pieces and was intoxicated at the time.’

State v. Gojcaj, supra. 

Gojcaj was arrested on August 19, 2008, charged with murder and pled not guilty.  State v. Gojcaj, supra.  On November 5, 2010, he was convicted.  State v. Gojcaj, supra. 

That brings us to his appeal, and the issue he raised that concerned his alarm system.  Gojcaj argued on appeal that “his 4th amendment rights were violated when his security system service provider disclosed to the police a panel-log indicating when his alarm system was armed or disarmed because he had a reasonable expectation of privacy in this information.”   State v. Gojcaj, supra. 

The Appellate Court explains, in a footnote, that “[t]he security system recorded in its memory the date and time the alarm system was either armed or disarmed. The panel-log is merely a printout of this information.” State v. Gojcaj, supra.  And as I have noted in prior posts, and as Wikipedia explains, a “search” within the compass of the 4^th Amendment’s protection against “unreasonable” searches occurs when law enforcement officers violated someone’s reasonable expectation of privacy in a place or thing.

The Appellate Court began its analysis of Gojcaj’s argument by explaining that at trial,

the state elicited testimony from James Corbett, a partner of United Alarm Services. Corbett testified that United contracted with Gusto's to provide security alarm services and that on April 21, 2004, the police requested information pertaining to the burglar alarm at Gusto's. Corbett complied . . . and gave police a two page document. Corbett obtained this information by remotely connecting to Gusto's security system panel and downloading data stored in the panel's memory. The first page of the document contained general subscriber information; the second page, the panel-log, showed alarm panel activity from March 30, 2004, until April 21, 2004. The information on the second page was computer generated and indicated the date and time the system was armed or disarmed.

[Gojcaj] objected to the panel-log's admission into evidence and orally moved to suppress the panel-log, arguing that it was obtained by the police in violation of his 4^th Amendment rights. The issue was briefed, and the court held a suppression hearing at which Corbett testified.

State v. Gojcaj, supra. 

The trial judge then found that the alarm system was

controlled by a central control panel (panel) that was connected to United's operation center over a telephone wire. Although the panel was owned by Gusto's and located within the restaurant, the panel was operated by software that was designed and owned by United. The software controlled the basic operation of the alarm system and automatically logged information in the panel's memory. United provided a single passcode for Gusto's security system.

There was no evidence as to how many of Gusto's employees had access to the passcode and because the passcode was shared, there is no way to determine who armed or disarmed the system. Upon entry of the passcode, the panel records the date, time of day, and whether the system is being armed or disarmed. It is this data that formed the basis of the panel-log.

Although the panel did not transmit this information directly to United, United had the ability to access the panel's memory and operations remotely over the telephone connection. It was common for United to remotely connect into a panel to perform basic maintenance, including adjusting the panel's internal clock.

[Gojcaj] did not have access to the information stored in the panel; the only means of accessing the data was through United's remote connection software and downloading the information onto United's computers. There was no evidence that [he] ever knew that this information was being recorded by the security system.

State v. Gojcaj, supra. 

The trial judge therefore denied Gojcaj’s motion to suppress because he found Gojcaj

had failed to prove `a subjective expectation of privacy in the [panel-log] or an objective expectation of privacy . . . . that society is willing to recognize as reasonable, in light of the [monitoring agreement],’ and `the fact the information was willingly transferred to a third party . . . as part of the contract. . . .’ 

State v. Gojcaj, supra. 

The Appellate Court noted, before ruling on Gojcaj’s argument that the trial judge erred, that in reviewing the denial of a motion to suppress it (i) will uphold the trial judge’s factual findings “so long as they are not clearly erroneous”, but (ii) when a defendant challenges a judge’s “legal conclusions,” it reviews the accuracy of those conclusions independently.  State v. Gojcaj, supra.  The court then analyzed Gojcaj’s claim that the trial judge erred in rejecting his 4^th Amendment argument by noting that the "touchstone" of 4th Amendment

`analysis is whether a person has a constitutionally protected reasonable expectation of privacy.’ . . . California v. Ciraolo, 476 U.S. 207 (1986). `Absent such an expectation, the subsequent police action has no constitutional ramifications. . . . [T]o meet this rule . . . a two-part. . . test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . .The burden of proving the existence of a reasonable expectation of privacy rests on the defendant.’ . . .  State v. Boyd, 295 Conn. 707, 992 A.2d 1071 (Connecticut Supreme Court 2010).

State v. Gojcaj, supra. 

The Appellate Court found that Gojcal had 

not established that he had a reasonable expectation of privacy in the panel-log because he did not know that the information contained in the panel-log even existed, and there was no evidence that he intended to keep this information private.

State v. Gojcaj, supra.  It then explained why it reached this conclusion:

Although the panel-log information was not directly transmitted to United, it had the authority to remotely connect and download information from the security system without [Gojcaj’s] permission, pursuant to the monitoring agreement. This operational information is of the type that one reasonably would expect to be shared with a monitoring company, as it relates directly to the operation of the security system and the service United was under contract to provide. See U.S. v. Kennedy, 81 F.Supp.2d 1103 (U.S. Court for the District of Kansas 2000) (defendant's 4th Amendment rights were not violated when service provider turned over subscriber information, as there is no expectation of privacy in information provided to third parties).

As the trial court aptly noted, the sharing of information with a third party is a fundamental element of a security system.

State v. Gojcaj, supra. 

The Appellate Court also pointed out that it is

well established that `[a person] takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government . . . [and] that the 4th Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.’ (emphasis added.) U.S. v. Miller, 425 U.S. 435 (1976).

State v. Gojcaj, supra. 

The court therefore held that Gojcaj

agreed to reveal information to a third party and was warned that this information could be disclosed to the police. We acknowledge that technological advances and the erosion of privacy stemming from our society's increasing propensity to share information present new and challenging evidentiary issues. Given the facts of this case, however, the police acquisition of the panel-log did not violate the defendant's 4th Amendment rights.

State v. Gojcaj, supra.  For these and other reasons, the Appellate Court affirmed Gojcaj’s conviction and sentence.  State v. Gojcaj, supra. 

The Application for “the Facially Overbroad Search and Seizure Warrant”

This post examines an opinion issued by a U.S. Magistrate Judge in the U.S. District Court for the District of Columbia:  In the Matter of the Search of Information Associated with [redacted] @mac.com that is Stored at Premises Controlled by Apple, Inc., 2014 WL 945563 [hereafter, In re Matter, supra].  

The judge begins the opinion by noting that

[p]ending before the Court is an Application for a search and seizure warrant pursuant to Rule 41 of the Federa lRules of Criminal Procedure and 18 U.S. Code §§ 2703(a), (b) and (c) to disclose certain records and contents of electronic communications relating to an Apple e-mail address.  

Despite this Court's repeated prior warnings about the use of formulaic language and overbroad requests that -- if granted -- would violate the 4^th Amendment, this Court is once again asked by the government to issue a facially overbroad search and seizure warrant. . . .

In re Matter, supra.

Next, the Magistrate Judge explains that as part of an investigation into a possible

violation of 41 U.S. Code § 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S. Code § 371 (Conspiracy) involving a defense contractor, the government has filed an application for a search warrant (the `Application’) targeting a specific Apple e-mail address. . . .

Following a standard format used by the Department of Justice, the Application is divided into three main parts. The first part provides background and explains the basis for probable cause. The second part -- labeled Attachment A -- is titled `Place to Be Searched’ and specifies the location of Apple, Inc.; it also explains that the `warrant applies to information associated with the e-mail account [redacted]@mac.com which date from [December], 2013, until the present.’ Application at 14.

Finally, the third part -- labeled Attachment B -- operates in a bifurcated manner: under the heading `Particular Things to be Seized,’ the Application distinguishes between `Information to be Disclosed by Apple’ and `Information to be seized by the government.’ Application at 15–16.

In re Matter, supra.

The judge then quotes the information in Attachment B:

I. Information to be disclosed by Apple

To the extent that the information described in Attachment A is within the possession, custody, or control of Apple, Apple is required to disclose the following information to the government for each account or identifier listed in Attachment A: All records or other information stored by an individual using each account, including address books, contact and buddy lists, pictures, and files;

a. All records pertaining to communications between Apple and any person regarding the account, including contacts with support services and records of actions taken;

b. All records or other information regarding the identification of the accounts, to include full name, physical address, telephone numbers and other identifiers, records of session times and durations, the date on which each account was created, the length of service, the types of service utilized, the Internet Protocol (IP) address used to register each account, log-in IP addresses associated with session times and dates, account status, alternative email addresses provided during registration, methods of connecting, log files, and means and [sic] of payment (including any credit or bank account number);

c. All records or other information stored by an individual using each account, including address books, contact and buddy lists, pictures, and files; 

d. All records pertaining to communications between Apple and any person regarding the account, including contacts with support services and records of actions taken; and 

e. All records or other information pertaining to including [sic], without limitation, subscriber names, user names, screen names, or other identities, mailing addresses, residential addresses, business addresses, email addresses and other contact information, telephone numbers or other subscriber number [sic] or identity, billing records, credit card or bank account and information about the length of service and the types of service the subscriber or customer utilized, and any other identifying information, whether such records or other evidence are in electronic or other form.

II. Information to be seized by the government

All information described above in Section I that constitutes contraband, evidence, fruits and instrumentalities of violations of 41 U.S. Code § 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S. Code § 371 (Conspiracy), between [December], 2013, and the present, including the following:

a. Records, emails, and other information referring or relating to a government investigation involving any or all of the following: [Specific names of individuals and corporations are redacted].

In re Matter, supra.

Next, the Magistrate Judge pointed out the errors in the government’s Application:

It is evident from the sealed affidavit that the government is really after e-mails from December to the present. Nothing in Attachment B, however, explicitly requests that Apple give the government any e-mails. Strictly read, it instead asks for extensive non-content records about the account as well as `address books, contact and buddy lists, pictures, and files.’ Application at 15.

However, under the subheading of `Information to be seized by the government,’ Attachment B states that the government will `seize’ relevant `[r]ecords, e-mails,and other information. . . .’ Id. at 16 (emphasis added). The Court believes this confusion was caused by poor drafting.  Compare Application at 15–16 (repeating sections beginning `All records or other information stored. . .’ and `All records pertaining to communications between Apple . . .’ ) with Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigationsa t 261.

After all, the affidavit discusses specific e-mail conversations as the reason for seeking the warrant; it would be illogical for the government to then not seek these e-mails.

While it is evident from closely reading the Application and its attachments what the government is really after, it is equally evident that the government is using language that has the potential to confuse the provider -- in this case Apple -- which must determine what information must be given to the government. . . .

This Court should not be placed in the position of compelling Apple to divine what the government actually seeks. Until this Application is clarified, it will be denied.

In re Matter, supra (emphasis in the original).

The Magistrate Judge then explained that he is “increasingly concerned” about the

government's applications for search warrants for electronic data. In essence, its applications ask for the entire universe of information tied to a particular account, even if it has established probable cause only for certain information.

To ameliorate this problem and bring the warrants in line with the 4th Amendment, this Court has issued `Secondary Orders’ to accompany search and seizure warrants for electronic records [which] explicitly require that contents and records of electronic communications that are not relevant to an investigation must be returned or destroyed and cannot be kept by the government. . . .

Without such an order, this Court is concerned that the government will see no obstacle to simply keeping all of the data that it collects, regardless of its relevance to the specific investigation for which it is sought.

In re Matter, supra.

Next, he explained that he was “also troubled” that the government seeks a

broad search and seizure warrant for e-mails and all other content related to this e-mail account. The Supreme Court has recognized two constitutional protections served by the warrant requirement of the 4th Amendment. `First, the magistrate's scrutiny is intended to eliminate . . . searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity.’ Coolidge v. New Hampshire, 403 U.S. 443 (1971).

Thus, it is this Court's duty to reject any applications for search warrants where the standard of probable cause has not been met.

Second, . . . `[T]hose searches deemed necessary should be as limited as possible. Here, the specific evil is the “general warrant” abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings.’ Coolidge v. New Hampshire, supra.

To follow the dictates of the 4th Amendment and to avoid issuing a general warrant, a court must be careful to ensure that probable cause exists to seize each item specified in the warrant application.

In re Matter, supra.

The judge then pointed out that the government had

adequately described the `items to be seized’ -- but it has done so in the wrong part of the warrant and in a manner that will cause an unconstitutional seizure. By abusing the two-step procedure under Rule 41, the government is asking Apple to disclose the entirety of three months' worth of e-mails and other e-mail account information. . . .

Yet, on the very next page, it explains that it will only `seize’ specific items related to its criminal investigation; it goes so far as to name specific individuals and companies that, if mentioned in an e-mail, would make that e-mail eligible to be seized. . . .

Thus, the government has shown it can `describe the items to be seized with [ ] much specificity’; it has simply chosen not to by pretending that it is not actually `seizing’ the information when Apple discloses it. 

In re Matter, supra (emphasis in the original).

The Magistrate Judge then explained what would be an acceptable alternative approach:

[O]ther district courts have held that the `4^th Amendment does not require the government to delegate a prescreening function to the internet service provider or to ascertain which e-mails are relevant before copies are obtained from the . . . provider for subsequent searching.’ U.S. v. Taylor, 764 F.Supp.2d 230  (U.S. District Court for the District of Maine 2011).  

But, in light of the government's repeated submission of overly broad warrants that violate the 4th Amendment, this Court can see no reasonable alternative other than to require the provider of an electronic communications service to perform the searches. Under the government's demand that it be given everything, the government leaves the Court with only two options: deny the warrants -- thus depriving the government of needed information -- or issue warrants that are repugnant to the 4^th 4th Amendment. Neither is viable.

Thus, having an electronic communication service provider perform a search, using a methodology based on search terms such as date stamps, specific words, names of recipients, or other methodology suggested by the government and approved by the Court seems to be the only way to enforce the particularity requirement commanded by the 4th Amendment.

In re Matter, supra.

The Magistrate Judge also noted, briefly, that he was “particularly troubled” that the

Application does not specify what will occur with e-mails and other information that is, even by the government's standards, not relevant. Will that information be returned, destroyed, or kept indefinitely? The `Secondary Orders’ . . . issued by this Court . . . have required the government to destroy all contents and records that are not within the scope of the investigation as outlined in the search warrant. . . .

While such a clause in a search warrant application is certainly necessary for its issuance by this Court, the government should not believe it is sufficient. In this case, its absence is grounds enough . . . to deny the Application.

In re Matter, supra.

In the last paragraph of the opinion, the Magistrate Judge says he “modified approximately “twenty search and seizure warrants for electronic information during September and December 2013” but will no longer do so.  In re Matter, supra.

Instead, any warrants that do not comport with the requirements of the 4th Amendment will -- like the present Application -- be denied with an explanation of why they have been denied so that the government may have an opportunity to correct its defects.

To be clear: the government must stop blindly relying on the language provided by the Department of Justice's Searching and Seizing Computers and Obtaining Electronic Evidence in CriminalInvestigations manual. By doing so, it is only submitting unconstitutional warrant applications.

In re Matter, supra.

The Six-Year-Old, Murder and Text Messages Stored in Someone Else's Phone

After Michael Patino was “indicted for the first-degree murder of Marco Nieves, the six-year-old son of his girlfriend, Trisha Oliver”, he filed a number of “pretrial motions to suppress the bulk of the evidence that the state intended to use against him.”  State v. Patino, 2014 WL 2802836 (Supreme Court of Rhode Island 2014). 

The murder charge was brought under Rhode Island General Laws § 11-23-1.  State v. Patino, supra. The trial judge issued “a comprehensive and thoughtful one-hundred-ninety page written decision” in which she “granted all but one” of Patino’s motions to suppress.  State v. Patino, supra.

The prosecution appealed the judge’s granting the motions, which raised several issues.  State v. Patino, supra.  This post only focuses on one:  whether Patino had an objectively reasonable 4th Amendment expectation of privacy in “sent text messages”.  State v. Patino, supra.  As I have noted in prior posts, and repeat below, for police conduct to constitute a “search” with the protections of the 4^th Amendment, the police conduct must violate a “reasonable expectation of privacy.”  Wikipedia has more on that, if you are interested

The Supreme Court begins its opinion by explaining how the prosecution arose:

On October 4, 2009, at approximately 6:08 a.m., Trisha Oliver placed a 9-1-1 call from her Cranston apartment indicating her six-year-old son was . . . not breathing. At approximately 6:15 a.m., Cranston Rescue and Fire Department responded . . . and . . . transported Marco to Hasbro Children's Hospital in Providence. The rescue personnel arrived at the hospital with Marco shortly after 6:30 a.m.

Meanwhile, members of the Cranston Police Department arrived at the apartment to begin an investigation. Sergeant Matthew Kite arrived . . . at approximately 6:20 a.m. and spoke briefly with Officer Aldrich, who was leaving . . . to escort the ambulance to the hospital. Kite then met outside the apartment with Officers Carroll and Lee, as well as Trisha Oliver. Oliver escorted Kite into her apartment so she could show him Marco's bedroom and other areas of the apartment that he deemed relevant. . . .  

Once in the apartment, Kite observed Oliver's boyfriend, Michael Patino, sitting on the couch with the couple's fourteen-month-old daughter, Jazlyn. Oliver [showed] Kite around the apartment to survey the remnants of Marco's illness. They passed through the dining room and living room to Marco's bedroom, where Kite observed a stripped bed and linens on the floor. They continued on to the master bedroom and viewed another stripped bed, as well as a trash can Marco had used as a vomit receptacle. Finally, she showed him the bathroom, where Kite observed dark brown vomit in the toilet, which he described as having the appearance of `coffee ground[s].’ They then returned to the entrance of the apartment; Carroll transported Oliver to the hospital shortly thereafter.

Kite . . . requested . . . Lee start a crime scene roster to document who entered and exited the apartment. After Oliver had been transported to the hospital, Kite remained at the apartment to look for potentially hazardous materials that could have caused Marco's illness. . . . [H]e observed four different cellular telephones: . . . . an LG Verizon cell phone on the kitchen counter; a Metro PCS Kyocera cell phone on the dining room table; a T–Mobile Sidekick cell phone on the headrest of the couch behind defendant; and an iPhone on the armrest of the couch. 

State v. Patino, supra. 

The opinion goes on to explain that Kite “spoke with” Patino, who agreed to

accompany Kite to . . . police headquarters to make a statement about what had transpired. . .Kite . . . asked [Patino] what happened the previous night, but [Patino] indicated he had not been there . . .and did not know. Kite . . . [asked Patino] the time at which Oliver had called him to come over, to which [Patino said] she had not called him because he does not own a cell phone, and he arrived at the apartment early that morning, by chance. . . . [S]hortly after this interaction with [Patino], Kite noticed that the LG cell phone on the kitchen counter `indicated audibly and by light that it was receiving a message. . . . Kite went to the phone and picked it up, checking to see if it was Marco's father or someone else calling regarding Marco's condition. Kite . . . picked up the phone and viewed an alert on the front screen of the phone indicating there was one new message, at which point he opened the phone to view the interior screen. [It] indicated there was a new message, but the message could not be received due to a lack of credit on the phone account.
 In an effort to acknowledge receipt of the message and thereby avoid repeat notifications, Kite . . . `manipulated the button’ on the phone, which led to a mailbox listing incoming and outgoing text messages. . . . [U]pon seeing the word `hospital’ in a text message, he clicked the phone to view the following message in the `outbox’ folder:  `wat if I got2 take him 2 da [hospital] wat will I say and dos marks on his neck omg.’ The message was addressed to `DAMASTER’ at phone number (401) xxx-xx80; a subsequent investigation revealed that `DAMASTER,’ the intended recipient of the text message was, in fact, [Patino]. 

State v. Patino, supra. At “approximately 7:25 a.m.”, Officer Machado took Patino to Police Headquarters and Patino was taken to a conference room. State v. Patino, supra.  He was told to empty his pockets onto a table and one of the things Patino put on the table “was the T-Mobile phone, which was confiscated immediately by Machado.”  State v. Patino, supra.  Meanwhile, Kite, at the apartment, noticed the T-Mobile phone was missing so he called headquarters and suggested it contained information that needed to be preserved and so should be taken from Patino.  State v. Patino, supra. 

A little later, two detectives – Slaughter and Cardone – interrogated Patino.  State v. Patino, supra.  The detectives had heard about the text messages; Cardone told Patino he would likely be charged with Marco’s murder and began to quote texts in which Patino “allegedly admitted being physical with Marco.”  State v. Patino, supra.  (The opinion notes Marco had not died at this point.  State v. Patino, supra.)  It also quotes this series of texts exchanged between “between Oliver's LG phone and [Patino’s] T–Mobile phone” on October 3, 2009.  State v. Patino, supra. 

Sent: of course he is gonna be all hurt and cryin cuz u fuckin beat the crap out of him im not wit that shit.

Read: I PUNCH DAT LIL BITCH 3 TIMES AND DAT WAS IT. DA HARDEST 1 WAS ON HIS STOMACH CUZ HE MOVED. BUT LET HIM BE A MAN AND NOT A LIL BITCH LIKE U.

Read: WAT KIND OF DISCIPLINE OR ANYTHIN U GONNA KNO.

7F'Sent: wateva u always think u didnt hit hard but u do u hurt me could imagine wat u did 2 him 4 ur info he isn't complaining just him throwin up and in pain is enough

Sent: idk wat u did but u hurt is stomach real bad

“ * * *

Sent: wtf did u do 2 my son mike

Read: I TOLD U. I WENT 2 PUNCH HIM ON HIS BACK AGAIN AND HE MOVED AND I HIT HIM ON HIS STOMACH.

“ * * *

Sent: mike he is in madd pain u had 2 hit him real hard mike wtf

Read: I HIT HIM DA SAME WAY EVERYWHERE BUT ITS DAT HE MOVED AND I HIT HIM BAD.

State v. Patino, supra.  In his interrogation, Patino admitted he “hit [Marco] in the ribs” and later made a “statement about Marco taking `a body shot.’” State v. Patino, supra. 

As I noted above, the prosecution appealed the trial judge’s granting Patino’s motion to suppress.  As I also noted, he raised, and the trial judge ruled on, several theories as to why various evidence should be suppressed but this post only focuses on one of those theories:  Patino’s argument that the officers searching for and seizing evidence from the cell phones violated his 4^th Amendment right to be free from an “unreasonable” search.  State v. Patino, supra.  The Supreme Court began its analysis of his argument by noting that “[t]he central question confronting us . . .  is relatively narrow, viz., whether a person has a reasonable expectation of privacy in his or her text messages stored in a cell phone belonging to, or possessed by, another person.”  State v. Patino, supra.  It also noted this was an issue offirst impression in Rhode Island, so it would consider decisions from courts elsewhere in reaching a conclusion. State v. Patino, supra.  

The court began it analysis of the issue by noting that “[a]lthough courts have ultimately reached different conclusions on whether there exists a reasonable expectation of privacy in text messages, the determinations have most often turned on whether the defendant owned or was the primary user of the cell phone.”  State v. Patino, supra.  It also noted that in deciding whether someone has an expectation of privacy in

his text messages, the most important factor, in our opinion, is from whose phone the messages are accessed. Underlying this consideration is the element of control; . . . when the recipient receives the message, the sender relinquishes control over what becomes of that message on the recipient's phone. The idea of control has been central to our prior determinations of whether an individual has an objectively reasonable expectation of privacy so as to . . . raise a 4th Amendment challenge. . . .

The U.S. Supreme Court has likewise considered control as a factor when determining whether a defendant has a reasonable expectation of privacy in a given place or item. See, e.g., Rakas v. Illinois, 439 U.S. 128 (1978). . . . Additionally, the SupremeCourt has determined that, `when an individual reveals private information to another,’ a reasonable expectation of privacy no longer exists because `he assumes the risk his confidant will reveal that information to the authorities.’ U.S. v. Jacobsen, 466 U.S. 109 (1984). . . .

Implicit in the risk inherent in the disclosure of information to another party is the relinquishment of control, i.e., the sender can no longer control what the recipient does with the message. . . . Because the recipient now shares full control of whether to share or disseminate the sender's message, the sender, to be sure, no longer enjoys a reasonable expectation of privacy in the digital copy of the message contained on the recipient's device.

State v. Patino, supra. 

The Supreme Court then applied the principles noted above to this case, explaining that

[i]t is clear to us that the cell phone of primary concern in this case, the LG phone, was used exclusively by Trisha Oliver. [Patino] exhibited no dominion or control, nor did he attempt to exclude others from accessing the phone. This is evinced by the facts that he made no motion towards the phone in response to the message alert, did not attempt to prevent Kite from accessing the contents of the phone, and did not bring the phone with him when he accompanied Machado to the police station.

In fact, [Patino’s] only connection to the LG phone is the fact that a digital copy of the messages he sent from his T–Mobile phone existed on the LG phone. Having already sent the incriminating text messages, which were indeed delivered to Oliver's LG phone, [Patino] no longer had any control over what became of the messages contained in that phone. [Patino’s] lack of control over who could view or access the text messages is underscored by the fact that Oliver signed a consent form allowing the Cranston police officers to search her phone, albeit after they had already viewed the incriminating messages.

Therefore, in light of the considerations and rationale enunciated above, it is our . . . opinion that [Patino] did not have an objectively reasonable expectation of privacy in any text messages contained in Trisha Oliver's LG phone, whether sent by defendant, sent to [Patino], or otherwise. . . .

State v. Patino, supra. 

The Supreme Court therefore held that Patino’s reasonable expectation of privacy

in the text messages contained in Oliver's phone, whether sent from or received by that phone, does not extend to the messages contained on another's phone, despite the fact that there exists an identical copy of the messages on the challenger's phone. As iterated above, this is chiefly due to control; a cell phone user retains control over what becomes of the content on his or her phone, but entirely loses control of the messages contained on the phone of another. 

When applied to the case at hand, . . . we conclude that [Patino] had no reasonable expectation of privacy . . . [in] Oliver's LG phone, its contents, and all derivatives therefrom.

State v. Patino, supra. 

The Supreme Court therefore vacated “the September 12, 2012 order of the Superior Court insofar as it excludes from evidence `the LG cell phone’ [and] . . . `the pictures of the contents of the LG cell phone taken at Cranston Police Department headquarters’”. State v. Patino, supra.  As I noted earlier, it also vacated most of the trial judge’s rulings on the other motions and remanded the case to that judge for further proceedings. State v. Patino, supra.            You can, if you are interested, read more about this, and other aspects, of the case in the news stories you can find here and here.  And if you are really interested, you can find the trial judge’s 190 page opinion here.