Warrantless Text Message Search Threatens to Scuttle Murder Case

Cell phones allow us not only to communicate with one another, but also to take and store pictures, “check in” from a location, balance our checking account, and even update our blogs. When the content of a cell phone may help the police to solve a crime, the legality of the search of both the phone and its content is of crucial importance. However, the law of warrantless searches of cell phones is not yet settled.

A recent 190-page decision from Rhode Island Superior Court Justice Judith Savage in State of Rhode Island v. Patino, C.A. No.: P1-10-1155A, weighs in on the debate. The facts in this case are very sad; here is a quick summary. A 6-year-old died, possibly from abuse. Four cell phones are observed by the police at the scene. The police seized and searched them. One belonged to the mother of the victim, and at least two others belonged to the Defendant. Was the search legal?

Facts of the case

On October 4, 2009, the Cranston Police Department was called by Trisha Oliver, the mother of 6-year old Marco Nieves, who was unresponsive and not breathing. He was taken to the hospital, while Sergeant Michael Kite went to Oliver's apartment. He met there Michael Patino, Oliver’s boyfriend and the father of her infant daughter. Sergeant Kite observed four cell phones in the apartment: a LG Verizon, a Metro PCS Kyocera, a black T-Mobile Sidekick, and an iPhone.

At one point during his visit, it seems that Sergeant Kite picked up the LG Verizon cell phone because it beeped, and he may have viewed a “sent” message addressed to “DaMaster.” The message read as follows:

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

Patino was taken to the police headquarters, and he took the T-Mobile phone with him. Sergeant Kite called headquarters to suggest that this phone should be confiscated upon arrival, which was done. The police obtained a warrant to search the apartment, and seized the LG phone (which apparently belonged to Oliver) and the other two phones (which might have belonged to Patino). Meanwhile, Patino was being interrogated by the police, and it seems that during that interview police officers alluded to the content of text messages on his T-Mobile phone and their evidentiary value. They may even have quoted the text seen by Sergeant Kite on the LG Verizon phone. Patino was eventually arrested, after admitting that he had hit Marco. Marco Nieves died the afternoon of that day. The police eventually obtained a warrant to search the T-Mobile phone.

Patino was indicted by a grand jury in 2010 for the murder of young Marco, and the case was expected to be tried before Justice Savage this fall. Patino filed several motions to suppress the text messages, the cell phones, the cell phone record, and his confession, arguing that this evidence was the product of illegal searches and seizures, in violation of the Fourth and the Fifth Amendment of the Constitution and Article 1, Section 6, of the Rhode Island Constitution, which is similar to the Fourth Amendment.

A suppression hearing concluded on August 15, 2012, and on September 4, 2012, Justice Savage issued a suppression order, holding that Patino had a reasonable expectation of privacy in his text messages that granted him standing to challenge the constitutionality of the searches and seizures of the phones by the Cranston police, and the evidence gathered as a result (including Patino's confession). She further held that the searches and seizures were unconstitutional in the absence of a warrant.

The justice's analysis of the search is interesting, and I will attempt to tease it apart here. I will focus in this post on the search of the LG Verizon cell phone, because this phone apparently did not belong to Patino, raising significant questions about a person's right to challenge a search for his text messages on someone else's phone. (That said, the search of the two phones which apparently belonged to Patino, the Metro PCS and the T-Mobile Sidekick, was also found to be unconstitutional.)

A common but unsettled issue

Police efforts to obtain cell phone data are apparently common. Following an article published last April in the New York Times, reporting that law enforcement agencies routinely track cell phones with little or no court oversight, Representative Ed Markey (D-Mass) sent letters to major mobile carriers asking them about the number of requests they receive each year. The