At 6:08am, on October 4, 2009, Trisha Oliver frantically called 911 from her apartment in Cranston, Rhode Island when her six-year-old son, Marco Nieves, stopped breathing. The Fire Department took Marco to Hasbro Children's Hospital, where he was found to be in full cardiac arrest. He died 11 hours later.
By 6:20am, Sgt. Michael Kite of the Cranston Police Department had arrived at the apartment, where he found Oliver, her boyfriend Michael Patino, and their 14-month-old daughter, Jazlyn Oliver. Kite observed a couple of stripped beds and linens on the floor, a trash can with vomit inside it, dark brown vomit in a toilet, and, crucially, a cell phone on the kitchen counter. Kite picked up the cell phone, and it was at that point—in the just-released opinion of a Rhode Island state court—that police proceeded to mangle a murder case and violate Patino's Fourth Amendment rights by viewing text messages without a warrant.
Kite viewed a text message on the phone, which was owned by Trisha Oliver, reading "Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg." The message was sent from Oliver to Patino, although the sending of the message apparently failed. There were other messages on the phone "with profane language and references to punching Marco—three times—the hardest of which was in the stomach," according to court records. Patino was arrested and charged with murder.
Kite claims he picked up the phone because it was "beeping," and that he thought it might help get in touch with the boy's birth father. But yesterday, Rhode Island Superior Court Associate Justice Judith Savage threw out nearly all of the evidence police collected from that point on, including the contents of cell phones, phone records and communications provided by Verizon, T-Mobile, and Sprint Nextel, landline phone records, and even Patino's "confession for the death of Marco Nieves." Savage said almost all the evidence obtained by police was "tainted by the illegal search made by Sgt. Kite or the other illegal searches and seizures of cell phones and their contents."
Patino is fighting the case both on Constitutional grounds and on the facts. He says the injuries to the boy were an accidental result of horsing around.
A privacy question that remains unsettled
Savage's decision in State of Rhode Island v. Michael Patino is a bold and interesting one, because the status of text messages in criminal investigations remains unsettled in the US. Savage wrote "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." Patino had a right to privacy for his text message conversations, whether police took them from his phone or Oliver's, and a right to privacy in the apartment because he frequently stayed there, making it one of his residences.
"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," Savage wrote. "In addition, this Court finds that the Defendant made a preliminary showing that numerous 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."
The cell phone searches were "illegal as warrantless or in excess of the warrants obtained," and "As such, all of these searches and seizures, therefore, were unreasonable in violation of the Fourth Amendment," the judge wrote.
Savage reasoned that cell phone contents are deserving of Fourth Amendment protection against unreasonable searches and seizures because people generally keep them on their person at all times. "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," she wrote, further stating that the court "does not find that the remote possibility 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."
But Savage's decision is unlikely to be the final word on this topic. Savage herself noted that the US Supreme Court has declined to provide guidance to lower courts. "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," she wrote. "Indeed, in City of Ontario [California] v. Quon [a case decided in 2010], the parties asked the high court to decide whether text messages should be afforded Fourth Amendment privacy protection. But the Supreme Court declined, choosing instead to decide the case on narrower grounds and allow this question to percolate in the lower courts."
An Associated Press story on the Patino case noted that "Georgia's Supreme Court this year ruled a similar search was legal, but the Ohio Supreme Court has ruled such searches improper." The Patino trial was scheduled to begin Monday, but Savage canceled jury selection, the AP reported. Patino's lawyer, David Cooper, said he'll request bail for Patino, who has been imprisoned for almost three years. Savage's decision was also reported by the Providence Journal, which posted the entire 190-page ruling online (PDF).
Most Rhode Island departments do seek warrants before gathering text messages as evidence, Cooper reportedly said. "Why Cranston opted not to do it is beyond me," Cooper said outside the courtroom.
Cranston police ended up obtaining more than a dozen warrants to seize evidence, including cell phones owned by both Oliver and Patino. But the affidavit used to obtain the first search warrant contained no information about text messages or cell phones, even though Sgt. Michael Gates claimed police seized phones from the apartment based on the authority of that first warrant. This was inaccurate both because the warrant did not grant that authority, and because police actually seized Patino's phone "off [his] person at the station."
Just how private cellular communications are depends very much on each court and police department, it seems. A ruling in the state of Washington in July found in favor of police officers who seized an iPhone from a suspected drug dealer and sent text messages on the device in order to locate and arrest one of his customers.
Separately, a trove of documents obtained by the ACLU in April seems to illustrate a "surveillance free-for-all" in which each police department is free to apply its own legal standard to surveillance conducted with assistance of cell phone companies.
The state of Rhode Island is expected to appeal Savage's decision.
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