State v. Patino, C.A. NO.: P1-10-1155A

CourtRhode Island Superior Court
Writing for the CourtSAVAGE
Docket NumberC.A. NO.: P1-10-1155A
Decision Date04 September 2012


C.A. NO.: P1-10-1155A


Date: September 4, 2012


SAVAGE, J. When the precious rights of individuals to keep private the expression of their innermost thoughts collides with the desire of law enforcement to know all at all costs, this Court must take special care to ensure that what it says today is fair game for police conduct does not sacrifice on the altar of tomorrow the rights that we hold most dear under our state and federal constitutions.

In this criminal case, the State indicted Defendant Michael Patino for the alleged murder of Marco Nieves, the six-year-old son of Defendant's girlfriend, Trisha Oliver. The case against the Defendant is built largely on cell phone text messages that the State claims were sent by the Defendant to his girlfriend and that the Defendant claims were illegally obtained by the Cranston Police Department, without a warrant, in violation of his privacy rights. Defendant protests not only the way in which the police have attempted to build a case against him, but the charge of murder itself; he contends that he at no time intended to hurt, much less kill, Marco, and that the text messages at issue do not prove otherwise.

The case is before this Court principally for decision with respect to a panoply of pre-trial motions to suppress filed by the Defendant by which he seeks to bar the State from introducing certain evidence at trial, including the text messages found on Trisha Oliver's cell phone, numerous cell phones and their contents, and his videotaped and

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written statements that were a product of his police interrogation. Defendant argues that the collection of evidence by the Cranston Police Department repeatedly violated his rights against unreasonable searches and seizures and self-incrimination, as guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, sections 6 and 13 of the Rhode Island Constitution. He also contends that his videotaped and written statements to the police were involuntary and the result of coercive and threatening police tactics, in violation of his due process rights under the State and Federal Constitutions.

This Court convened an unprecedented month-long series of evidentiary hearings to address the volume of issues presented by these and other pre-trial motions. In the middle of the hearing, the Defendant moved for a Franks hearing, arguing that the suppression hearing had adduced evidence of multiple false statements in a dozen affidavits sworn to under oath by the police to secure search warrants in this case.

For the reasons set forth in this Decision, this Court holds that 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. In addition, this Court finds that the Defendant made a preliminary showing that numerous

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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. This Court reserves decision as to all other pending pre-trial issues until trial.


Facts and Travel


Initial Investigation

The factual background of this case, as outlined in this Decision, does not represent this Court's actual view of the facts in this case. It reflects instead the chronology of events pertinent to the suppression motions, as testified to by the witnesses and established by the exhibits introduced during the lengthy suppression hearing.1 This Court emphasizes, however, that much of what the Cranston Police Department did during the course of its investigation of the Defendant fails to square with this chronology; the evidence of record conflicts in many respects with the testimony of witnesses at the suppression hearing or their testimony was simply lacking in credibility. This factual background, therefore, is outlined simply for context as the version of events presented to this Court at the hearing. To the extent that this Court finds the facts to be at

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odds with this chronology, it will address them later in this Decision in its analysis of the issues presented.

On the morning of October 4, 2009, at approximately 6:08 a.m.,2 Trisha Oliver placed a frantic 911 call3 from her Cranston apartment at 575 Dyer Avenue, Apartment B18. According to the recording of the call, Trisha Oliver indicated that her six-year-old son, Marco Nieves, was unresponsive and not breathing. At approximately 6:11 a.m., Cranston Rescue and Fire Department responded to her apartment. Within minutes, rescue personnel transported Marco to Hasbro Children's Hospital. The dispatcher called ahead to alert emergency staff at the hospital that Marco was in full cardiac arrest. According to the 911 call, rescue personnel arrived at the hospital with Marco before 6:30 a.m. See St.'s Ex. 6.

While these events transpired at the hospital, the Cranston Police Department began its investigation at the scene. Sergeant Matthew Kite responded to the apartment at approximately 6:20 a.m. As he arrived, Sgt. Kite spoke very briefly with Officer Aldrich, who was leaving the scene in his police cruiser to escort the ambulance carrying Marco to the hospital. Subsequently, Sgt. Kite met with Officers Kim Carroll and Dan Lee, as well as Trisha Oliver. See St.'s Ex. 5. After speaking briefly outside the apartment, Trisha Oliver escorted Sgt. Kite into the apartment and showed him those rooms and areas of the apartment that he already had deemed relevant to Marco's illness.

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Upon entering the apartment, Sgt. Kite observed a male, later identified as Trisha Oliver's boyfriend, Defendant Michael Patino. Defendant was sitting on the couch with a young child, later identified as his and Trisha Oliver's 14-month old daughter, Jazlyn Oliver. Trisha Oliver showed Sgt. Kite into Marco's bedroom, where he observed a stripped bed and linens on the floor; she showed him into the master bedroom, where Sgt. Kite saw another stripped bed and a trash can that had been used as a vomit receptacle by Marco; and she showed him the bathroom, where Sgt. Kite observed dark brown vomit that looked like coffee grounds in the toilet.4 Sgt. Kite's tour of the apartment, of necessity, took him through the dining and the living rooms that one must pass through upon entering the apartment to get to the bedrooms. The only room Sgt. Kite claims that Trisha Oliver did not specifically show him was the kitchen, although he may have accessed that area of the apartment on his own.

After the quick tour of the apartment, Sgt. Kite returned with Trisha Oliver to the entrance of the apartment. Officer Carroll transported her to the hospital soon thereafter.5 See St.'s Ex. 5. Upon their departure at approximately 6:30 a.m., Sgt. Kite requested that Officer Lee start a Crime Scene Roster. See St.'s Ex. 5. Though no officers yet considered the apartment a crime scene, Sgt. Kite testified that he believed it was prudent to record who entered and exited the apartment.6 Sgt. Kite remained on the scene in the

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living and dining room areas looking for potentially hazardous materials that could have caused Marco's illness. In the process, he observed four cell phones: an LG Verizon cell phone on the kitchen counter;7 a Metro PCS Kyocera cell phone8 on the dining room table; a black T-Mobile Sidekick cell phone9 on the back headrest of the couch, near where Mr. Patino was sitting; and an iPhone on the far armrest of the couch.10

During this time, Sgt. Kite spoke with Defendant about going to the Cranston Police Station and making a formal statement about that morning's events, to which Defendant apparently was amenable, though he explained that there were no family members who could take care of Jazlyn in the interim. In his testimony, Sgt. Kite explained that he asked Defendant what happened the night before, to which Defendant responded that he did not know because he had not spent the night there. Sgt. Kite subsequently asked Defendant when Trisha Oliver had called him and asked him to come over, to which Defendant responded that she had not called him because he did not own a

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cell phone. According to Sgt. Kite, Defendant asserted that he had arrived at the apartment in the early hours of the morning only by chance.

Sometime after this interaction, the apartment landline telephone rang and the call was answered by...

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