State v. Michael Patino

Supreme Court

No. 2012-263-C.A.
(P1/10-1155A)

State :

v. :

Michael Patino. :

NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
 Supreme Court

No. 2012-263-C.A.
(P1/10-1155A)

State :

v. :

Michael Patino. :

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 Franks 1 hearing.

1
Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
-1-
 The attorney general, pursuant to G.L. 1956 § 9-24-32, 2 appealed from the Superior

Court 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.

I

Facts and Travel

A

Initial 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

2
General Laws 1956 § 9-24-32 provides, in pertinent part:
“In a criminal proceeding, the attorney general shall have
the right to object to any finding, ruling, decision, order, or
judgment of the superior court or family court, and the attorney
general may appeal the findings, rulings, decisions, orders, or
judgments to the supreme court at any time before the defendant
has been placed in jeopardy * * * .”
-2-
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.

-3-
 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

3
Critically, although this message was stored in the “outbox” folder, the phone indicated that the
message was “saved” in the “outbox” and, due to a lack of funds on Oliver’s phone, was never
actually delivered.
-4-
“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

-5-
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

4
On cross-examination, after being impeached with his prior bail hearing testimony, Det.
Cushman admitted that, prior to Sgt. Walsh arriving with the warrant he began photographing the
text messages after being instructed over the phone by Sgt. Walsh to do so.
5
For example, on October 3, 2009, the following exchange of texts sent between Oliver’s LG
phone and defendant’s T-Mobile phone occurred between approximately 4:48 p.m. and 5:57
p.m.:
“Sent: of course he is gonna be all hurt and cryin cuz u fuckin beat
the crap out of him im not wit that shit.
“Read: I PUNCH DAT LIL BITCH 3 TIMES AND DAT WAS IT.
DA HARDEST 1 WAS ON HIS STOMACH CUZ HE MOVED.
BUT LET HIM BE A MAN AND NOT A LIL BITCH LIKE U.
“Read: WAT KIND OF DISCIPLINE OR ANYTHIN U GONNA
KNO.
-6-
 The evidence adduced at hearing with respect to the collection and documentation of the

various cell phones not only is unclear, but evinces an apparent disregard by the Cranston Police

Department for the chain of custody and preservation of what was ultimately extremely

probative evidence in the state’s case against defendant. 6 For instance, Officer Machado testified

that he confiscated defendant’s T-Mobile cell phone, and, instead of securing the phone into

evidence at the police station, he secured the phone on his person. Officer Machado

subsequently gave defendant’s confiscated cell phone to Sgt. Walsh, who attempted to turn the

phone on and, when unsuccessful, proceeded to place it in his pocket. The phone was then

transferred from Sgt. Walsh to Det. Souza, and then to Det. Cushman before it was eventually

logged into evidence at the police station later that day. Furthermore, according to the extraction

“Sent: wateva u always think u didnt hit hard but u do u hurt me
could imagine wat u did 2 him 4 ur info he isn’t complaining just
him throwin up and in pain is enough
“Sent: idk wat u did but u hurt is stomach real bad
“* * *
“Sent: wtf did u do 2 my son mike
“Read: I TOLD U. I WENT 2 PUNCH HIM ON HIS BACK
AGAIN AND HE MOVED AND I HIT HIM ON HIS
STOMACH.
“* * *
“Sent: mike he is in madd pain u had 2 hit him real hard mike wtf
“Read: I HIT HIM DA SAME WAY EVERYWHERE BUT ITS
DAT HE MOVED AND I HIT HIM BAD.”
6
The hearing justice remarked that “[p]rior to and throughout this hearing, there were blatant
inconsistencies in the evidence about which cell phones were seized from the apartment.” For
instance, she cited to Sgt. Kite’s testimony that the cell phone missing from the apartment after
defendant’s departure was the Metro PCS phone (as opposed to the T-Mobile phone).
Additionally,
“[T]he many warrant affidavits mention that a Metro PCS cell
phone belonging to [defendant] was taken from him while he was
in police custody. Yet, that cell phone appears on the B.C.I.
seizure report and photographs taken at the apartment at 9:22 a.m.
reveal that the Metro PCS cell phone was on the dining room table
at the apartment at that time. In other testimony and at least one
warrant affidavit, it says that it was the T-Mobile cell phone that
was taken from * * * [d]efendant’s person.”
-7-
report 7 entered into evidence at the suppression hearing, at 8:09 a.m. a call was placed from the

LG phone to the phone’s voicemail account. The hearing justice determined that, because the

apartment had been secured at that point, a Cranston police officer must have placed the call

during the course of the investigation. Additionally, photographs of the apartment make it

apparent that, throughout the morning, officers picked up and moved the Metro PCS phone.

B

The Interrogation 8

While Sgt. Kite and the BCI detectives remained at the apartment, Det. Jean Slaughter

and Det. John Cardone interrogated defendant at the police headquarters for nearly three hours,

during which time defendant signed a form waiving his Miranda 9 rights. Throughout the entire

interview, the detectives continuously raised the topic of defendant’s incriminating text messages

to Oliver. At various points during the interview, Det. Slaughter and Det. Cardone left the

interview room to consult with other officers, specifically about the content of the text messages

on the LG phone. It is unclear whether the interrogating detectives saw the texts or photographs

thereof firsthand, or were relayed the contents verbally; what is clear is that, during the course of

the interrogation, the detectives were made aware of the incriminating text messages and

7
The extraction report, created pursuant to a June 8, 2012 warrant, was entered into evidence as
state’s exhibit 32, and reveals, in detail, the contents of the phone, including: incoming/outgoing
calls, text messages sent/received, alerts from the service provider, and any other information
that remained on the phone at the time of extraction.
8
The CD recording of the interview entered into evidence at the suppression hearing is not
contained in the record certified to this Court. The majority of the direct and cross-examinations
of the two interrogating officers consists essentially of state and defense counsel playing clips of
the recording and asking questions based on the recording. The interrogating detectives were
seemingly unable or unwilling to recall any specifics regarding the interview that were not
specifically contained on the recording. Detective Slaughter’s repeated unwillingness to
acknowledge his own conduct, even after having the recording played for him in open court,
clearly frustrated the hearing justice.
9
Miranda v. Arizona, 384 U.S. 436 (1966).
-8-
adjusted their questioning tactics accordingly. 10 After reentering the interrogation room, the

detectives became much more aggressive in an apparent attempt to leverage the text messages

against defendant. Detective Cardone threatened defendant that he would likely be charged with

Marco’s murder, 11 and he began to quote some of the texts in which defendant allegedly

admitted to being physical with Marco.

Although defendant was initially unwilling to acknowledge his participation in the text

messaging, as well as any physical contact with Marco, the more of the text messages the

detectives revealed, the more defendant admitted. Detective Slaughter then began explaining the

possibility of leniency if defendant confessed; after which defendant admitted playing with

Marco before he died, even admitting that he hit him in the ribs. Toward the end of the

interrogation, Det. Slaughter made a direct reference to the text message Sgt. Kite had viewed

earlier that morning regarding the marks on Marco’s neck. At this point, the detectives left

defendant alone in the interrogation room to write a formal statement.

Upon returning to the interrogation room, Det. Slaughter reviewed defendant’s statement

and noticed that it did not include some of the language that defendant had used earlier in the

interview with regard to striking Marco. Detective Slaughter suggested to defendant that he

include the specific language; defendant obliged the officer and added a statement about Marco

taking a “body shot.” The defendant then initialed the statement at the detective’s request. 12

10
The testimony at the hearing was extraordinarily unhelpful in this regard as Sgt. Walsh, as well
as Det. Slaughter and Det. Cardone, could not recall anything that occurred outside of the
interrogation room.
11
Marco was still alive at the time of the interrogation.
12
The hearing justice excluded from use at trial defendant’s confession as well as significant
portions of the recorded and transcribed interrogation. The hearing justice found that the
detectives’ coercive interrogation tactics violated defendant’s due process rights. The state did
not appeal the exclusion of the confession or the interrogation materials; therefore, the due
process issues are not before this Court.
-9-
Shortly thereafter, defendant was handcuffed and placed in a holding cell, and Det. Slaughter and

Det. Cardone left for Hasbro Children’s Hospital to continue the investigation.

C

The Hospital

At 12:30 p.m. on October 4, 2009, while at Hasbro Children’s Hospital, Trisha Oliver

gave what would be the first of two formal, written statements to Cranston police personnel. In

the statement, she explained that on October 3, 2009, at around 3 p.m. she heard Marco throw

up, so she cleaned his clothes and gave him a shower. She also stated that defendant had been at

her apartment, but left at approximately 3:50 p.m., and eventually returned at approximately 11

that same night. She stated that “[defendant] said he went to go hit [Marco] and [Marco] moved

causing him to hit my son in the stomach.” She further stated that although she slept

intermittently, Marco continued vomiting throughout the night. When she finally woke up at

about 6:10 a.m. the next morning to check on Marco, she noticed he was not breathing, at which

point she called 9-1-1 and administered CPR.

Approximately one hour later at around 1:30 p.m., Det. Cardone and Det. Slaughter

arrived at the hospital to check on Marco and speak with family and friends about a possible

child-abuse situation. Doctor Christine Fortin provided the detectives with her initial report,

which explained that Marco was in critical condition and that the nature of the injuries suggested

evidence of child abuse. Shortly thereafter, Det. Cardone and Det. Slaughter administered a

second rights form to Oliver and presented her with a “consent to search form” for the LG cell

phone, which she signed.

Despite the best efforts of both the rescue and medical personnel, at 5:05 p.m., Marco

succumbed to his injuries and died. At 6 p.m., Det. Cardone took a second, more detailed

- 10 -
written statement from Oliver concerning the events that had taken place on October 3, 2009.

Although the timeline regarding Marco’s deteriorating physical condition was basically the same

as in her first written statement, this statement had particular focus on defendant’s involvement

with the situation. For instance, Oliver said that she asked defendant what happened and

“[defendant] said Marco was ‘acting stupid and I hit him.’” This latter statement also included

information about her strained relationship with defendant, specifically that she was “afraid of

[defendant] because in the past his temper gets * * * out of control. He throws things and

sometimes [gets] [physical] with me.”

D

The Warrants

Throughout the course of the investigation into Marco’s death, the Cranston police

obtained more than a dozen search warrants, several of which yielded text messages that

incriminated defendant. Members of the Cranston Police Department began seeking various

search warrants as early as the morning of October 4, 2009, up through the time of the at-issue

suppression hearing in August 2012. The various warrants allowed for the search and seizure of

evidence at the scene, the contents of various cell phones, and the records of the service

providers of the cell phones.

The hearing justice was troubled by the “inconsistencies and uncertainties” surrounding

particular information contained in the various affidavits in support of search warrants presented

throughout the investigation. Likewise, the hearing justice was troubled by the various officers’

testimonies, in that, in her estimation, “[they] knew more about this examination than they were

willing to divulge [at the suppression hearing].” However, due to the length and density of the

at-issue warrants and affidavits, we will not needlessly recount the challenged statements

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contained in the warrant affidavits; rather, the relevant facts pertaining to defendant’s warrant

challenges will be addressed as necessary, infra.

E

Procedural History

On April 2, 2010, defendant was indicted on a single count of first-degree murder 13 for

the death of Marco Nieves. Prior to trial, defendant filed motions in limine to exclude text

messages, including those sent by and to Trisha Oliver. In addition, defendant filed eight

motions to suppress evidence that had been seized during the course of the October 4, 2009

investigation, as well as all the information seized from the different cell phones, on the grounds

that the collection of such evidence violated his rights against unreasonable searches and seizures

in violation of the Fourth Amendment to the United States Constitution and article 1, sections 6

and 13 of the Rhode Island Constitution.14 The defendant also argued that his videotaped and

written statements taken on October 4, 2009, resulted from coercive and threatening police

tactics, and thus were made involuntarily in violation of his due process rights under the United

States and Rhode Island Constitutions.

On June 18, 2012, the Superior Court embarked on a multi-week series of evidentiary

hearings to address the issues raised by defendant in his pretrial motions. On June 29, 2012,

after the start of the evidentiary hearing, defendant filed an amended motion seeking a Franks

hearing, arguing that the evidence adduced at the suppression hearing indicated that members of

13
G.L. 1956 § 11-23-1.
14
Specifically, defendant filed motions to suppress: (1) evidence seized on or about October 4,
2009; (2) all information seized from defendant’s T-Mobile phone; (3) all information seized
from Oliver’s LG phone; (4) all information seized from Marco’s biological father, Rafael
Nieves’s phone; (5) all information seized from defendant’s friend, Mario Palacio’s phone; (6)
all information seized from Oliver’s landline phone; (7) the 8mm videotape of the crime scene;
and (8) all information seized from the Metro PCS phone.
- 12 -
the Cranston Police Department made numerous material misrepresentations in their affidavits to

obtain warrants throughout the course of the investigation.

On September 4, 2012, the hearing justice rendered a one-hundred-ninety page decision

and an order granting defendant’s motions to suppress the evidence seized at the scene and all

information seized from the various cell phones, including all of the text message evidence. The

hearing justice denied defendant’s motion to suppress the videotape of the crime scene. In

granting virtually all of defendant’s motions to suppress, the hearing justice made comprehensive

findings with respect to defendant’s constitutional claims.

First, with respect to standing, the hearing justice found that “[d]efendant has a

reasonable expectation of privacy in his alleged text messages,” so as to confer upon him

standing to challenge the police search that led to the discovery of the text messages. The

hearing justice also found that “people have a reasonable expectation of privacy in the contents

of their text messages with no distinction between whether the messages were sent or received

by them,” and “that the third-party doctrine should not apply to diminish the expectation of

privacy in the contents of electronic communications.” The hearing justice also found that, as a

frequent overnight guest, defendant had standing to challenge the search and seizure of evidence

in Oliver’s apartment.

Second, the hearing justice found that Sgt. Kite’s action of viewing the text messages on

the LG phone during the initial stages of the October 4, 2009 sweep of Oliver’s apartment did

not fall within the exigent circumstances, plain view, or consent exceptions to the warrant

requirement, and therefore constituted an unreasonable search. The hearing justice also found

that the searches and seizures by the police of all the cell phones in evidence, as well as the

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photographs taken of the contents thereof, were either “illegal as warrantless or in excess of the

warrants obtained,” and, thus, were also unreasonable in violation of the Fourth Amendment.

Finally, the hearing justice found that “almost all the evidence the Cranston Police

Department obtained during the course of its investigation into the death of Marco Nieves was

‘tainted’ by the illegal search made by Sgt. Kite or the other illegal searches and seizures of cell

phones and their contents,” and was thereby inadmissible at trial as fruit of the poisonous tree. 15

In regard to defendant’s Franks motion, the hearing justice found that there existed

sufficient evidence in the record to “find that [d]efendant made a preliminary showing that the

affidavits for the warrants do contain certain false statements, as specifically identified by

[d]efendant, that were deliberate or made in reckless disregard of the truth.” Despite these

preliminary findings, however, the hearing justice reserved decision as to whether defendant was

entitled to a Franks hearing, “subject to further argument as to standing and probable cause.”

On September 12, 2012, the state timely appealed the hearing justice’s decision. That

same day, the hearing justice entered an order that the ongoing trial proceedings relative to the

Franks motion were not to be stayed by operation of law or in the discretion of the hearing

justice, and that, absent a stay by this Court, the proceedings were to continue forthwith.

15
Specifically, the hearing justice excluded from use at trial the following pieces of evidence: (1)
the LG phone; (2) the Metro PCS phone; (3) the iPhone; (4) the landline phone; (5) the T-Mobile
phone; (6) the photographs of the contents of the LG phone taken at Oliver’s apartment; (7) the
photographs of the contents of the LG phone taken at police headquarters; (8) the photographs of
the contents of the Metro PCS phone; (9) the photographs of the contents of the T-Mobile phone;
(10) the contents of the LG phone extracted by use of the Cellebrite software; (11) the phone
records and communications of defendant provided by T-Mobile; (12) the phone records and
communications of Mario Palacio provided by T-Mobile; (13) the phone records and
communications of Oliver provided by Verizon; (14) the phone records and communications of
Rafael Nieves provided by Sprint Nextel; (15) the phone records and communications of
defendant’s sister, Angie Patino, provided by Sprint Nextel; (16) the landline phone records for
the apartment provided by Cox Communications; (17) certain portions of defendant’s
interrogation as memorialized on videotape and in a written transcript; and (18) defendant’s
confession regarding the death of Marco Nieves.
- 14 -
Thereafter, the state filed with this Court a motion to compel compliance with § 9-24-33 to stay

the Franks proceedings in the Superior Court until after resolution of the other issues on appeal.

On September 25, 2012, this Court granted the state’s motion, 16 determining that “because § 9-

24-33 provides for a stay of any further proceedings with respect to those findings pending the

State’s appeal, all further proceedings are stayed until further Order of this Court.”

II

Standard of Review

“When reviewing a trial justice’s decision granting or denying a motion to suppress, we

defer to the factual findings of the trial justice, applying a clearly erroneous standard.” State v.

Cosme, 57 A.3d 295, 299 (R.I. 2012) (quoting State v. Storey, 8 A.3d 454, 459-60 (R.I. 2010)).

“With respect to questions of law and mixed questions of law and fact involving constitutional

issues, however, this Court engages in a de novo review in accordance with Ornelas v. United

States, 517 U.S. 690 * * * [(1996)].” 17 State v. Linde, 876 A.2d 1115, 1124 (R.I. 2005) (quoting

State v. Apalakis, 797 A.2d 440, 443 (R.I. 2002)).

This Court reviews a hearing justice’s determination of a defendant’s right to a Franks

hearing with deference. State v. Verrecchia, 880 A.2d 89, 99 (R.I. 2005); see State v.

DeMagistris, 714 A.2d 567, 576 (R.I. 1998) (“[W]e review a lower court’s determination that the

defendant failed to satisfy the Franks standard with deference.”). 18

16
Justice Indeglia dissented.
17
In Ornelas v. United States, 517 U.S. 690, 699 (1996), the Supreme Court held that
“determinations of reasonable suspicion and probable cause should be reviewed de novo on
appeal,” however, “[reviewing courts] should take care both to review findings of historical fact
only for clear error and to give due weight to inferences drawn from those facts by resident
judges.”
18
Although this Court is always deferential to a hearing justice’s determination of whether a
Franks hearing is appropriate, the specific standard has not always been consistent. Compare,
- 15 -
 III

Analysis

The Fourth Amendment to the United States Constitution and violations thereof are

predicated upon one’s reasonable expectation of privacy. Smith v. Maryland, 442 U.S. 735, 740

(1979). Before delving into the question of what is “reasonable” in this day and age of rapidly

evolving technology, however, it may be useful to provide an initial framework with respect to

how, and for what purpose, the Fourth Amendment operates.

The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized.” 19

The purpose of the Fourth Amendment, as well as its Rhode Island counterpart, is to

“guarantee[] the privacy, dignity, and security of persons against certain arbitrary and invasive

acts by officers of the Government * * * .” Skinner v. Railway Labor Executives’ Association,

489 U.S. 602, 613-14 (1989).

In order to avoid such arbitrary and inconsistent enforcement of Fourth Amendment

principles, “the application of the Fourth Amendment depends on whether the person invoking

its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that

has been invaded by government action.” Smith, 442 U.S. at 740. Put another way, “a Fourth

Amendment search occurs when the government violates a subjective expectation of privacy that

State v. Demasi, 452 A.2d 1150, 1153 (R.I. 1982) (applying clearly erroneous standard) with
State v. McGoff, 517 A.2d 232, 237 (R.I. 1986) (applying abuse of discretion standard).
19
The provision of the Rhode Island Constitution protecting against illegal searches and seizures
is virtually identical to the United States Constitution. See R.I. Const. art. 1, sec. 6.
- 16 -
society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). The question

of whether a search and seizure is unreasonable under the Fourth Amendment is based on the

totality of the facts and circumstances of each case. Cooper v. California, 386 U.S. 58, 59 (1967).

A

Standing

It is well settled that “‘Fourth Amendment rights are personal rights’ and cannot be

‘asserted vicariously by a defendant merely because he or she may be aggrieved by the

introduction of damaging evidence.’” State v. Quinlan, 921 A.2d 96, 109 (R.I. 2007) (quoting

State v. Bertram, 591 A.2d 14, 18 (R.I. 1991)); see Rakas v. Illinois, 439 U.S. 128, 133 (1978).

“A person who is aggrieved by an illegal search and seizure only through the introduction of

damaging evidence secured by a search of a third person’s premises or property has not had any

of his [or her] Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134. Therefore, in order

to successfully invoke the protections of the Fourth Amendment, as a threshold matter, a

“defendant bears the burden of establishing the requisite standing to challenge the legality of the

search.” Quinlan, 921 A.2d at 109.

“A party has standing when he or she is found to have a reasonable expectation of

privacy in the area searched or the thing seized.” Quinlan, 921 A.2d at 109; see Katz v. United

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). “In Rhode Island, ‘we employ a two-

step process to determine from the record whether a legitimate expectation of privacy sufficient

to invoke Fourth Amendment protection exists.’” State v. Briggs, 756 A.2d 731, 741 (R.I. 2000)

(quoting State v. Jimenez, 729 A.2d 693, 696 (R.I. 1999)); see Katz, 389 U.S. at 361. “First we

determine whether the defendant ‘exhibited an actual (subjective) expectation of privacy’ and if

that expectation is established, then we consider ‘whether, viewed objectively,’ the defendant’s

- 17 -
expectation was reasonable under the circumstances.” Briggs, 756 A.2d at 741 (quoting Jimenez,

729 A.2d at 696); see Katz, 389 U.S. at 361. “Usually, the second part of the test, i.e., whether

the asserted expectation of privacy was objectively reasonable, is the most disputed.” Briggs, 756

A.2d at 741 (quoting Commonwealth v. Krisco Corp., 653 N.E.2d 579, 582 (Mass. 1995)).

When deciding whether the expectation of privacy is objectively reasonable, “no single

factor invariably will be determinative.” Quinlan, 921 A.2d at 109 (quoting State v. Casas, 900

A.2d 1120, 1129-30 (R.I. 2006)); see Rakas, 439 U.S. at 152. In the past, this Court has looked

to several factors to determine objective reasonableness, including: “whether the suspect

possessed or owned the area searched or the property seized; his or her prior use of the area

searched or the property seized; the person’s ability to control or exclude others’ use of the

property; and the person’s legitimate presence in the area searched.” State v. Verrecchia, 766

A.2d 377, 382 (R.I. 2001).

In addition to examining the aforementioned, case-specific factors to determine

reasonableness, courts also look backwards to history, see Rakas, 439 U.S. at 153 (“The Court on

occasion also has looked to history to discern whether certain types of government intrusion

were perceived to be objectionable by the Framers of the Fourth Amendment”), as well as

forward, considering modern technological developments. See United States v. Jones, 132 S.Ct.

945, 962 (2012) (Alito, J., concurring) (“[T]echnology can change those expectations [of

privacy]. Dramatic technological change may lead to periods in which popular expectations are

in flux and may ultimately produce significant changes in popular attitudes.”); City of Ontario,

California v. Quon, 560 U.S. 746, 748 (2010) (acknowledging that “[r]apid changes in the

dynamics of communication and information transmission are evident not just in the technology

itself but in what society accepts as proper behavior”).

- 18 -
 In the case under review, the hearing justice made numerous findings with respect to

defendant’s standing to challenge the various searches and seizures by the Cranston Police

Department. For instance, she found that “[d]efendant presented substantial evidence to

establish that he had a reasonable expectation of privacy in [Oliver’s] apartment,” which was

“sufficient to confer upon him the standing required for him to challenge its search and the

seizure of items found there.” The hearing justice also found that defendant had standing to

challenge the search and seizure of the contents of his text message conversations with Oliver,

stored in her LG phone. She reached this decision by rejecting the analogy of a cell phone to a

“closed container,” finding that defendant’s standing “does not * * * rise and fall based on his

interest in the LG cell phone.” 20 She then undertook the two-tiered inquiry and found that

defendant exhibited a subjective expectation of privacy in the content of his text messages and

that “it is objectively reasonable for people to expect the contents of their electronic text

messages to remain private.”

In determining that defendant’s expectation of privacy in his sent and received text

messages was objectively reasonable, the hearing justice embarked on an extensive analysis in

which she examined the increasing role that cell phones and text messages play in modern

society. In addition, she rejected the comparison of text messaging to other similar forms of

communication, such as telephone conversations and email exchanges, and determined that text

messages “are a technological and functional hybrid,” and thus, she “[would] not strain * * * to

apply existing law based on imperfect analogies.” Although she likened text messaging to oral

communication based on their similar back-and-forth nature, she acknowledged that the analogy

20
The hearing justice noted that, if standing in the LG phone were predicated on the actual
device, as opposed to the content of the text messages, she “would be constrained to conclude
that [d]efendant ha[d] failed to demonstrate a sufficient privacy interest in the LG cell phone to
establish standing in the device itself.”
- 19 -
is not perfect, and that “text messages are more vulnerable to discovery than oral

communications, which in itself may cause individuals to have less of a subjective expectation of

privacy in the content of those communications.” Despite the admittedly diminished expectation

of privacy, she nevertheless found that “a person has a reasonable expectation of privacy in the

contents of his or her text messages.” She therefore held that “[d]efendant possesse[d] standing

to challenge the actions of the Cranston Police Department in searching the LG cell phone and

viewing his alleged text messages to and those messages from Trisha Oliver.”

The state argues that defendant does not have standing to challenge the search of Oliver’s

LG phone and, further, that defendant cannot claim standing in the phone merely because Oliver

had used it to exchange text messages with him. The defendant, on the other hand, argues that

people have an objectively reasonable expectation of privacy in the content of their text

messages. However, the crux of defendant’s argument on appeal is not defendant’s standing in

the text messages, but rather his standing, by virtue of his frequent overnight stays, to challenge

the warrantless search of Oliver’s apartment. In that vein, defendant argues that Sgt. Kite was

not lawfully in the apartment when he searched the LG phone and that, therefore, all the

evidence seized as a result of that unlawful search should be excluded at trial.

Before addressing the expectation of privacy in the text message communications, we

first dispel defendant’s contention that, because he has standing to challenge the search of

Oliver’s apartment, everything seized without a warrant is subject to suppression as violative of

his Fourth Amendment rights. Although the evidence adduced at the hearing below indicates,

and the state does not contest, that defendant, as a frequent overnight guest at Oliver’s apartment,

did have a reasonable expectation of privacy in her apartment, this does not end our inquiry. See

Minnesota v. Olson, 495 U.S. 91, 96-97 (1990). In order to raise a Fourth Amendment

- 20 -
challenge, it is not sufficient that a defendant merely have standing in the area searched; he must

also have an expectation of privacy in the item seized. See United States v. Haqq, 278 F.3d 44,

50 (2nd Cir. 2002) (“when considering the legality of a search of an object within a home, courts

have properly focused on the defendant’s expectation of privacy in the object apart from his

expectation of privacy in the home”); United States v. Garcia-Rosa, 876 F.2d 209, 219-20 (1st

Cir. 1989) (homeowner lacked a reasonable expectation of privacy in a box located in his wife’s

dresser where he claimed no interest in the box or its contents); Wayne R. LaFave et. al.,

Criminal Procedure § 9.1(b) n.51 at 389 (3d ed. 2007) (“A person in possession of premises has

standing with regard to a search of those premises and also a seizure of the objects therein, * * *

but does not also have standing as to the search of a container belonging to another in the

premises.”). We therefore must determine if defendant had a reasonable expectation of privacy

in the items searched and seized; specifically, the LG phone and the text messages evidenced

therein.

Moreover, we reject defendant’s contention that “[Sgt.] Kite’s presence in the home when

he searched the LG cell phone * * * at approximately 7:15 a.m., forty-five minutes after the tour

with Trish[a] Oliver and nearly an hour after the minor left, was unconstitutional.” The

circumstances of the case were that the Cranston police had responded to a 9-1-1 call for a

medical emergency. Upon arriving at the scene they encountered an unresponsive child and

obvious signs of nauseous distress. After the child and Oliver left for the hospital, there still

remained a second young child (Jazlyn) and defendant, who was not a tenant of the apartment. It

is our opinion that, under these circumstances, an hour was not an unreasonable amount of time

for Sgt. Kite and other police officers to remain on the scene. To the extent that the trial justice

- 21 -
found that the police were not lawfully in the apartment after Marco and Oliver had been

transported to the hospital, it is our opinion that her finding was clear error.

1. Expectation of Privacy in Text Messages

Although text messaging has enjoyed a precipitous rise in usage and popularity, it is still

a relatively new phenomenon and, as is often the case with new technology, courts may struggle

to adapt existing legal principles to new realities. It is often not easy to pour new wine into old

wineskins, yet wise stewardship might suggest the use of the old skins until they burst. So too,

legal principles and rules of law developed in the context of more antediluvian forms of

communication may provide useful guidance for our analysis of the issues presented in this case.

As this Court has previously recognized, “the evolution of the common law should occur

gradually, predictably, and incrementally.” State v. Lead Industries Association, Inc., 951 A.2d

428, 454 (R.I. 2008). The central question confronting us in this case is relatively narrow, viz.,

whether a person has a reasonable expectation of privacy in his or her text messages stored in a

cell phone belonging to, or possessed by, another person. Because it is an issue of first

impression in this state, we will look to other jurisdictions, as well as our own jurisprudence, to

determine whether that particular expectation of privacy is one that society is willing to

recognize as objectively reasonable.

Several courts throughout the country have recently opined as to whether a person has an

objectively reasonable expectation of privacy in his or her text messages. These courts, much

like the hearing justice in the instant case, have drawn parallels between text messages and other

forms of communication to aid in their ultimate determination. See, e.g., United States v. Zavala,

541 F.3d 562, 577 (5th Cir. 2008) (comparing a cell phone to a personal computer carried on

one’s person); State v. Clampitt, 364 S.W.3d 605, 611 (Mo. Ct. App. 2012) (analogizing text

- 22 -
messages to email); State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009) (rejecting a comparison to

address books or laptops because, “[g]iven their unique nature as multifunctional tools, cell

phones defy easy categorization”); State v. Hinton, 319 P.3d 9, 14 (Wash. 2014) (although

decided on state constitutional grounds, the court stated that “[w]hile text messages have much in

common with phone calls and letters, they are a unique form of communication, and we will not

strain to apply analogies where they do not fit”).

Although courts have ultimately reached different conclusions on whether there exists a

reasonable expectation of privacy in text messages, the determinations have most often turned on

whether the defendant owned or was the primary user of the cell phone. See, e.g., United States

v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) (holding that the defendant had a reasonable

expectation of privacy in a cell phone because, inter alia, he “maintained a property interest in

the phone, [and] had a right to exclude others from using the phone”); United States v. Jones,

149 F.App’x 954, 959 (11th Cir. 2005) (holding that the defendant did not have a reasonable

expectation of privacy in his sent text messages contained on his coconspirator’s cell phone);

United States v. Davis, 787 F.Supp.2d 1165, 1170 (D. Or. 2011) (holding that the defendant had

“a reasonable expectation of privacy in his or her personal cell phone, including call records and

text messages”); State v. Boyd, 992 A.2d 1071, 1081 (Conn. 2010) (holding that because the

defendant “owned the cell phone and exercised exclusive control over it * * * he had a

reasonable expectation of privacy in the cell phone”); State v. Bone, 107 So.3d 49, 66 (La. Ct.

App. 2012) (holding that the defendant, as “the exclusive user of the cell phone” had “a

reasonable expectation of privacy in the text messages sent and received on the cell phone”);

Clampitt, 364 S.W.3d at 611 (holding that the defendant had a reasonable expectation of privacy

- 23 -
in the text messages and other information contained in his phone, notwithstanding the fact that

the information was disclosed to a third-party cell service provider).

In determining whether a person has an expectation of privacy in his text messages, the

most important factor, in our opinion, is from whose phone the messages are accessed.

Underlying this consideration is the element of control; that is to say, when the recipient receives

the message, the sender relinquishes control over what becomes of that message on the

recipient’s phone. The idea of control has been central to our prior determinations of whether an

individual has an objectively reasonable expectation of privacy so as to confer standing to raise a

Fourth Amendment challenge. See Verrecchia, 766 A.2d at 382 (factoring, inter alia, whether

suspect possessed or owned the property seized; and, his or her ability to control or exclude

others). The United States Supreme Court has likewise considered control as a factor when

determining whether a defendant has a reasonable expectation of privacy in a given place or

item. See, e.g., Rakas, 439 U.S. at 154 (noting the distinction “between the Fourth Amendment

rights of passengers and the rights of an individual who has exclusive control of an automobile or

of its locked compartments”) (emphasis added). Additionally, the Supreme Court has

determined that, “when an individual reveals private information to another,” a reasonable

expectation of privacy no longer exists because “he assumes the risk that his confidant will

reveal that information to the authorities.” United States v. Jacobsen, 466 U.S. 109, 117 (1984);

see United States v. Miller, 425 U.S. 435, 443 (1976).

Implicit in the risk inherent in the disclosure of information to another party is the

relinquishment of control, i.e., the sender can no longer control what the recipient does with the

message. See, e.g., United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995) (“the sender’s

expectation of privacy ordinarily terminates upon delivery * * * even though the sender may

- 24 -
have instructed the recipient to keep the letters private”); United States v. Maxwell, 45 M.J. 406,

418 (C.A.A.F. 1996) (although a sender of an email enjoys a reasonable expectation of privacy,

“once the transmissions are received by another person, the transmitter no longer controls its

destiny”). Because the recipient now shares full control of whether to share or disseminate the

sender’s message, the sender, to be sure, no longer enjoys a reasonable expectation of privacy in

the digital copy of the message contained on the recipient’s device. 21 With these considerations

in mind, we turn to the facts of the instant case to determine whether defendant had standing to

raise a Fourth Amendment challenge.

It is clear to us that the cell phone of primary concern in this case, the LG phone, was

used exclusively by Trisha Oliver. The defendant exhibited no dominion or control, nor did he

attempt to exclude others from accessing the phone. This is evinced by the facts that he made no

motion towards the phone in response to the message alert, did not attempt to prevent Sgt. Kite

from accessing the contents of the phone, and did not bring the phone with him when he

accompanied Officer Machado to the police station. In fact, defendant’s only connection to the

LG phone is the fact that a digital copy of the messages he sent from his T-Mobile phone existed

on the LG phone. Having already sent the incriminating text messages, which were indeed

delivered to Oliver’s LG phone, defendant no longer had any control over what became of the

messages contained in that phone. The defendant’s lack of control over who could view or

access the text messages is underscored by the fact that Oliver signed a consent form allowing

the Cranston police officers to search her phone, albeit after they had already viewed the

incriminating messages. Therefore, in light of the considerations and rationale enunciated above,

21
We can think of no media more susceptible to sharing or dissemination than a digital message,
such as a text message or email, which vests in the recipient a digital copy of the message that
can be forwarded to or shared with others at the mere click of a button.
- 25 -
it is our considered opinion that defendant did not have an objectively reasonable expectation of

privacy in any text messages contained in Trisha Oliver’s LG phone, whether sent by defendant,

sent to defendant, or otherwise. It necessarily follows that, having no reasonable expectation of

privacy in the LG phone or the messages contained therein, defendant did not have standing to

challenge the search and seizure thereof.

When recently confronted with facts similar to the instant case, i.e., privacy expectations

of text messages contained on the phone of another, the Washington Supreme Court did not

reach the issue of expectation of privacy in the Fourth Amendment context, opting instead to

decide the case on independent state constitutional grounds. Hinton, 319 P.3d at 11, 14. We

agree wholeheartedly with the dissent in that case, however, which, in arguing that the defendant

lacked standing to challenge the search, stated that:

“[The sender] did not have a reasonable expectation of privacy in
[the recipient’s] cell phone. He had neither possession nor control
of the cell phone, and he did not have the right to exclude others
from using it. Furthermore, once the text message was delivered to
[the recipient’s] cell phone, [the sender] had no control over who
viewed it. * * * [The recipient] could have simply shared the
contents of the message with others. [The sender] assumed the risk
that, once sent, the message would no longer be kept private.” Id.
at 22 (Johnson, J., dissenting).

We hold, therefore, that defendant’s reasonable expectation of privacy in the text

messages contained in Oliver’s phone, whether sent from or received by that phone, does not

extend to the messages contained on another’s phone, despite the fact that there exists an

identical copy of the messages on the challenger’s phone. 22 As iterated above, this is chiefly due

to control; a cell phone user retains control over what becomes of the content on his or her

22
Because defendant was not under arrest when he relinquished his phone at the Cranston police
headquarters, we save for another day the issue of whether one’s personal cell phone can be
subject to a warrantless search incident to a valid arrest.
- 26 -
phone, but entirely loses control of the messages contained on the phone of another. When

applied to the case at hand, therefore, we conclude that defendant had no reasonable expectation

of privacy, and thus no standing to challenge the search and seizure of Oliver’s LG phone, its

contents, and all derivatives therefrom. 23

We vacate, therefore, the September 12, 2012 order of the Superior Court insofar as it

excludes from evidence “the LG cell phone”; “the pictures of the contents of the LG cell phone

taken at Trisha Oliver’s apartment”; “the pictures of the contents of the LG cell phone taken at

Cranston Police Department headquarters”; “the Cellebrite extraction report for the LG cell

phone”; and “the phone records and communications of Trisha Oliver provided by Verizon.”

We further vacate the order insofar as it excludes from trial evidence that the hearing

justice found to be “tainted” as fruits of the poisonous tree. 24 Such evidence consists of “the

phone records and communications of Mario Palacio provided by T-Mobile”; “the phone records

and communications of Angie Patino provided by Sprint Nextel”; and “the landline phone

records for Trisha Oliver’s apartment provided by Cox Communications.”

B

The T-Mobile and Metro PCS Cell Phones

The hearing justice made several damaging findings with respect to the legality of the

searches and seizures of all four cell phones discovered in Oliver’s apartment. She reasoned that

the police “focused on the cell phones and text messages at the earliest stages of the investigation

and well before they sought or obtained the first search warrant for the apartment.” She

23
This includes the photographs of the contents of the LG phone taken at the police station and
at Trisha Oliver’s apartment; the Cellebrite extraction report from the phone; and the records of
the phone obtained from Verizon.
24
The fruit of the poisonous tree doctrine dictates that “physical, tangible materials obtained
either during or as a direct result of an unlawful invasion” are traditionally excluded from use at
trial. Wong Sun v. United States, 371 U.S. 471, 485 (1963).
- 27 -
explained that “the abysmal handling of the evidence by the police in this case—specifically the

critical cell phones at issue—play[ed] into [her] view that the police seized and searched all of

these cell phones without a warrant.” She thus concluded that the Cranston Police Department

“engaged in an illegal warrantless search and seizure of all of the phones in evidence and the

contents of those phones, including the LG cell phone, the Metro PCS cell phone, the T-Mobile

cell phone, the iPhone, and the [landline], in violation of [d]efendant’s rights under the Fourth

Amendment.” 25

The state concedes that defendant had standing with respect to his own cell phones—the

T-Mobile and Metro PCS phones—but it appeals the hearing justice’s decision concerning said

phones only with respect to defendant’s challenge under Franks v. Delaware, 438 U.S. 154

(1978), arguing that “[t]he relevant affidavits were more than sufficient to establish probable

cause, even with the removal of the materials identified by the hearing justice.” We first note

that, with respect to the Franks challenges, the hearing justice determined only that defendant

had made a substantial preliminary showing that the warrant applications contained materially

false statements. Thus, the sufficiency of any additional evidence establishing probable cause

has not been determined.

With respect to the legality of the searches and seizures, however, the state raises only a

cursory challenge to the hearing justice’s finding as it pertains to the T-Mobile and Metro PCS

cell phones. We have often stated that “[s]imply stating an issue for appellate review, without a

meaningful discussion thereof or legal briefing of the issues, does not assist the Court in focusing

on the legal questions raised, and therefore constitutes a waiver of that issue.” State v. Chase, 9

A.3d 1248, 1256 (R.I. 2010) (quoting Wilkinson v. State Crime Laboratory Commission, 788

25
As described in Part III, Section A(1), supra, we vacate the order granting defendant’s motions
to suppress as it pertains to the LG phone and the landline.
- 28 -
A.2d 1129, 1131 n.1 (R.I. 2002)); see Article I, Rule 16(a) of the Supreme Court Rules of

Appellate Procedure (“Errors not claimed, questions not raised and points not made ordinarily

will be treated as waived and not be considered by the Court.”). Because the state does not

meaningfully contest the hearing justice’s findings regarding the T-Mobile and Metro PCS cell

phones, we consider the issue waived. 26 Accordingly, we affirm the Superior Court order

suppressing evidence of “the Metro PCS phone,” “the iPhone,” “the T-Mobile cell phone,” and

“the pictures of the contents of the Metro PCS [and T-Mobile] cell phone[s].”

C

Franks Determination

Having made our determinations regarding defendant’s standing to challenge the various

items of evidence, as well as the legality of the searches, we address briefly the hearing justice’s

Franks determinations. In Franks, the United States Supreme Court established a procedure for

challenging warrants alleged to have been obtained through the use of affidavits containing

“false statement[s] made knowingly and intentionally, or with reckless disregard for the truth.”

Franks, 438 U.S. at 155-56; see Verrecchia, 880 A.2d at 99. Franks established a procedure

under which a defendant may challenge the veracity of factual statements made in affidavits

supporting the issuance of Fourth Amendment search warrants. Before a hearing is required,

however, the defendant must vault over two hurdles. First, he must make a “substantial

preliminary showing that a false statement [was made] knowingly and intentionally, or with

reckless disregard for the truth * * * .” Franks, 438 U.S. at 155. Secondly, the defendant must

26
It is unclear to us who owned the iPhone at issue. Similar to the T-Mobile and Metro PCS cell
phones, however, the state failed to raise a meaningful argument challenging the hearing
justice’s order suppressing its admission into evidence at trial.
- 29 -
show that the allegedly false statement is necessary to the finding of probable cause. Id. at 156.

Only then is the defendant entitled to a Franks hearing.

Moreover, because a Franks hearing concerns the Fourth Amendment warrant

requirement, in order to raise a Franks challenge, a defendant must establish standing in the area

or items sought to be searched and seized by the challenged warrant. See Rakas, 439 U.S. at 133-

34; Quinlan, 921 A.2d at 109; e.g., United States v. Mastromatteo, 538 F.3d 535, 544 (6th Cir.

2008) (“Determining that a defendant has Fourth Amendment standing is a prerequisite to

granting a motion for a Franks hearing.”). We review a court’s Franks determination with

deference. Verrecchia, 880 A.2d at 99.

On appeal, the state raises two challenges with respect to the hearing justice’s Franks

determinations. First, the state argues that, “except with respect to defendant’s own phones, he

has no standing to make a Franks challenge.” Second, the state avers that “[b]ecause, with

respect to his own phones, the relevant affidavits were more than sufficient to establish probable

cause, even with the removal of the materials identified by the hearing justice, the lower court’s

Franks determinations cannot stand.” We need not address either contention.

In light of our prior determinations on standing, discussed supra, we agree with the state

and hold that defendant, who lacked a reasonable expectation of privacy in the items sought by

several of the warrants, 27 did not have standing to raise a Franks challenge to those warrants.

We therefore need not address the hearing justice’s preliminary findings with respect to those

warrants. Furthermore, because, as discussed supra, we uphold the hearing justice’s findings that

27
The defendant has not satisfied his burden of establishing standing to challenge the following
warrants: an October 4, 2009 warrant to search the LG phone; three October 6, 2009 warrants
seeking the phone records of, respectively, Mario Palacio, Trisha Oliver, and Rafael Nieves; and
two October 8, 2009 warrants seeking records of, respectively, Angie Patino’s cell phone and
Trisha Oliver’s apartment landline phone.
- 30 -
the Metro PCS cell phone, the T-Mobile phone, and the iPhone were searched and seized

illegally, the state is precluded from introducing those items at trial, rendering moot defendant’s

challenges to the warrants seeking those items and their derivatives.

To the extent that any of the warrants yet have vitality, we perceive no basis to disturb the

hearing justice’s finding that the defendant has made a substantial preliminary showing that the

warrant affidavits contain certain false statements that were deliberate or made in reckless

disregard for the truth. We caution, however, that, before a Franks hearing is warranted, the

Superior Court must still determine whether, after disregarding the allegedly false statements,

there remain sufficiently reliable allegations in the affidavit to establish probable cause.

IV

Conclusion

For the reasons set forth in this opinion, we affirm in part and vacate in part the order of

the Superior Court. Specifically, we vacate the September 12, 2012 order insofar as it

suppressed the following evidence: “(1) the LG cell phone”; “(5) the apartment landline phone”;

“(6) the pictures of the contents of the LG cell phone taken at Trisha Oliver’s apartment”; “(7)

the pictures of the contents of the LG cell phone taken at Cranston Police Department

headquarters”; “(10) the Cellebrite extraction report for the LG cell phone”; “(12) the phone

records and communications of Mario Palacio provided by T-Mobile”; “(13) the phone records

and communications of Trisha Oliver provided by Verizon”; “(14) the phone records and

communications of Rafael Nieves provided by Sprint Nextel”; “(15) the phone records and

communications of Angie Patino provided by Sprint Nextel”; and “(16) the landline phone

records for Trisha Oliver’s apartment provided by Cox Communications.” We affirm the order

- 31 -
in all other respects. The record shall be remanded to the Superior Court for further proceedings

consistent with this opinion.

- 32 -
 RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: State v. Michael Patino

CASE NO: No. 2012-263-C.A.
(P1/10-1155A)

COURT: Supreme Court

DATE OPINION FILED: June 20, 2014

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY: Chief Justice Paul A. Suttell

SOURCE OF APPEAL: Providence County Superior Court

JUDGE FROM LOWER COURT:

Associate Justice Judith C. Savage

ATTORNEYS ON APPEAL:

For State: Aaron L. Weisman
Department of Attorney General

For Defendant: George J. West, Esq.