Wednesday, January 06, 2016

The Cell Phone, the Text Messages and Authentication

This post examines an opinion from the Court of Appeals of Georgia:  Glispie v. State, 2015 WL 7306244 (2015).  The court begins the opinion by explaining how, and why, the prosecution arose:In connection with a traffic stop, Jaylend Glispie was convicted of violating the Georgia Controlled Substances Act for possession with intent to distribute cocaine and 3, 4–methylenedioxymethcathinone (methylone) (2 counts), obstruction of a law enforcement officer, fleeing and attempting to elude, failure to stop at a stop sign, and driving an unsafe and improperly equipped vehicle.

He appeals from the denial of his motion for new trial, arguing that the trial court erred by denying his motion to exclude evidence of text messages purportedly extracted from a cell phone he possessed . . . and denying his motion to suppress drugs taken from his person during a search. . . .
Glispie v. State, supra.  In footnotes, the court cites Georgia Code §§ 16-13-30(b), 16-10-24(b), 40-6-395(a), 40-6-72(b), 40-6-1(a) and 40-8-7(a).  Glispie v. State, supra. 
The court then explained how the prosecution arose:
[O]n February 7, 2013, at about 2:00 a.m., Nathan Watts, a Rockdale County sheriff's deputy, was on patrol in a marked patrol cruiser on Flat Shoals Road when he observed a vehicle without a working headlight in the left turning lane of Salem Road. As Watts continued to travel on Flat Shoals Road, he crossed Salem Road and peered into the vehicle. Watts did not observe any of the driver's facial features, but he did observe that the driver, the sole occupant of the vehicle, was a black male wearing a `bright red[-]like sweater shirt.’ Watts turned his patrol cruiser around and followed the vehicle, which had turned onto Flat Shoals Road in the opposite direction in which Watts had been traveling.
Glispie v. State, supra.  The opinion goes on to describe what happened next:
Watts got behind the vehicle and activated his cruiser's emergency lights and siren to initiate a stop of the vehicle, which then turned onto a side street and stopped. Watts testified that he `aired [his] situation over the radio,’ reporting his location and giving `a short description of the vehicle,’ including the tag number and color and body type of the vehicle. Watts then exited his patrol cruiser. As Watts `started moving [toward the vehicle], the vehicle started moving too,’ and was driven away `in a hurry’ before Watts could make contact with the driver. Watts returned to his cruiser, pursued the vehicle, and announced his pursuit over the radio, giving a description of the vehicle and the direction in which it was being driven. When the vehicle proceeded through an intersection without stopping at the stop sign, Watts stopped his cruiser, deactivated its emergency lights, and in the interest of safety, ended his pursuit.
Glispie v. State, supra.  The opinion explains that Watts used his computer to obtain the
address associated with the driver's license of the registered owner of the vehicle. The address was in Rockdale County, not far from Watts's location, and Watts drove to the residence; approximately seven minutes passed from the time he stopped pursuing the vehicle to the time he arrived at the residence. Deputy Curtis Thompson, who had heard Watts's broadcast, arrived at the residence before Watts. Thompson exited his cruiser and started walking toward the home. The vehicle that Watts had pursued was parked in the driveway, and two black men were in front of the residence. One man wore a white t-shirt and flannel plaid-looking pajama pants. The other man, who wore jeans and a red and black shirt, ducked into some bushes as Thompson's cruiser approached.

Thompson testified [at trial] that as he walked past the vehicle, he could `smell the brakes still burning on the car from it having been in the chase, applying the brakes.’

Thompson ordered both men to approach him. The man wearing the white t-shirt complied, but the man wearing the red and black shirt, later identified as Glispie, did not. It appeared Glispie was `about to run,’ but Watts approached from behind Thompson at `a different angle in case something happened,’ and Thompson was able to handcuff Glispie. As Thompson `reached up to start to pat him down[,]  . . . [Glispie] tried to take off.’ Thompson testified that Glispie `stood on his left foot. Picked his right leg up and tried to kick my knee cap out.’ Thompson stepped to the side, and Glispie's `heel grazed from [Thompson's] knee cap all the way down the side of [his] leg to [Thompson's] ankle,’ leaving a red mark. Glispie then `went hopping across the yard with [Thompson] hanging on to the handcuffs.’ Thompson pulled the handcuffs, `[l]eg swept’ Glispie, knocking his feet out from underneath him, and sat down on top of Glispie. Watts positively identified the shirt that Glispie wore in the photograph as the shirt he had seen the driver of the pursued vehicle wearing.

Thompson searched Glispie's pockets. Located therein was one plastic bag containing fourteen rocks of suspected crack cocaine; another plastic bag contained five clear capsules, each filled with a white powder; a `couple of lighters’; two cell phones; some cash; and a razor or box cutter. The rocks had a total net weight of 2.07 grams and later tested positive for cocaine. The capsules had a total weight of less than one gram and later tested positive for 3, 4–methylenedioxymethcathinone, commonly known as methylone or `Molly.’
Glispie v. State, supra. 
The opinion then goes on to explain that, when Thompson testified at trial, he
opined that the amount of drugs recovered and the manner in which the drugs were packaged were consistent with an intent to sell or distribute, rather than for personal use. A third law enforcement officer, Sergeant Jason Welch, testified that text messages were extracted from one of the cell phones found on Glispie's person, and the texts indicated Glispie used the cell phone to sell drugs. Welch testified that part of one text message appearing on January 25, 2013, read, `Kristy, this Jaylend.’ A text message sent from the phone on February 1, 2013, read, `what is good, babe. This is the dude. I got your number. Everybody calls me Sane or Insane but my real name is Jaylend.’

Welch was asked whether there were conversations he had seen (in the text messages) which were `particularized toward the distribution or sale of either Mollies or cocaine,’ and he testified as follows.

A: Absolutely. Molly is mentioned numerous times within these pages. I just flip through at random.

Q: Can you give an example of one of those times?

A: Yes. For instance, you mentioned cocaine. Just flip through a random page. I see this right here. I got some concrete you might like. Hit me when you are ready. That's text number 2433 on January 26th, 2013, at 21:30. That text message was sent to this phone. Basically, someone trying to order up and another one on text message 2479. This was sent to the phone on January 27th, 2013, at 23:59 hours. It states you say a G. which is slang for a gram was 80. And then again from the same number, I need a G. of Molly. What's the move. Basically, I need a gram of Molly and what are you going to do for me.

Q: Are there any other ones that you found that kind of caught your attention primarily?

A: This individual time, they are talking about a dime. Another one from—now the cell phone data that we use to pull this information, we pull contacts too. Some of the numbers are just numbers, random customers ordering up to the phone but other people are listed as contacts. This was sent from an individual they have as Little Rod. It's 2599 sent to the phone and it plainly reads, you got Mollies? Asking if the individual has Mollies.
Glispie v. State, supra.  The court went on to note that that Welch
testified as to other text messages `about the drug trade.’ On cross-examination, Welch testified that based on his knowledge, training, and experience, `[anyone in possession of narcotics, especially in a manner of intent to sell and has a cell phone in his possession typically uses that cell phone to conduct trades.’ When asked whether he had any information prior to the issuance of the search warrant that the particular cell phone he sought to search was used in arranging the purchase or sale of drugs, Welch replied, `No. I was not on the scene.’
Glispie v. State, supra.  The opinion then explains that the trial ended “and Glispie was convicted on all counts”, which led to this appeal.  Glispie v. State, supra.
The Court of Appeals then took up Glispie’s arguments on appeal, beginning with his claim that “the trial court erred by denying his motion in limine to exclude evidence of text messages extracted from one of the cell phones found on him at the scene. Glispie v. State, supra.  More precisely, Glispie argued that “the search warrant application for the cell phone failed to provide probable cause sufficient to justify the issuance of the warrant.” Glispie v. State, supra. 
The Court of Appeals did not agree, explaining that
`[a] defendant aggrieved by an unlawful search and seizure may move the court . . . to suppress as evidence anything so obtained on the grounds that . . .  [t]he search and seizure with a warrant was illegal because . . . there was not probable cause for the issuance of the warrant. . . .’ `[T]he burden of proving the lawfulness of a search warrant is on the State[,] and that burden never shifts.’
Glispie v. State, supra.  The court went on to explain that the
magistrate's task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity’ and `basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty in reviewing the magistrate's decision in this case is to determine if the magistrate had a `substantial basis’ for concluding that probable cause existed to issue the search warrants. A magistrate's decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

Further, doubtful cases should be resolved in favor of upholding the determination that issuance of a warrant was proper, reflecting both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case.
Glispie v. State, supra (quoting Young v. State, 282 Ga. 735, 653 S.E.2d 725 (Georgia Supreme Court 2007)).
The Court of Appeals then began its analysis of the issuance of the warrant in this case:
[I]n the affidavit upon which the search warrant was based, Welch listed his experience and training with narcotic sales and stated that one of the cell phones found on Glispie had been `recovered as evidence related to a violation of Georgia's controlled substance act.’ Welch averred that he had reason to believe that the cell phone contained certain items, namely `[text messages, phone numbers in call history, digital phone book, digital pictures, digital video, voice[ ]mails, times of phone calls and text messages, which are being possessed in violation of [Georgia Code] § 16–13–30(b): `Possession of cocaine with intent to distribute.’ After detailing the events leading up to Glispie's arrest, including the attempted traffic stop, Glispie's flight, the officers' interactions with the owner of the vehicle, and Glispie's striking one of the officers during his attempt to escape, the affidavit listed the items found on Glispie's person after a pat-down of his pockets, including the drugs, two cell phones, and cash.

The affidavit `provided the issuing magistrate with sufficient information to make a practical, common sense decision that there was a fair probability that evidence of the crime would be found on the items to be searched.’ As noted by our Supreme Court, `the test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the factual and practical considerations of everyday life on which reasonable and prudent men act.’

Given the nature of the items in Glispie's possession at the time of his arrest, including a large number of suspected drugs, cash, a residue-laden razor, and two cell phones, the magistrate was authorized to conclude `based on . . . practical considerations of everyday life’ that there was a fair probability that the phone he also possessed would contain evidence of drug sales. Considering the specific evidence in this case and giving the magistrate the requisite substantial deference, we conclude that the trial court did not err by denying Glispie's motion in limine to exclude the text messages taken from the cell phone found on him at time of his arrest, notwithstanding that police had no specific knowledge of Glispie's use of the phone.
Glispie v. State, supra. 
The Court of Appeals then took up Glispie’s argument that “the trial court erred by denying his pretrial motion to suppress the drugs police recovered after they searched him.” Glispie v. State, supra.  The court does not explain the arguments Glispie made in attempting to persuade the trial judge that the drugs should be suppressed because they were discovered in a manner that violated the Fourth Amendment. Glispie v. State, supra.  Instead of focusing on those arguments, whatever they were, the Court of Appeals simply held that
when defense counsel stated at trial that he had no objection to the admission of the drugs, Glispie `waived and failed to preserve his right to contest the admission of the evidence on appeal on the grounds raised in the motion to suppress,’ or `any objection which might have been urged.’
Glispie v. State, supra (quoting Lightsey v. State, 316 Ga.App. 573, 730 S.E.2d 67 (Georgia Court of Appeals 2012).
The ultimate outcome of Glispie’s appeal was that the Court of Appeals affirmed his convictions for violating the Georgia Controlled Substance Act, obstruction of a law enforcement officer, fleeing and attempting to elude, and driving an unsafe or improperly equipped vehicle.  Glispie v. State, supra. 
It reversed his conviction for “failure to stop at a stop sign” because “there was no evidence of venue with regard to that charge.” Glispie v. State, supra.  Glispie had argued that the “evidence was insufficient to support his conviction for failing to stop at a stop sign because the State failed to prove venue.”  Glispie v. State, supra. 
The Court of Appeals agreed, explaining that
[o]ur Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. Proof of venue is a part of the State's case, and the State's failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.

`If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.”
Glispie v. State, supra (quoting Jones v. State, 272 Ga. 900, 901, 537 S.E.2d 80 (Georgia Supreme Court 2000)). 
The Court of Appeals went on to explain that
No witness testified that the intersection of Avalon Boulevard and Ellington Road, where Glispie allegedly drove past a stop sign without stopping, was located in Rockdale County. Accordingly, his conviction for failure to stop at a stop sign must be reversed.
Glispie v. State, supra. 
As Wikipedia explains, venue is an element of a criminal prosecution because Article III § 2 of the U.S. Constitution states that
Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

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