State v. Patino

• Decision Date: 20 June 2014
• Docket Number: No. 2012–263–C.A.,2012–263–C.A.
• Citation: 93 A.3d 40
• Court: Rhode Island Supreme Court
• Parties: STATE v. Michael PATINO.

93 A.3d 40

STATE

v.Michael PATINO.

No. 2012–263–C.A.

Supreme Court of Rhode Island.

June 20, 2014.

Aaron L. Weisman, Department of Attorney General, for State.

George J. West, Esq., Providence, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

On April 2, 2010, Michael Patino (defendant) was indicted for the first-degree murder of Marco Nieves, the six-year-old son of his girlfriend, Trisha Oliver. The state's case against the defendant was constructed largely on the basis of incriminating text messages purportedly sent by the defendant to Ms. Oliver, messages which were discovered on her cell phone by officers of the Cranston Police Department. The defendant filed a number of pretrial motions seeking to suppress the bulk of the evidence that the state intended to use against him. After a month-long series of evidentiary hearings, the hearing justice rendered a comprehensive and thoughtful one-hundred-ninety page written decision. Holding that the defendant had a reasonable expectation of privacy in his text messages, she granted all but one of the motions to suppress. In addition, she found that the defendant had 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,” thereby entitling the defendant to a Franks¹ hearing.

The attorney general, pursuant to G.L.1956 § 9–24–32,² appealed from the SuperiorCourt order, arguing that: (1) defendant lacks standing to contest the lawfulness of the search of Trisha Oliver's cell phone; (2) defendant does not have an objectively reasonable expectation of privacy in sent text messages; (3) defendant has no standing to make a Franks challenge; and (4) even with the removal of the materials identified by the hearing justice, the relevant affidavits were sufficient to establish probable cause. For the reasons set forth in this opinion, we affirm in part and vacate in part the order of the Superior Court.

IFacts and Travel

AInitial Investigation

On October 4, 2009, at approximately 6:08 a.m., Trisha Oliver placed a 9–1–1 call from her Cranston apartment indicating that her six-year-old son was unresponsive and not breathing. At approximately 6:15 a.m., Cranston Rescue and Fire Department responded to the apartment and, within minutes, transported Marco to Hasbro Children's Hospital in Providence. The rescue personnel arrived at the hospital with Marco shortly after 6:30 a.m.

Meanwhile, members of the Cranston Police Department arrived at the apartment to begin an investigation. Sergeant Matthew Kite arrived at the apartment at approximately 6:20 a.m. and spoke briefly with Officer Aldrich, who was leaving the scene to escort the ambulance to the hospital. Sergeant Kite then met outside the apartment with Officers Carroll and Lee, as well as Trisha Oliver. Oliver then escorted Sgt. Kite into her apartment so she could show him Marco's bedroom and other areas of the apartment that he deemed relevant to the investigation of Marco's condition.

Once in the apartment, Sgt. Kite observed Oliver's boyfriend, defendant Michael Patino, sitting on the couch with the couple's fourteen-month-old daughter, Jazlyn. Ms. Oliver proceeded to show Sgt. Kite around the apartment to survey the remnants of Marco's illness. They first passed through the dining room and living room to Marco's bedroom, where Sgt. Kite observed a stripped bed and linens on the floor. They continued on to the master bedroom and viewed another stripped bed, as well as a trash can that Marco had used as a vomit receptacle. Finally, she showed him the bathroom, where Sgt. Kite observed dark brown vomit in the toilet, which he described as having the appearance of “coffee ground[s].” They then returned to the entrance of the apartment; Officer Carroll transported Oliver to the hospital shortly thereafter.

Although Sgt. Kite testified that he did not at that point consider the apartment to be a crime scene, he nevertheless requested that Officer Lee start a crime scene roster to document who entered and exited the apartment. After Oliver had been transported to the hospital, Sgt. Kite remained at the apartment to look for potentially hazardous materials that could have caused Marco's illness. It was at this point that Sgt. Kite observed four different cellular telephones, the contents of which would largely form the basis of the state's case against defendant and the issues on appeal before this Court. Sergeant Kite observed an LG Verizon cell phone (LG phone) on the kitchen counter; a Metro PCS Kyocera cell phone (Metro PCS phone) on the dining room table; a T–Mobile Sidekick cell phone (T–Mobile phone) on the headrest of the couch behind defendant; and an iPhone (iPhone) on the armrest of the couch.

Sergeant Kite then spoke with defendant, who agreed to accompany Sgt. Kite to the Cranston police headquarters to make a statement about what had transpired that morning. At the suppression hearing, Sgt. Kite testified that he asked defendant what had happened the previous night, but defendant indicated that he had not been there the previous night and did not know. Sergeant Kite also testified that he inquired of defendant the time at which Oliver had called him to come over, to which defendant responded that she had not called him because he does not own a cell phone, and that he had arrived at the apartment early that morning, by chance.

Sergeant Kite testified that, shortly after this interaction with defendant, he noticed that the LG cell phone on the kitchen counter “indicated audibly and by light that it was receiving a message.” In response, Sgt. Kite went over to the phone and picked it up, checking to see if it was Marco's father or someone else calling regarding Marco's condition. Sergeant Kite testified that he picked up the phone and viewed an alert on the front screen of the phone indicating that there was one new message, at which point he opened the phone to view the interior screen. The interior screen indicated that there was a new message, but that the message could not be received due to a lack of credit on the phone account. In an effort to acknowledge receipt of the message and thereby avoid repeat notifications, Sgt. Kite testified that he “manipulated the button” on the phone, which led to a mailbox listing incoming and outgoing text messages. Sergeant Kite testified that, upon seeing the word “hospital” in a text message, he clicked the phone to view the following message in the “outbox” folder: ³ “wat if I got2 take him 2 da [hospital] wat will I say and dos marks on his neck omg.” The message was addressed to “DAMASTER” at phone number (401) xxx-xx80; a subsequent investigation revealed that “DAMASTER,” the intended recipient of the text message was, in fact, defendant.

Sergeant Kite testified that, although he found the message suspicious, he did not scroll through the phone any further, but instead placed the phone back on the counter and proceeded to call Lt. Sacoccia at headquarters to inform him of the curious text message. Sergeant Kite also informed Lt. Sacoccia that there would not be anyone to take care of Jazlyn while defendant was being interviewed, at which point Lt. Sacoccia consulted with the Department of Children, Youth, and Families (DCYF) and had an ambulance dispatched to pick up Jazlyn and transport her to the hospital “as a precaution.” The ambulance arrived and left with Jazlyn shortly thereafter.

At approximately 7:25 a.m., Officer Jeremy Machado escorted defendant to Cranston police headquarters, where they were met by Officer Ryan Shore. Officers Shore and Machado brought defendant to a conference room and directed him to empty his belongings onto a table. Among the belongings was the T–Mobile phone, which was confiscated immediately by Officer Machado. Shortly thereafter, Officer Machado escorted defendant upstairs to the detective division.

After defendant left the apartment, Sgt. Kite, who had remained on scene, noticed that the T–Mobile phone that had been on the headrest behind defendant was no longer there. Sergeant Kite testified that he immediately called headquarters about the missing phone and suggested that, “[t]here is possibly some information that needs to be protected on it and I just advised [Lt. Sacoccia] that you may want to take it off him when [Machado and defendant] arrived at headquarters.” Sergeant Kite then remained at the apartment until 10:15 a.m., during which time Det. Wayne Cushman and Det. Peter Souza from the Bureau of Criminal Investigation (BCI) arrived.

There is considerable discrepancy about what occurred during the time that the officers remained at the apartment. The hearing justice found that the detectives received a call from Lt. Sacoccia informing them that a search warrant had been signed, at which time they began to photograph and videotape the scene, as well as gather and bag items for evidence. Sergeant Kite and Sgt. Cushman testified, however, that the detectives did not begin to photograph and bag evidence until after Sgt. Edward Walsh arrived with a hard copy of a signed search warrant.⁴ In any event, among the items bagged for evidence was the LG phone, the contents of which had been previously photographed by Det. Cushman. Instead of securely sealing the phone, the BCI detectives placed it in a brown paper bag, which Sgt. Kite brought with him when he left the apartment. The bag with the phone was eventually returned to Det. Cushman at headquarters later that afternoon.

Photographs of the contents of the LG phone, which was later determined to be Oliver's phone, reveal text messages that include not only vulgar and profane language, but also information inculpating defendant with respect to Marco's injuries.⁵

The evidence adduced at hearing with respect to the collection and documentation of the...