Crime & Safety

ACLU Calls for Investigation into Patino Murder Case

Case against 6-year-old's accused murderer was nearly lost after a judge threw out text message evidence, blasting detectives for the illegal search of a cell phone and other acts of "gross negligence."

The Rhode Island chapter of the American Civil Liberties Union is calling upon the Cranston City Council to launch an investigation into the Cranston Police Department's handling of a 2010 investigation into 6-year-old Marco Neives' beating death at the hands of his mother's live-in girlfriend, Michael Patino.

The high-profile case, which is ongoing in Superior Court, was nearly lost before it really started after Judge Judith Savage in Sept. of 2012 ruled that a mountain of evidence gleaned from a phone containing text messages sent by accused murderer Michael Patino must be thrown out because of severe chain of custody issues at the crime scene when an officer picked up and started looking at the phone before police had a search warrant.

The same phone left the scene in a paper bag, was carried in pants pockets throughout the day and was not logged as evidence until hours had gone by as the investigation steamed ahead with knowledge detectives gleaned by what was on it. That, among other issues, reflected an "overall attitude of gross negligence, if not downright recklessness, in blatant disregard of the requirements of the law," Savage wrote.

Now, the ACLU, in a letter to City Council President John E. Lanni Jr., is asking elected leaders to take as much interest in the case as the so-called Ticketgate scandal, which sparked a chain reaction that has led to the departure of a police chief and the State Police takeover of the department.

"We recognize that this criminal case is ongoing, and therefore an investigation into some of the allegations referenced in the court opinions may be premature. But taken in conjunction with the parking ticket scandal, this deserves serious attention, for it suggests a broader pattern of police misconduct that cannot be ignored," wrote Steven Brown, executive director of the RIACLU.

Last month, the Supreme Court overturned parts of Savage's decision in a ruling that similarly blasted the department for their handling of the phone at the same time it allowed incriminating evidence detectives later discovered on the phone of the boy's mother — which received the text messages — to be allowed in court, saving the case from falling apart. To win the case, prosecutors are heavily relying on the messages, in which Patino allegedly pleads with the boy's mother to help him come up with a story after he says "I WENT 2 PUNCH HIM ON HIS BACK AGAIN AND HE MOVED AND I HIT HIM ON HIS STOMACH," among other damning statements.

Those statements helped police get a confession after a lengthy interrogation, but court records show they used knowledge from the text messages to leverage that admission. Had the cell phone evidence been thrown out, so would Patino's reported admission.

Had Savage's ruling fully prevailed, even the contents of the mother's phone would be inadmissible despite her consent to a search because detectives were acting with the knowledge from the contents of the phone used by Patino. The 190 page ruling concludes that the department illegally seized evidence from a cell phone and used information gleaned from text messages during their interrogation of Patino before they had a warrant.

Additionally, the court ruled, the police department's use of the evidence resulted in securing warrants to search the Dyer Avenue apartment that Nieves lived with his mother, "further evidence of the continuing taint in its criminal investigation," Savage wrote. "no other information is provided in the affidavits themselves that would provide probable cause for the search of the contents of the cell phones."

The landmark ruling has been watched closely by legal scholars and police departments around the country as it deals with both the First and Fourth Amendment. In its ruling, the Supreme Court concluded that "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."

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What that means is that a text message is no different than a letter, phone call or other form of familiar communication. And in those cases, the recipient of a message retains ownership of a message, not necessarily the sender — and in the Patino case, the phone used to received the messages, not send them was owned by the girlfriend.

The court did uphold Savage's ruling that Patino's phone was illegally searched, though the Supreme Court decision noted that Patino did little to exercise his claim to privacy in the hours after the incident.

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In fact, at the scene, as the phone was buzzing — which prompted the Cranston officer to pick it up in the first place — Patino "exhibited no dominion or control, nor did he attempt to exclude others from accessing the phone."

He didn't reach for the phone and didn't bring it with him when he accompanied police to the police station for questioning, the ruling notes. 

But that no longer matters due to the fact that the girlfriend consented to a search of her phone by police, and on that phone were the same messages sent by Patino from his phone. 

"A cell phone user retains control over what becomes of the content on his or her 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 [the phone], its contents, and all derivatives therefrom," the ruling stated.

Brown said that while it's easy to look the other way when police "bend the rules" while investigating horrible crimes, "one does so only at the risk that it will promote a culture of indifference to basic civil rights that may show up in myriad other ways. The parking ticket scandal may be an outcome of that indifference."

 


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