Murder Case Upended After Police Read Phone Texts Without A Warrant

from the get-a-warrant-maybe dept

Thu, Sep 6th 2012 3:15pm — Mike Masnick

There have been a number of cases on the legality of police going through your mobile phone, and the courts are basically all over the place on rulings, with very little guidance from the Supreme Court. You can find cases where it's legal and some where it's not. The Supreme Court had a chance to clarify and punted (as it often does these days), choosing instead to tap dance around the 4th Amendment issue and deal with the case on other grounds.

Now we've got yet another ruling saying that looking at texts without a warrant violates the 4th Amendment. The case involved a six year old boy who stopped breathing and later died. His mother had called the police to report the not breathing bit... and while the police were in the house, they picked up the mother's cell phone and noticed a written (but unsent) text to her boyfriend which suggested foul play:

Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg

Other texts mentioned punching the kid. Not surprisingly, police used this to start a murder investigation, leading to the arrest of the kid's mother's boyfriend. Except... the court has now rejected much of the evidence because it was obtained in a manner that violated the 4th Amendment. Even though such info is clearly useful for the case, this (Rhode Island state) court didn't fall for the claim that "if it helps police, there aren't any 4th amendment concerns."

... the Defendant has a reasonable expectation of privacy in his text messages and in the apartment where the subject cell phones were searched and seized so as to grant him standing, under the Fourth Amendment, to challenge the legality of the searches and seizures of those phones and their contents by the police. 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.

The ruling will almost certainly be appealed, and it's reasonable to want to make use of any evidence that points to a potential murder suspect (especially one who killed a six year old boy!). But, at the same time, we believe in the 4th Amendment for a reason -- and we expect law enforcement to live by that in collecting evidence, or we cross over into a police state (and yes, some people think we're already there). It's the cases like these that are often the toughest, because it's so tempting to come up with some sort of excuse to allow the evidence in order to lock up someone "bad." But at the same time, you want courts to recognize the importance of the 4th Amendment for all of those other cases where people get unfairly searched without a warrant.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, privacy, search, texts, warrants

37 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 6 Sep 2012 @ 3:26pm

The sad part about this story is because of the lack of the ability of the police to follow procedures they are letting child killer/s walk free.
[ link to this | view in chronology ]
- Vog (profile), 6 Sep 2012 @ 3:39pm
  
  Re:
  I agree - this is what people should really be mad at, if anything. A killer might go free not because we enjoy too much sheltering from police, but because the police botched their duty to take the simple steps necessary to remain within the law.
  
  Ignoring the Fourth Amendment is not the answer.
  [ link to this | view in chronology ]
- Jeremy, 6 Sep 2012 @ 3:55pm
  
  There's no guarantee she didn't plant that text...
  to make the cops suspicious of a boyfriend she wanted gone. It was an UNSENT text. The circumstances aren't clear because the cops likely relied on random text on a phone as primary evidence and followed instinct alone. That's the cops fault. The 4th amendment might actually be protecting an innocent in this case.
  
  That said, dear lord I'm glad I have no friends who text me in pseudo-ebonic-language like that... eww, at least get some T9 on your phone lady.
  [ link to this | view in chronology ]
- btr1701 (profile), 6 Sep 2012 @ 4:54pm
  
  Re:
  > The sad part about this story is because of
  > the lack of the ability of the police to
  > follow procedures they are letting child
  > killer/s walk free.
  
  No, the sad part about this story is that the courts have given so many conflicting rulings on these issues that there are no clear procedures to follow.
  [ link to this | view in chronology ]
  - WysiWyg (profile), 7 Sep 2012 @ 11:12pm
    
    Re: Re:
    Just because the courts have been sketchy on whether or not you need a warrant doesn't mean that the procedure for getting one has changed. It's stupid, especially in a case like this, to not just go that extra mile to be on the safe side.
    [ link to this | view in chronology ]
Indolent (profile), 6 Sep 2012 @ 4:00pm

confused
I'm no expert, so maybe someone can enlighten me on a couple things.

1. How does it violate the boyfriend's 4th amendment rights if they searched his girlfriend's phone?

2. She called police into her home. While they were there, they found this evidence. What part about that makes it an illegal search?
[ link to this | view in chronology ]
- Keroberos (profile), 6 Sep 2012 @ 4:20pm
  
  Re: confused
  1: It violates the 4th amendment because they did not have a warrant to search the phone (not certain it was needed in this case due to the fact that the evidence on the phone could have been easily destroyed and the probable cause of there being a questionable injury on the premises).
  
  2: That would be the case if the evidence was in plain sight, the argument in this case would be that the data on the phone was not in plain sight and is separate from the phone (that was).
  [ link to this | view in chronology ]
  - btr1701 (profile), 6 Sep 2012 @ 5:00pm
    
    Re: Re: confused
    > It violates the 4th amendment because they
    > did not have a warrant to search the phone
    
    If it wasn't the boyfriend's phone, it's not a violation of *his* rights to search it. If the phone belonged to the girlfriend, it might havebeen a violation of *her* rights, but she's not the one on trial.
    
    That doesn't seem to be the case here. What I got from the story is that it was his phone, but he had left it in her apartment. The court is saying that even though the police had her consent to be in and look through the apartment, the phone wasn't hers, so she couldn't legally give consent to search it, therefore the search was invalid.
    
    Personally, I think that places an unreasonable burden on the cops. If I'm in someone's house and there's a cell phone lying on the table, it's reasonable to assume it belongs to the people who belong to the house. I shouldn't have to conduct a full background check on the phone to verify whose name is on the account, etc., before I can search it with permission of the homeowner.
    [ link to this | view in chronology ]
    - FormerAC (profile), 6 Sep 2012 @ 7:25pm
      
      Re: Re: Re: confused
      Lets say I come over your house, and I bring my laptop. While I am sitting at the table using my laptop, the police enter into your house.
      
      Are they allowed to search my laptop?
      What about your home computer?
      
      A cell phone is a computer. At least mine is. I can edit a spreadsheet, view PDF files, send email with attachments, play games, watch movies etc. Why are they allowed to search all your text messages and call history without a warrant?
      
      They shouldn't be able to. Technology has moved light years faster than the law. Twenty years ago, the police would need a warrant to compel the phone company to give them a list of calls made on the phone. Today they can just pick up your phone and search your history without asking?
      [ link to this | view in chronology ]
      - Jeremy Lyman (profile), 7 Sep 2012 @ 4:21am
        
        Re: Re: Re: Re: confused
        I believe the ruling stated that the apartment was one of his residences because he spent a significant amount of time there. The law specifies provides protection specifically to belongings within your residence, so it would have probably been more protected than your laptop at a friend's house.
        [ link to this | view in chronology ]
      - btr1701 (profile), 7 Sep 2012 @ 9:04am
        
        Re: Re: Re: Re: confused
        > Why are they allowed to search all your
        > text messages and call history without a
        > warrant?
        
        Because they had the consent of the homeowner in this case. It turned out that phone didn't belong to the homeowner, but the cops didn't know that, and I don't think it's reasonable to expect that they should.
        
        > Lets say I come over your house, and I bring
        > my laptop. While I am sitting at the table
        > using my laptop, the police enter into your
        > house. Are they allowed to search my laptop?
        
        If you're sitting there and you make it clear that it's your laptop, not mine, then there's no issue. The police can't search it.
        
        But if you bring your laptop to my house, then go home and leave it behind, and the cops show up, and I give them consent to search the house, it's not unreasonable for the police to believe that your laptop belongs to me, since it's sitting on my table, in my kitchen, in my house.
        [ link to this | view in chronology ]
    - Anonymous Coward, 6 Sep 2012 @ 7:33pm
      
      Re: Re: Re: confused
      As I mentioned, I read the story elsewhere.
      
      Regarding the phone, it was clearly the boyfriend's and the police were aware of this I believe. The reason it's considered to be in violation, regarding their searching it despite being given entry, is that the boyfriend while not living there 24/7 did spend a rather significant amount of time at the place. Essentially making it his residence, as such he had a reasonable expectation of privacy to any items left in his "residence".
      [ link to this | view in chronology ]
      - Anonymous Coward, 7 Sep 2012 @ 7:28am
        
        Re: Re: Re: Re: confused
        According to the court, the boyfriend/defendant had told the cop (who picked up and looked through the text messages) that he (the defendant) did not own a cell phone. So myabe it was "clearly" the boyfriend's (and, as it turns out, it was), but it is fdifficutl to see how the cop could have determined that at the time.
        [ link to this | view in chronology ]
  - f0nZi3 (profile), 7 Sep 2012 @ 5:58am
    
    Re: Re: confused
    Wouldn't this case fall under Probable Cause since she invited the officers into the home (and she had reasonably apparent use of or control over the property)?
    
    I guess the act of picking up a phone without the owners consent to view it would require a search warrant or at the very least, verbal permission from the owner to view its contents. I'm really torn her. I don' want anyone violating our 4th Amendment rights, but I have to think that Probable Cause would fall into the initial discovery of evidence. If they failed to get a search warrant after the initial discovery, and proceeded with their investigation without a SW. Yeah, they really screwed up big time.
    [ link to this | view in chronology ]
    - btr1701 (profile), 7 Sep 2012 @ 9:08am
      
      Re: Re: Re: confused
      Probable cause isn't justification for a search. Probable cause is what you need to prove to a judge before the judge will issue a warrant to search.
      
      Bottom line, PC doesn't get you a search. PC gets you a warrant.
      [ link to this | view in chronology ]
- Beech, 6 Sep 2012 @ 4:24pm
  
  Re: confused
  Not quite so sure on #1, but as far as #2 goes, just because you make a call to 911 does not give the police the right to walk into your house, drill holes into your walls, scan your hard drives, and interrogate your dog. I'm pretty sure when the cops show up AND you let them in, they can use whatever they see in plain sight as evidence. I remember one case where an officer moved a computer's mouse to turn off the screen saver, and the screen that came up was incriminating in some fashion. The computer evidence was thrown out because the copper had no reason to be "searching" the premises
  [ link to this | view in chronology ]
- That One Guy (profile), 6 Sep 2012 @ 4:55pm
  
  Re: confused
  1. The fourth amendment protections much by necessity apply to both ends of communication, otherwise it would be laughably easy for the authorities to sidestep it regarding any communications, by just seizing whatever they want at the point where it arrives instead of at the point it is sent.
  
  2. Just because you call the police over for some reason(in this case to report the fact that her son had stopped breathing), does not mean they have the right to riffle through your stuff while they are there.
  
  Now, I had thought of a scenario in which case the actions of the police officer would have been understandable, that of the text being plainly visible on the screen, in which case merely looking at it would have shown the text, but the original article isn't quite clear on if that was the case or not, so I can't really comment one way or another there.
  
  That said, reading the article it seems to me like the judge may have gone a bit overboard, and basically tossed all the evidence the police collected, not just the stuff related to the phone, though this could have been in response to the police apparently stretching, and even breaking, the rules as to what they could take with regards to the warrants they had, making any evidence suspect.
  [ link to this | view in chronology ]
  - Anonymous Coward, 6 Sep 2012 @ 7:30pm
    
    Re: Re: confused
    "That said, reading the article it seems to me like the judge may have gone a bit overboard, and basically tossed all the evidence the police collected, not just the stuff related to the phone, though this could have been in response to the police apparently stretching, and even breaking, the rules as to what they could take with regards to the warrants they had, making any evidence suspect."
    
    I read about the story elsewhere, but I believe the reason the judged tossed out a lot of the evidence is that the original warrant which led to the follow-up warrants that did lead to the seizure of said evidence was given/obtained under false pretenses. Basically, they made something up to get the original warrant and then just ran with it from there.
    
    So since the original shouldn't have been given in the first place, everything that came from it had to go.
    [ link to this | view in chronology ]
    - DH's Love Child (profile), 7 Sep 2012 @ 12:21am
      
      Re: Re: Re: confused
      "So since the original shouldn't have been given in the first place, everything that came from it had to go."
      
      That was my understanding as well.. the fruit of the poisoned tree
      [ link to this | view in chronology ]
  - Josh in CharlotteNC (profile), 7 Sep 2012 @ 7:10am
    
    Re: Re: confused
    That said, reading the article it seems to me like the judge may have gone a bit overboard, and basically tossed all the evidence the police collected, not just the stuff related to the phone,
    
    Not a lawyer, but my guess would be that because all of the evidence that developed as a result of the search of the phone must also be thrown out if the search of the phone is ruled illegal.
    [ link to this | view in chronology ]
Keroberos (profile), 6 Sep 2012 @ 4:06pm

And they really dropped the ball, because in most places the courts will usually allow the police to confiscate the phones, and then apply for the warrant. This can be allowed if there is the possibility of evidence destruction--which would be a valid concern in this case (healthy six year old boys don't usually just drop dead for no reason).
[ link to this | view in chronology ]
anon, 6 Sep 2012 @ 4:56pm

seriously Guys
After thinking about this a bit and trying to justify what the cops did I can't, they should have declared the possibility of foul play and locked down the murder scene then applied for whatever court order is necessary to do a search. Yes it puts obstacles in there way but in the bigger picture it prevents abuse of there power , which in these days where we see the police using excessive force, lying in court to get a conviction and harassing people for no reason I think the law is correct, if the police could be trusted 100% (which the court obviously does not) then I would say yes give them the right to search on a suspicion of a crime being committed, but in this day and age that right would be abused by the police heavily and that is what everyone needs to be protected from.
[ link to this | view in chronology ]
- Jason, 6 Sep 2012 @ 5:48pm
  
  Re: seriously Guys
  Yep, and I could even buy stumbling upon the initial clue the way he did, especially with the urgency of the immediate situation and the guy saying it wasn't his phone.
  
  But the instant he realized he stumbled on evidence without intending to search, he should have stopped digging into the phone. From that point on, he needed to follow process and get the proper authority to search the phone.
  
  All this other crap about the one detective securing the phone on his person. That's just begging for trouble. There is no accident that excuses that much done wrong.
  [ link to this | view in chronology ]
Anonymous Coward, 6 Sep 2012 @ 6:21pm

Middle ground?
Perhaps the killers should not be let off because of the improper behaviour of the cops. They should be punished for what they've done. However, the cops involved should be fired, fined, and perhaps jailed for their actions.
[ link to this | view in chronology ]
- That Anonymous Coward (profile), 6 Sep 2012 @ 7:42pm
  
  Re: Middle ground?
  Perhaps they need to actually build a real case with real evidence.
  
  While the idea of a killer walking free is repugnant, how many people are serving time or were executed for crimes it turns out they had nothing to do with.
  All it took was an overzealous cop creating evidence and violating their rights to get and stick a case on them.
  
  If we start letting them find a "middle" ground we end up on a very slippery slope where they expand and expand what puts you in the middle ground.
  
  Look at many of the Gitmo detainee's, their alleged crime is to wear a mass manufactured watch that was the preferred watch of bombers. You didn't even need to find them with bomb making supplies, just wearing the watch is enough "evidence" to ship them to Gitmo and hold them indefinitely. People accept this because of ZOMG TERRORISTS, but that watch is sold in the US. If they started scooping people off the streets for owning or wearing one would there not be outrage?
  
  We have laws, and when the people charged with investigating and enforcing those laws start breaking the rules it makes a mockery of them.
  There is no pass for but but but we think they were bad, so that justifies violating their rights.
  
  I often laugh at the media hype and police saying "bomb making materials were found in the suspects home." because amazingly enough a majority of common household items can become bombs, toxic gases, and a slew of horrible things. But when you paint them as bomb making supplies you can almost guarantee the conviction. How is making that statement publicly allowing there to be a fair trial?
  [ link to this | view in chronology ]
  - peepsie (profile), 6 Jun 2014 @ 12:55am
    
    Re: Re: Middle ground?
    yeap. ZOMG terrorists
    
    And the next favorite is
    
    *but think of the chilllllldrennnnn*
    (insert mock whiney voice oozing with fake concern*
    [ link to this | view in chronology ]
Anonymous Coward, 6 Sep 2012 @ 6:28pm

ppl who cnt spel shdnt breed
[ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 7 Sep 2012 @ 4:00am

How funny is it that Mike Masnick continues to post about privacy issues when he regularly looks at IP addys to identify his detractors?

Mike - seriously, you're a world class douchebag and this blog is a daily advertisement of that reality.
[ link to this | view in chronology ]
- Anonymous Coward, 7 Sep 2012 @ 7:04am
  
  Re:
  Yes, because someone has to look at IP addresses to realize who is making a comment. No way the writing style or the ad homs used identify the individual. /s
  
  I'm going to even state that was me being sarcastic. Writing styles are as unique as fingerprints in a majority of cases. While it's possible to emulate another's writing style, it's not possible to portray it the way the original person would. As such, it's easy to tell when the same two or three REAL douchebags are posting without having Mike alert the rest of us to this fact.
  
  Sorry, but your rant is irrelevant and just another attempt at discrediting Mike for your own shortcomings. Here's a tip, try writing something original and not douchey and maybe people won't realize it's you. Just a suggestion. Doubt you'll do it. And then you'll complain when you're "identified" again. (Oh yeah, Mike saying "I thought you promised to leave forever" or "oh, you're the guy who's been telling me to 'fuck off and die'" is in no way identifying anyone. At all.)
  [ link to this | view in chronology ]
- Anonymous Coward, 7 Sep 2012 @ 7:11am
  
  Re:
  Why would anyone need to look at 'IP addys' to identify the detractors when they make themselves plainly known by their comments?
  [ link to this | view in chronology ]
- Anonymous Coward, 7 Sep 2012 @ 7:11am
  
  Re:
  You're coming to his website. The logs belong to him.
  
  That this is lost on you displays more about your character than anyone else.
  
  And yet, this has nothing to do with the article in context or content.
  
  You walked into his living room, and you don't expect him to discover who you are? Whatever privacy you thought you had from the owner of the website you are visiting was never there to begin with. You put that on yourself by coming here. To borrow a phrase: "Sorry."
  [ link to this | view in chronology ]
- That Anonymous Coward (profile), 8 Sep 2012 @ 8:44pm
  
  Re:
  Your on the net posting, your ip address is there to be seen. You have no expectation of privacy for it, and if you had a brain in your head you'd figure out how to cloak it. But given that your an intolerable ass its not hard to figure out your yet another TAM.
  [ link to this | view in chronology ]
Anonymous Coward, 7 Sep 2012 @ 7:15am

It is better that 10 guilty men go free, than one innocent is punished.

Sadly, for the sake of the child, this is tragically as true today as ever.
[ link to this | view in chronology ]
Dirkmaster (profile), 7 Sep 2012 @ 8:28am

Okay, I'm not a Lawyer, but...
Since the message was UNSENT, how can you PROVE that the cop didn't type the message himself? He picked up the phone, started "messing with it". Not that I think that that happened (I'm hoping a detective couldn't even THINK of that bad grammer), but still, in a court of law, how would you prove he didn't?
[ link to this | view in chronology ]
- That Anonymous Coward (profile), 8 Sep 2012 @ 8:46pm
  
  Re: Okay, I'm not a Lawyer, but...
  they same way the proved a handcuffed man shot himself in the head. That someone recorded on video tape completely restrained managed to jump up and punch them while still cuffed so he needed to be beaten. They same way they tasered a hogtied woman in a car, fearing she would escape and injure nearby children.
  
  They say we didn't do it, you can't believe the tape, and people buy it.
  [ link to this | view in chronology ]
Nicki Manaj, 1 Mar 2013 @ 2:58pm

barbies n kens
my barbs and kens should be treated good
[ link to this | view in chronology ]
Nicki Manaj, 1 Mar 2013 @ 2:59pm

re
ruff ruff because they needed it good n ido it good
[ link to this | view in chronology ]