Opinion
P1/2022-3059BG
06-14-2023
STATE OF RHODE ISLAND v. ISAIAH PINKERTON
For Plaintiff: Stephen G. Dambruch, Esq. Alison L. Bittl, Esq. For Defendant: Philip Vicini, Esq. Kimberly M. Chiulli, Esq.
Providence County Superior Court
For Plaintiff: Stephen G. Dambruch, Esq. Alison L. Bittl, Esq.
For Defendant: Philip Vicini, Esq. Kimberly M. Chiulli, Esq.
DECISION
KRAUSE, J.
Defendant, Isaiah Pinkerton, along with codefendant Shawn Mann, was charged by a grand jury with murder and multiple other criminal offenses arising out of the August 1, 2021 shooting death of Miya Brophy Baermann on Olney Street in Providence. At the homicide scene several spent cartridge casings were found, but no gun was recovered. Law enforcement investigation did not produce any suspects until the end of the year.
On December 12, 2021, Providence Police Officers Ryan Malloy and Brad McParlin stopped a Hyundai Elantra driven by Justin Lauria. Pinkerton was in the back seat directly behind Lauria, and Mann was a front seat passenger. Very shortly after the stop, Malloy found on a nearby sidewalk a small satchel containing a loaded handgun which Malloy believed had been tossed from the Elantra. All three men were arrested and taken to the Providence Police Station, where a buccal swab was taken from Pinkerton after he had signed a consent form.
Ballistic examination and laboratory analysis revealed that the firearm had been used to kill Brophy Baermann and that Pinkerton's DNA was on the gun and the ammunition magazine. Further investigation disclosed that Pinkerton had used T-Mobile cellphone number (401) 7717836 and that he also had a Facebook account. Search warrants were obtained for the data and materials of both accounts.
Pinkerton has moved to suppress the DNA results and also challenges the probable cause underlying the search warrants.
A hearing on those three suppression motions was held on May 30, 2023, at which Officer Malloy and Providence Detective Theodore Michael, who authored the search warrant affidavits, testified. Pinkerton did not testify.
I. The Buccal Swab
Pinkerton concedes that he lacks standing to contest the stop of the vehicle, but he says that the facts surrounding the motor vehicle stop must be considered because his detention after the stop was impermissibly long, spoiling his arrest and the stationhouse buccal swab, which he also contends was taken without his voluntary consent. The Court disagrees.
The credible evidence discloses that on December 12, 2021, Officers Malloy and McParlin were particularly alert as they patrolled an area of Providence in a marked cruiser where James "Hammer Beanz" Owens, a celebrated Harriet Street gang member, had just been murdered a few hours earlier. The officers' attention was initially drawn to the Elantra because of its heavily tinted windows and the suspicious manner of operation. It came to a sudden stop at an intersection which had no stop sign, a maneuver which, in Malloy's experience, was often employed by a driver hoping to avoid a law enforcement officer's attention. Malloy and McParlin followed the Elantra, which made multiple sharp turns, at least one without a turn signal. Malloy testified that in his experience, such quick turns are frequently made so that a trailing police officer wouldn't see an occupant discard contraband or other items from the car. As they followed the Elantra, the driver also circled a rotary the wrong way.
The officers momentarily lost sight of the Elantra on Niagara Street, just before the Mitchell Street intersection, but Malloy testified that no other car inserted itself between the patrol car and the Elantra and that they quickly picked it up again at Mitchell Street. After activating the cruiser's lights and siren, the Elantra was stopped at about 12:47 a.m.
The officers recognized the three men in the car and knew that they were, as was Hammer Beanz, affiliated with the Harriet Street gang. Malloy also noted that on that cold and rainy December night, Pinkerton's window, oddly, was fully lowered. No other windows in the car were open. Malloy testified that Pinkerton was nervous, breathing heavily, and wouldn't make eye contact. They ordered all of the occupants out of the vehicle and backup officers quickly arrived. Pat-downs were negative, and the men were directed to stand by the cruiser in the presence of the backup officers. None of the men was handcuffed.
Meanwhile, Malloy and McParlin backtracked a short distance on Niagara Street, and, aided by flashlights and streetlights, within only about five minutes, they found a small satchel containing a loaded gun. Malloy testified that although it had been raining heavily all night and that it was still misty with light rain, the satchel was not very wet at all, permitting the clear inference that it had been dropped there very recently. He also testified that the satchel was on the Niagara Street sidewalk closest to the Elantra's driver's side, i.e., the side of the car where Pinkerton was seated with his window fully lowered. Malloy immediately radioed the backup officers to arrest all three men.
Thus, what may have simply begun as a motor vehicle stop for, say, tinted windows or lack of a turn signal, escalated to articulable and reasonable suspicion within minutes and then quickly ripened into probable cause to arrest the men when Malloy found the gun.
All three were transported to the police station, where Detective Theodore Michael, who, over several months, had developed a personal rapport with Pinkerton, interviewed him. Detective Kevin Costa was also present. Pinkerton agrees that he was properly advised of his Miranda rights, understood them, and voluntarily spoke with the detectives. Their conversation, principally led by Detective Michael and all of which was video/audio recorded, largely focused on the Hammer Beanz homicide, but it also included some discussion of the gun found by Malloy. Pinkerton denied any knowledge of it and signed a consent form allowing the police to take the buccal swab which ultimately led to finding his DNA on the weapon and its magazine.
The Court rejects any notion that Pinkerton's detention was impermissibly long. The facts outlined earlier unquestionably describe, in this Court's view, a justifiable reason to have detained Pinkerton and the other Elantra occupants for what had clearly become much more suspicious than a roadway infraction. Indeed, discovery of the weapon occurred within minutes of the stop.
The brief detention of a motorist is permissible if the police can demonstrate reasonable suspicion, i.e. specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the detainment. State v. Bjerke, 697 A.2d 1069, 1071 (R.I. 1997). "The reasonable suspicion standard is not a particularly high threshold to reach," United States v. Bontemps, 977 F.3d 909, 915 (9th Cir. 2020) (internal quotation omitted), and a determination that reasonable suspicion exists need not rule out the possibility of innocent conduct. United States v. Arvizu, 534 U.S. 266, 277 (2002) (citing Illinois v. Wardlow, 528 U.S. 119, 125 (2000)).
Factors, including a series of noncriminal acts which alone do not create a reasonable suspicion, may, when combined, rise to the level of reasonable suspicion when observed as a whole by a trained and experienced law enforcement officer. State v. Abdullah, 730 A.2d 1074, 1077 (R.I. 1999). Some of the factors which may contribute to a finding of reasonable suspicion, and which are present here, include the location in which the conduct occurred, the time at which the incident occurred, suspicious conduct, the demeanor and appearance of the individual, and the personal knowledge and experience of the police officer. Id.; see State v. Foster, 842 A.2d 1047, 1051 (R.I. 2004).
When evaluating the totality of the circumstances through the experienced eyes of a reasonably prudent and veteran police officer, such as Malloy, this Court has no hesitancy at all finding that reasonable, articulable suspicion justified detaining Pinkerton and his associates to examine the situation further. No undue delay was engaged in by the officers. Indeed, in this Court's view, Malloy and McParlin acted with precision and dispatch, and in no way did they transgress Pinkerton's rights, nor run afoul of the admonitions in State v. Casas, 900 A.2d 1120, 1133 (R.I. 2006). In short, they did not commence or embark upon an evidentiary safari in the mere "hope that something might turn up." Id. They knew exactly why and where to look and within minutes found the gun. The stop was lawful, and "[b]ased on the totality of the circumstances [these officers] diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Id.
* * * The only remaining question is whether Pinkerton voluntarily consented to the buccal swab.
A search by the police conducted after receiving valid consent is constitutionally permitted, so long as the state demonstrates by a preponderance of evidence that the consent was freely and voluntarily given. Casas, 900 A.2d at 1134. In State v. Gonzalez, 136 A.3d 1131, 1147 (R.I. 2016), the Court reviewed the principles attendant to the law of consent:
"Consent is [o]ne of the specifically established exceptions to the requirement[] of . . . a warrant .... However, [w]hen seeking to justify a search or seizure on consent grounds, the state must prove that the consent was freely and voluntarily given. In the Fourth Amendment context, the state must prove by a fair preponderance of the
evidence that there was free and voluntary consent. Moreover, we have followed established United States Supreme Court precedent in stating that the question of whether consent was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. Consequently, [n]o single criterion is the determinative factor in deciding whether or not there was free and voluntary consent." (Citations and internal quotations omitted.)
As was pointed out during the hearing, Pinkerton is not a newcomer to the criminal justice system. In fact, he was cooperating with the Rhode Island State Police in a criminal investigation. More importantly, he also executed a consent-to-search form which provided:
"Consent To Search For Buccal Swab
"I, Isaiah Pinkerton, having been informed of my right not to have a search made of my persons [sic] without a search warrant and of my right to refuse to consent to such a search, do authorize: Detectives of the Providence Police Department to conduct a buccal swab. I give my consent to this search knowing that if any incriminating evidence is found it can be used against me in Court.
"I give this written permission to the Detectives named above voluntarily and without threats or promises of any kind."
Pinkerton focuses on the preface of the consent form which recites that he had been told he could refuse to voluntarily provide a swab and that he could insist that one not be taken without a search warrant. Detective Michael acknowledged that he had not orally offered Pinkerton a choice to opt out. It is clear, however, that the introductory language, by itself, makes it abundantly clear to any casual reader that the swabbing could be conditioned upon a warrant and that declining to consent was an obvious option.
Pinkerton, however, says that he was "tricked" into giving his consent to the buccal swab.
The facts do not support chicanery. Although Pinkerton enjoyed a very comfortable relationship with Detective Michael, Pinkerton did not blindly, hastily, or cavalierly sign the consent form. It is clear from the video that Pinkerton read it, considered it, and insisted on knowing what it was for.
He had already told Detective Michael that he had nothing to do with the gun, and Detective Michael explained to him that the buccal swab was for DNA testing and (if Pinkerton was telling him the truth) that it could confirm that he had no connection to the gun. Pinkerton then signed the consent form. See United States v. Kiendra, 663 F.2d 349, 352 (1st Cir. 1981) (noting that "[a]n explicit written waiver is strong evidence of a knowing and intelligent act.)
See State v. Bruskie, 536 A.2d 522 (R.I. 1988) (holding that the defendant, who had been in a car accident and was arrested for drunk driving and had sustained significant injuries, including a concussion, nonetheless voluntarily signed a consent for a blood test even though he claimed no memory of having given such consent); accord, State v. St. Jean, 554 A.2d 206, 211 (R.I. 1989) (follows Bruskie's holding, also noting that, as in the instant case, "[t]he record is devoid of any evidence that St. Jean ever expressed a desire to refuse to take the breath test").
Pinkerton had told Detective Michael that he had been drinking earlier in the evening, but it is clear from watching the video and listening to Pinkerton's conversation with Detective Michael that he did not at all appear to be under the influence of alcohol or drugs. The hallmarks of intoxicants, e.g., slurred speech, incoherent or illogical thought process, or inapposite responses to questions, are absent from Pinkerton's dialogue. Furthermore, Detective Michael, who knew Pinkerton well, and even accompanied him to grand jury proceedings to testify in a Rhode Island State Police investigation, testified unequivocally that Pinkerton was not under the influence when he signed the consent form.
There is no evidence that Detective Michael or Detective Costa overbore Pinkerton's will by threats or inappropriate promises to obtain his consent. Detective Michael told Pinkerton that he was not under arrest and expected that he would be released after their conversation, and he was. The fact that Pinkerton was in custody does not, of course, automatically make his decision involuntary. See State v. Innis, 433 A.2d 646, 651 (1981). Handcuffing an individual to a wall bar at the police station, a standard procedure for officers' safety, does not negate voluntariness. The use of restraints during an interview is "no more confining or inhumane than those that are placed on prisoners from the ACI . . . who appear before this Court pro se." State v. Robinson, 989 A.2d 965, 976 (R.I. 2010) (internal quotation omitted); State v. Barros, 24 A.3d 1158, 1181 (R.I. 2011). It is clear from the video that at no time was Pinkerton uncomfortable, irrespective of the wall handcuff (which the video demonstrates allowed Pinkerton extended arm flexibility).
Withal, it is the view here, under the totality of the circumstances, that Pinkerton thought about signing the form, asked clarifying and pointed questions about it, and then voluntarily signed it with full awareness of its import without any overreaching by the police. The Court rejects, as baseless, Pinkerton's imprecation that he was somehow tricked or cajoled into giving consent to the buccal swab.
II. The Search Warrants for Cellphone and Facebook Accounts
Pinkerton challenges the search warrants issued by the District Court judge, claiming that there is insufficient probable cause in Detective Michael's affidavits to link him to the T-Mobile and Facebook accounts which are the subject of the two warrants.
Pinkerton does not challenge the affidavit submitted in support of his arrest warrant. Instead, he simply says that the issuing judge deserved more than Detective Michael's statement, under oath, that the investigation had also disclosed that Pinkerton utilized the subject T-Mobile number and the Facebook account. Absent more information, he asserts that Detective Michael essentially misled the judge to issue the warrants.
A. The Affiant
Detective Michael authored both of the affidavits which were submitted in support of the search warrants. His well-credentialed professional experience is summarized at the outset of those affidavits:
"I, Detective Theodore J. Michael, do say under oath that I am a sworn member of the Providence Police Department and have been continuously employed in that
capacity for over nineteen years (19) years. I am currently assigned to the Investigative Division/Major Crimes Bureau of the Providence Police Department. My duties include investigating all violations of the General Laws of the State of Rhode Island. Your affiant is also a Task Force Officer with the FBI Safe Streets Task Force, a Special Deputy Marshal with the United States Secret Service New England Electronic Crimes Task Force, and a Field Investigator with the Rhode Island Attorney General's Office. I also have specific training and experience in the investigation of cellular/mobile forensics and cellular triangulations."
Pinkerton does not dispute Detective Michael's investigative expertise.
B. Probable Cause
Courts follow certain guidelines to work their way through the probable cause matrix. First is the advisement that the standard of proof must correspond to what must be proved, which "means less than evidence which would justify . . . conviction[.]" Brinegar v. United States, 338 U.S. 160, 175-76 (1949). Thus, the quantum of proof to establish probable cause "is significantly different from the degree needed to establish guilt," requiring "only the probability, and not a prima facie showing, of criminal activity." State v. Pratt, 641 A.2d 732, 736 (R.I. 1994) (internal quotation omitted); State v. Spaziano, 685 A.2d 1068, 1069 (R.I. 1996) ("Probability of criminal activity is the benchmark."). Applying a "totality-of-the-circumstances test," the court makes a "practical, commonsense decision whether, given all the circumstances set forth in the affidavit" there is a fair probability that there exists evidence of criminal activity. Pratt, 641 A.2d at 736 (internal quotation omitted).
It is said that the existence of probable cause must be found within the "four corners" of the affidavit, State v. Joseph, 114 R.I. 596, 603, 337 A.2d 523, 527 (1975), which includes the totality of the circumstances within that framework. Illinois v. Gates, 462 U.S. 213, 238 (1983); State v. King, 693 A.2d 658, 661 (R.I. 1997); Pratt, 641 A.2d at 736. Accordingly, examination of the affidavit is "not subject to rigorous and hypertechnical scrutiny," because the court may draw reasonable inferences from it and interpret it "in a realistic fashion that is consistent with common sense[.]" State v. Byrne, 972 A.2d 633, 638 (R.I. 2009). "In Verrecchia, 880 A.2d at 94, we declared in the clearest of terms that 'the approach to the probable cause question should be pragmatic and flexible.'" Id. at 639. See Gates, 462 U.S. at 235-39 (directing courts to apply a practical approach for determining whether an affidavit supplies sufficient probable cause).
Our Supreme Court has renewed Justice Rehnquist's observation that '"probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules."' State v. Flores, 996 A.2d 156, 161 (R.I. 2010) (quoting Gates, 462 U.S. at 230, 232).
Importantly, '"[t]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant."' State v. Verrecchia, 880 A.2d 89, 99 (R.I. 2005) (quoting Franks v. Delaware, 438 U.S. 154, 171-72 (1978).
Rather than engaging in face-to-face encounters, Detective Michael points out that essentially the entire population of the United States, which is outnumbered by mobile devices, is generally disposed to communicate through cell phones and social media accounts. Accordingly, he advises that call detail records contain information particularly useful for law enforcement investigation, such as the date, location, time, type of event, duration, phone numbers initiating the usage event (called and calling), even if the caller has blocked identification, as well as text messages and other additional important information to assist investigators. He additionally notes that investigations are furthered through all manner of written communications, photographs, and other means of correspondence via mobile devices and social media.
In his affidavits Detective Michael states, "I have not included each and every fact known to me concerning this investigation, and have only set forth the facts that I believe are necessary to establish the foundation for the search warrant." He writes, however, that the "statements in his affidavit are based in part on the information provided to me by the members of the Providence Police Patrol Department, the Providence Police Department Investigative Bureau, as well as my own investigation and observations." (Concluding paragraph of each of the search warrants.)
With that background, coupled with connecting Pinkerton to the homicide, Detective Michael alerts the issuing judge that investigators had also discovered that Pinkerton had utilized the subject T-Mobile phone number and Facebook account. Significantly, Detective Michael states that when he interviewed Pinkerton on December 12, 2021, immediately after he had been brought to the police station, Pinkerton had identified only two mobile numbers he had been using, (603) 400-4440 and (401) 261-4153. He did not tell Detective Michael about the T-Mobile number which the investigators later uncovered and which "was NOT known by the Providence Police initially." See paragraphs 16 and 20 (as designated by the defense); upper caps are the affiant's.
Pinkerton's assertion that no nexus whatsoever was included in Detective Michael's affidavits is much too sanguine, as his complaint fails to account for scores of undisclosed and clandestine cell phone and social media correspondence which Detective Michael, in his experience, attests probably relates to criminal activity, given the entirety of the circumstances in this case. See United States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999) ("The nexus between the objects to be seized and the [place or person] searched need not, and often will not, rest on direct observation, but rather 'can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime]' United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979).") As stated in United States v. Bain, 874 F.3d 1, 23 (1st Cir. 2017):
'"When it comes to nexus, common sense says that a connection with the search site can be deduced 'from the type of crime, the nature of the items sought,' plus 'normal inferences as to where a criminal would hide' evidence of his crime.' United States v. Rivera, 825 F.3d 59, 63 (1st Cir. 2016) (quoting United States v. Feliz,
182 F.3d 82, 88 (1st Cir. 1999)). This court has, 'with a regularity bordering on the echolalic, endorsed the concept that a law enforcement officer's training and experience may yield insights that support a probable cause determination."' (quoting United States v. Floyd, 740 F.3d 22, 35 (1st Cir. 2014).
Detective Michael's affidavits reflect a careful analysis by a savvy, extremely knowledgeable law enforcement officer who has spent many years examining, dissecting, and investigating mobile, digital, and electronic devices. He avows that, based upon his experience, there is probably evidence of criminal activity to be gleaned from the T-Mobile and Facebook accounts which investigation had uncovered, and courts have consistently accorded significant weight to the opinions, inferences, and experience of affiants like Detective Michael in the probable cause formula. Thus, the United States and the Rhode Island Supreme Courts have directed us to view the totality of the facts and circumstances in affidavits "cumulatively through the eyes of a reasonable, cautious police officer guided by his or her experience and training[.]" State v. Brennan, 526 A.2d 483, 485 (R.I. 1987).
'"[T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."' Flores, 996 A.2d at 162 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)); Byrne, 972 A.2d at 639 (noting that a reviewing court '"should take care... to give due weight to inferences drawn from those facts'" by judges and law enforcement officers) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). As stated by Mr. Justice Rehnquist in Gates, 462 U.S. at 231-32, applying the particularized suspicion standard from Cortez to the probable cause analysis:
"The [probable cause] process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the same - and so are law enforcement officers."
And so are the judges who are tasked with carrying out that process.
Withal, upon completion of the analysis, the District Court judge determined from the totality of the facts and circumstances that Detective Michael's affidavits supported a finding of probable cause to issue the warrants, and the issuing judge's determination is entitled to great deference. State v. Tejeda, 171 A.3d 983, 996 (R.I. 2017); Byrne, 972 A.2d at 637. This Court finds no persuasive basis to override that determination.
C. The "Good Faith" Exception
Without in any way diminishing its confidence in the validity of the instant search warrants, this Court renews the sentiments expressed by the United States and the Rhode Island Supreme Courts that close cases and marginal circumstances should be resolved in favor of upholding the issuing magistrate's conclusions. In State v. Storey, 8 A.3d 454, 461 and n.8 (R.I. 2010) our Court wrote: "[W]e firmly acknowledge the postulate that 'the resolution of doubtful or marginal [probable-cause] cases . . . [is] largely determined by the preference to be accorded to warrants.'" (citing Byrne, 972 A.2d at 639 and quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)). In its footnote 8, the Court also noted that "the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches." Id. (quoting Gates, 462 U.S. at 236).
In Storey, the Supreme Court found the warrant valid and had no need to consider application of the "Good Faith" exception articulated in United States v. Leon, 468 U.S. 897 (1984) in order to resolve a claim of probable cause deficiency. Without in any way suggesting that Detective Michael's attestations are unconvincing, in the event that a reviewing court questions the adequacy of probable cause in Detective Michael's affidavits, this Court believes that Leon is a sensible and judicially approved safety net to avoid the severe step of excluding relevant evidence when, as here, a law enforcement officer makes a good faith effort to abide by the Supreme Court's directive to seek a warrant from a detached, neutral judicial officer.
* * *
For all of the foregoing reasons, all of Pinkerton's suppression motions are denied.