State v. Green

• Decision Date: 15 April 2015
• Docket Number: 49,741–KA.
• Citation: 164 So.3d 331
• Parties: STATE of Louisiana, Appellee v. Justin Keith GREEN, Appellant.
• Court: Court of Appeal of Louisiana — District of US

164 So.3d 331

STATE of Louisiana, Appellee
v.
Justin Keith GREEN, Appellant.

49,741–KA.

Court of Appeal of Louisiana, Second Circuit.

April 15, 2015.

164 So.3d 335

Ashley Page, for Appellant.

J. Schuyler Marvin, District Attorney, C. Sherburne Sentell, III, Marcus Ray Patillo, John M. Lawrence, Assistant District Attorneys, for Appellee.

Before MOORE, LOLLEY and PITMAN, JJ.

Opinion

MOORE, J.

The defendant, Justin Keith Green, was convicted of the computer-aided solicitation of a minor, in violation of La. R.S. 14:81.3. He was sentenced to serve 10 years' imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. The defendant appealed, urging three assignments of error. For the following reasons, we affirm.

FACTS

The victim's mother, Robin Wells, contacted the Springhill Police Department after learning that her 12–year–old daughter, D.M., had been contacted on Facebook by an adult male. Thereafter, she provided Detective Bryan Montgomery of the Springhill Police Department and the Internet Crimes Against Children Task Force with her daughter's Facebook account information and her cell phone. Det. Montgomery discovered that the defendant, Justin Green, was on D.M.'s Facebook list of “friends.” Green's public profile page on Facebook reflected a series of messages between D.M. and Green, as well as a photograph showing D.M., Green, and others on a merry-go-round. Green later denied that he was the person in the photograph, and he did not recall any conversations with D.M. He did recall some of the other conversations reflected by the Facebook profile. Det. Montgomery located a “contact” on D.M.'s cell phone named “Justin Green.” While he was in possession of D.M.'s phone, on May 23, 2012, a text message from “Justin Green” was received. The message asked: “You want to do something, you want to go hang out, you want to do something.” Det. Montgomery then surreptitiously engaged in a text message conversation with Green, posing as D.M. Green suggested that the two could hang out at the park, or they could go to a pond and D.M. could go swimming. The conversation continued as follows:

D.M.: Y only me

Green: I don't look good in trunks

D.M.: Well I don't look good in a suit

Green: Then don't wear one and I won't look

D.M.: Lol yea right

Green then suggested that D.M. could swim with her clothes on, but Det. Montgomery/D.M. responded that, “then I would be wet walkin home.”

The conversation continued:

Green: Then what are we going to do then.

D.M.: U tell me

Green: I want some head but I can't get some from you:(

D.M.: Y

164 So.3d 336

Green: I didn't think you would? ?

D.M.: Y

Green: So would you

D.M.: If u want me 2

Green: Yea

At Green's request, a photograph of D.M. was sent to his cell phone. He suggested that the two meet at the park in approximately one hour and sent a photograph of himself to D.M. Green also agreed to bring a condom to their meeting place, at the request of Det. Montgomery/D.M. Green changed the meeting location to the post office, telling Det. Montgomery/D.M. that he was outside of the post office at 5:17 p.m.

Det. Montgomery went to the post office and found Green at the Farmers' Market, which is located directly across the street from the post office. Green was placed under arrest, advised of his rights and patted down. Green had an ear bud in his ear that ran down into a cell phone that was in his pocket, which Det. Montgomery seized. Det. Montgomery testified that he did not observe Green send a text message, nor was Green using his cell phone at the time of his arrest. He identified the defendant as the man he arrested.

Det. Montgomery removed the back of the cell phone and its battery to obtain the serial number and information about the data card. On May 30, 2012, Det. Montgomery applied for and obtained a search warrant for the cell phone seized from Green at the time of his arrest and for D.M.'s cell phone. On June 17, 2012, Det. Montgomery took both cell phones to the computer forensic lab at the Bossier City Marshal's Office. D.M.'s cell phone was hooked up to a Cellebrite¹ and Det. Montgomery was able to retrieve all of the text messages from the phone. However, Green's cell phone was not compatible with the machine. The next day, Det. Montgomery turned on Green's cell phone, and he was able to take pictures of the text messages on the phone. Green was charged with the computer-aided solicitation of a minor, in violation of La. R.S. 14:81.3, and indecent behavior with juveniles, in violation of La. R.S. 14:81.

On July 16, 2012, Green filed a motion to suppress evidence obtained as a result of the warrantless search. He asserted that a search of the device was conducted prior to the application for and issuance of a search warrant. He argued that any evidence retrieved from “any digital storage device and/or cellular telephone owned or possessed” at the time of his arrest should be suppressed because the data contained on the cell phone was seized without a valid warrant or Green's consent.

On August 31, 2012, the motion to suppress came before the court for hearing. Det. Montgomery testified that, with the consent of D.M.'s mother, he took over D.M.'s Facebook account and cell phone. He further testified that to apply for a search warrant he removed the back of the cell phone and removed the battery. He identified Green's cell phone as a Samsung Model SCH–R375C with an MEID or serial number of A00002F7757DO, and stated that the phone had an eight gigabyte micro SD card. He testified that at the time he obtained this information, he did not have Green's consent to search the cell phone or a search warrant. Prior to obtaining the

164 So.3d 337

search warrant, he never turned on Green's cell phone to search for any information on it, and he never connected the cell phone to any type of electronic device. He testified that he got the serial number for purposes of identifying the cell phone and that by retrieving the serial number, he did not obtain any of Green's personal information. Det. Montgomery testified that he recorded the serial number of the cell phone for purposes of identifying the cell phone that Green had on his person at the time of his arrest for a search warrant.

The state argued that a search warrant must specifically articulate what is to be searched, when, and by whom, and in this case the serial number was obtained only to specifically identify the item to be searched. The state further argued that no expectation of privacy existed relative to the serial number on Green's cell phone. Therefore, the motion to suppress should be denied because the evidence was obtained through a lawful search of the contents of the phone performed after a search warrant was issued.

The defense argued that a search is a search, regardless of whether it is performed to obtain identifying information for a warrant or to obtain inculpatory evidence. The defense argued that the state failed to offer any exigent circumstances for searching Green's cell phone prior to obtaining a search warrant. The defense further argued that the serial number of Green's cell phone could have been obtained without illegally searching the cell phone by issuing a subpoena to the phone company for the phone records. Therefore, the defense asserted that all of the records and evidence taken from Green's cell phone were tainted by the initial illegal search performed prior to the issuance of the warrant.

The trial court denied the motion to suppress and stated the following:

The phone, obviously, is in possession of the Springhill police as the result of a search incident to a lawful arrest. The narrow issue in this case, as stated by both counsel, is whether the fact that Officer Montgomery removed the back from the phone to obtain the serial number and other identifying information constituted a search. I feel that the phone is simply a piece of hardware and the operative information to constitute a charge or potential charge against the defendant would be the contents of that phone, whether it be a text message, a voice mail, a picture image or whatever, and none of that was obtained until after Officer Montgomery obtained the search warrant. The search warrant could not have been obtained without specific information identifying the phone which would put him in the untenable position of perhaps not being able to find, obtain the search warrant at all without identifying information. So I find that under the facts of this case, removing the back of the phone was not a search and the motion to suppress is denied ...

Green's application for a writ of supervisory review was denied.

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