State Supreme Court Rules Cell Phone Evidence Can be Used Against Accused Child Killer

Cranston Police detectives and the state Attorney General are celebrating after the Rhode Island Supreme Court on Friday overturned a Superior Court judge's decision to throw out crime scene evidence gleaned from cell phone text messages that led to murder charges against Michael Patino, who is accused of beating a Cranston woman's six-year-old boy to death in 2009.

“I am very pleased that the Supreme Court recognized that the defendant lacked any objective expectation of privacy with respect to text messages contained on phones and in records not belonging to him.  As a consequence of this significant legal decision granting us the ability to utilize the defendant’s incriminatory text messages in the prosecution, we can continue to pursue justice for the death of six-year-old Marco Nieves," said Attorney General Peter F. Kilmartin.

Judge Judith Savage in Sept. of 2012 ruled that a mountain of evidence obtained from cell phone text messages between Michael Patino and his live-in girlfriend were not admissible in court after Patino's lawyer's argued that they were part of an illegal search.

The messages, which allegedly show Patino admitting to his girlfriend that he punched the boy, were read by a Cranston officer at the scene after they responded to a report of an unresponsive child.

Though the Supreme Court decision paints a picture of regrettable chain-of-custody issues in regards to how the phone was handled, passing from officer to officer over the course of a day and leaving the crime scene in a paper bag, Patino's claim that messages sent from it were illegally searched and that he had a reasonable expectation to privacy were invalid, the court ruled.

Had the Supreme Court upheld the lower court's decision, the case against Patino would have all but been neutered. Prosecutors intend to show in court how he justified beating the child as a form of discipline before the fatal blows that led to his death as well as him pleading with his girlfriend to help him figure out how to explain the child's injuries without incriminating himself. 

Detectives also were able to get Patino to admit to hitting the child during 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.

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."

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.

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."