3.Argument and Ruling on 2018 Phone Search
59 linesSUZANNE MAYES: We have no further witnesses on this issue, Your Honor. Lieutenant Laintz has summarized the State's position regarding the search of the phone in 2018 for a physical extraction.
THE COURT: Mr. Secor.
CASEY SECOR: Thank you, sir. I have, it is already if I can look at my computer to make my argument.
THE COURT: Don't read it though. You may do that, since you asked nicely. I appreciate it more than you know.
CASEY SECOR: I may just need to refer to my notes as I go through it. And there is a few things that I would like to address specifically but as a general matter and this is pertaining to the third page which includes the reason for apprehending the property sought on the subject premises. And I would state that the entirety of the affidavit, that paragraph, the reasons, consist of hearsay without establishing in any way the basis for the belief. As Your Honor obviously knows pursuant to Illinois versus Gates, the warrant affidavit has to include information about the voracity basis of knowledge of the person supplying hearsay information. If you review that paragraph there is no information whatsoever about who relayed the information to the Lieutenant.
THE COURT: Which information, so I can distinguish, about the road check and looking for the children or the information about cell phone or analytical advancements. Which information?
CASEY SECOR: The information contained in that paragraph, the four corners of that paragraph which begins on Wednesday, September 3rd, 2014, going to end, there is nothing in the warrant affidavit that indicates what the source of that information is. There is nothing about the voracity and basis of knowledge of the people supplying that information.
THE COURT: He is the lead investigator.
CASEY SECOR: He testified today that it was, the information was put together in consultation with Investigator Creech, I believe he said. But it doesn't say anything in the warrant affidavit about that. It doesn't say that there was told that this information, it doesn't say that he reviewed information, these are just conclusory statements put into a paragraph without any information whatsoever about where they came from.
SUZANNE MAYES: I can elaborate, Your Honor. Of course, hearsay is permissible in a search warrant, it is routinely used across the State and well accepted. But aside from that, the record is already complete from previous hearings we have had in this case about the role Lieutenant Laintz as well as the role of Sergeant Creech. Sergeant Creech was the lead Investigator at that point and time, Lieutenant Laintz was the Sergeant of major crimes, he was the first person, one of the first people notified of Mr. Jones arrest down in Mississippi. And the testimony in the previous hearings has been that he was present and participating through the sheriffs department with those authorities down in Mississippi. He took part in numerous aspects of that including coordinating efforts here in Lexington County to search for the children where they were missing and ultimately he was the one who was notified by Mississippi authorities that that vehicle was stopped and the BOLO hit. Again, there is no need for us to keep revisiting this information which is already part of the record in this case.
THE COURT: Yes, sir.
CASEY SECOR: The problem is there is not a shred of evidence in the warrant affidavit which is required to establish the voracity, basis of knowledge of the affiant and the sources of hearsay upon which the affiant is relying. All of those things Ms. Mayes just said should have been in the warrant affidavit. That is what gives the Judge the ability to know whether or not probable cause exist based on the information being relayed to him or her by the affiant.
SUZANNE MAYES: Your Honor, I think it goes without saying that at the time this search warrant was obtained in 2018 the Defendant had already placed, had already been stopped, had already confessed which is noted in the probable cause aspect. And this is information known to the Lexington County Sheriffs Department, there is no need for additional information other than what is already set forth in that probable cause paragraph.
THE COURT: I don't, Mr. Secor, I understand you are looking for some sentence of aspect. But I don't understand, explain it to me one more time.
CASEY SECOR: In Illinois versus Gates, United States Supreme Court case, it said when hearsay is used in a warrant affidavit, that the voracity and basis of knowledge of a person supplying the hearsay information needs to be established in the warrant affidavit. If you read this paragraph it is entirely hearsay. It doesn't say where it comes from, who it comes from, why it is reliable, why the Court should take into consideration, why law enforcement believes that it is valid. It is merely conclusory statements, if the Lieutenant had stated all of the information about being involved in the case, coordinating with Investigator Creech, communicating with people in Mississippi, naming the people in Mississippi, stating why they had personal knowledge, all of that would be relevant. And that is what the Fourth Amendment requires. And to suggest that something in regards to the Fourth Amendment goes without saying is completely contrary to Fourth Amendment law. Nothing goes without saying, that is why we have warrants, is you can't do things without saying. And when it comes to hearsay, you have got to say who gave you the information, how do you know it is legit, why should I believe you. That is the whole purpose of the four corners of a warrant affidavit. And this warrant affidavit is absolutely devoid of any information pertaining to--
THE COURT: That also doesn't take any of the aspect that the Detective appeared in front of me, in front of me--
CASEY SECOR: Yes, sir.
THE COURT: And the voracity and all of that had already been repeated to me numerous times in prior hearings that things have happened, that this was done and that was done. He explained to me the phone has been seized, it was seized during the safety checkpoint. I don't understand how you can challenge, I am not following you because it doesn't seem logical to me that it would be a, this is not like tipster information. I mean, these are, I am not sure how to characterize it.
CASEY SECOR: May I say something?
THE COURT: It is not hearsay that he was arrested in Mississippi.
CASEY SECOR: It is, Your Honor. I mean, it doesn't say where the information comes from.
THE COURT: From public record. Public records aren't hearsay. I mean, his arrest warrant was, he was taken into custody in Mississippi, how is that hearsay. It was filed with the lead Investigator and spoke on the phone with, the report was the Sergeant on duty. How is that hearsay to him when he is an actor involved in this, retrieving information to get, to communicate with the Mississippi folks. He has got firsthand knowledge.
CASEY SECOR: Well, and in being hearsay is not what is prohibited. Of course, hearsay can be in a warrant affidavit but what can't be is hearsay that doesn't, isn't supported with any reason for why a Judge should believe it. That is the things that Ms. Mayes said are relevant and should have been included in the warrant affidavit indicating the Lieutenant's involvement in the investigation, his consultation with other investigators in the case and the source of information upon which he based his warrant affidavit. I agree with Your Honor, in most cases the receiving Judge is the Judge who knows nothing about a case. And that is why these issues come up more. Obviously this case is unique because Your Honor, as you stated, was familiar with the case in a lot of ways at the time that this was presented.
THE COURT: I don't find it hearsay that he was arrested in Mississippi. Somebody in Mississippi, hey, he is arrested. Well, Jones is already back in South Carolina, has been moved to several different, I mean that is not hearsay in 2018. I mean, that is not hearsay. Now, may be a different story, if he is sitting there the day after the safety checkpoint, I have got a little bone with the guy. That is a little different. But that is a long way down the road for it to be hearsay. I mean, I understand your argument, make your record but I think it is sufficient for a probable cause to search that phone with advancement in the computer software to do the two separate types of extractions and analyzing that. I don't quite understand the, your hearsay argument. It doesn't seem like to me--
CASEY SECOR: In the event I have been unclear, if you read this paragraph there is virtually no information about where this information comes from. It does not indicate where this information comes from. They are conclusory statements, no information about where or what the source of information is which is required by the Fourth Amendment.
THE COURT: Well, considering I heard, had knowledge of, been presented in prior hearings, I had knowledge of aspects of the case which had been repeated numerous times. The lead Investigator in front of me says, this phone has been in possession since a day or so, since the search of the vehicle in Mississippi. I don't see that that is, having the lead Investigator in my presence giving me information that the phone needs to be, basically reimaged with newer software, considering what I knew, my background, what I had already been presented, I don't find that there is a voracity issue for me.
CASEY SECOR: I understand and you being the issuing Judge, you are in a unique position to know that. I mean, obviously I don't know what Your Honor knew so.
THE COURT: I had been participating in pretrial work, pretrial hearings, conferences, funding orders, all sort of things with all aspects of this case. And so I don't think that is, the voracity of him being arrested in Mississippi and being transported back and they were looking for him wasn't an issue for me. So make certain your record is complete.
CASEY SECOR: Yes, sir. And I am just going to go over a few additional points, if I may. If Your Honor continues further down that paragraph there is a sentence that states, "On Monday, September 8th, 2014, Timothy Jones, Jr. made a statement to law enforcement admitting to maliciously killing his five children." Your Honor, I would just to point out to Your Honer that that sentence includes a material misrepresentation in that, people involved in this case, had they reviewed the evidence, would know that Mr. Jones never admitted to killing Nahthan. And the affidavit says that he admits to maliciously killing his five children. So that would be material misrepresentation in the four corners of the warrant affidavit. And Mr. Jones had specifically told officers, including Investigator Creech, that he had, did not know how Nahthan died. And so based on the Fourth Amendment jurisprudence I would say that the warrant affidavit contains all of the information either intentionally included or included to the reckless disregard for the truth. And I would also state in that same sentence, omits some exculpatory information. It does not state, in fact, that Mr. Jones said that he didn't know how Nahtahn died and that would be exculpatory.
THE COURT: I agree with you on that. Now, that will be presented to the jury but not, for purposes of the search warrant I don't find that relevant of that distinguishing semantics of maliciously killing five versus four and one, I am not sure. But I appreciate your argument, understand it but I don't believe that that would impact the, whether it was a probable cause for that phone to be reimaged and researched the second time.
CASEY SECOR: Yes, sir. And I would like to put a couple of cites on the record if that is all right with you.
THE COURT: Sure.
CASEY SECOR: The first case is State versus Missouri, 337, SC 548 from 1999. And in that case the South Carolina Supreme Court recognized, Franks versus Deleware applies to acts of omission in which exculpatory material is left out of the affidavit. And the Missouri Court went on to state that when an omission is combined with an affirmative falsehood it reveals that the affiant not only believed the omitted information is critical but that statement in the affidavit to the contrary was necessary for establishing probable cause. That is the conclusion of my argument regarding that point. And I have just a few others that I will go through.
THE COURT: Let's go, keep going.
CASEY SECOR: I believe Your Honor's prior ruling will apply to this as well. The sentence that begins, following these statements on Tuesday, September 9th, 2014, Timothy Jones, Jr. then led law enforcement officers to a location, Wilcox County, Alabama where the bodies of his five children were located. This is supported by physical evidence and various witness statements. And the affidavit doesn't state what physical evidence is. It doesn't say which various witness statements were reviewed to make that conclusion. It doesn't say who the witnesses are, it doesn't say what the witness' base of knowledge was. And it doesn't say anything about how, who the, the witnesses were reliable. So I would say that these are, that portion of the affidavit is conclusory and fails to establish the affiant's basis of knowledge. And I would cite State versus Smith, 301 SC 371, 1990 stating that mere conclusory statements which give the Magistrate no basis to make a judgment regarding probable cause are insufficient.
THE COURT: And I can tell you this, on September 9th it would be my understanding that Mr. Jones did not have his phone and his information leading to going to recover the bodies, whatever that was, the search of the phone would not be impacted as to any behavior by Mr. Jones during that time period because he is in custody. He doesn't have his phone. So that is a, it is superfluous information, information of his whereabouts leading up to his arrest and the reimaging, researching the phone the second time is what I understood the probable cause needs to research the phone. I mean, I agree with you, that sentence is in there. It is superfluous information. There is nothing on the phone or, I don't know that, I didn't see the information but it would seem to me it would be very likely that if Mr. Jones doesn't have his phone and he is in custody there is no information on the phone that would be utilized by the State that would be harmful or prejudicial to Mr. Jones at all because he is in custody. That, I understand your argument but I don't see that would aid me in deciding probable cause or not.
CASEY SECOR: Yes, sir.
THE COURT: It did not.
CASEY SECOR: Yes sir, I understand. Further down the same paragraph, Your Honor, it states, "It is believed the contents of these devices may corroborate the physical evidence and testimony by Timothy on this case." And I would just state that the affidavit does not say how it may corroborate or why it may corroborate. And that that statement, it may corroborate, it is speculative and does not establish a nexus between the activity investigated. And without that nexus established probable cause does not exist pursuant to United States versus Lalor, L-A-L-O-R, 996, F2d, 1578, 1993. Lastly, Your Honor,--
THE COURT: You want me to rule on that one too?
CASEY SECOR: I am sorry, yes sir.
THE COURT: I happened to be trained, I went to 2016 or '17 to the National Computer Forensics class for Judges down in Alabama at the, Homeland Security puts it on. Fascinating, I enjoyed it but with that training, my understanding is, there is lots of information on the phone, there is lots of ways to utilize. I don't find it, searching a cell phone has become must more prevalent and very common in just about every case presented to the Court, more and more and more. It is almost an exception that there is no cell information presented by either side to exculpatory and culpatory. Cell phones are personal computers, personal diaries, personal information, phone calls, all sort of records. The Court was aware of that, that a cell phone in anybody's possession triggers all sorts of information that is available. So I was aware that was a connection between a person and his cell phone, just from my understanding and all the cases that I have heard and my training is to how phones work and the imaging. I am not going to say I am an expert in the field but I understand the technology to some degree as to how it works and the tracking and the information that we have done. I don't think I needed a tie to the nexus. All right.
CASEY SECOR: I understand. Lastly, towards the end, I think it is the last sentence, Your Honor. It says, "The search of this device is sought to perform physical extraction in order to locate and preserve any relevant information located on the device." Again, the Fourth Amendment requires specificity regarding what type of evidence law enforcement expects to find in the specific location search. I would argue that the phrase, any relevant information with specificity requirement. And I would cite Marron versus United States, that is M-A-R-R-O-N, 275, US 192 from 1927 stating, "Requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another as to what is to be taken, nothing is left to the discretion of the officer executing the warrant." So I would argue at this point the discretion was left entirely to the executing officer in violation of the Fourth Amendment, it says any relevant information without describing it.
THE COURT: I think it, has described it very specifically with saying, deleted data. They didn't know exactly what deleted data would be there until they imaged the phone. So potential deleted data is very specific and it certainly doesn't mean it is admissible but deleted data would be information, data secured on that phone that could be retrieved and perhaps utilized in the future. So that older case I don't think applies. I mean I think the search warrant description of the deleted data is very specific.
CASEY SECOR: Yes, sir. And I would just, for purposes of that same point I would just also cite, Maryland versus Garrison, 480 US 79 at 84 from 1987 stating that the particularity requirement ensures that the search would be carefully tailored to its justifications that will not take up character of the wide-ranging exploratory searches that the framers intended to prohibit. And I would just argue that a warrant allows officers to search for any relevant information provides too much discretion to the executing officer, even if its, even if it is paired down to deleted information because deleted information on electronic devices can be incredibly vast and immense. And there is no guide updated to what type of deleted information is sought and why it would be relevant to this.
THE COURT: I disagree with your analysis. Searching a phone, one device that is held in a singular hand, that is a small device. Certainly advanced technology, with a lot of information there, that is a very narrow search, that I would like to search this cell phone. They named it with specificity with its IME number or serial number, whichever it is, which distinguished that phone from any other phone in the whole world. So searching one phone found in his possession on the date of his stop is very particular, very reserved. I don't find it to be vast, I don't characterize it that way in my mind.
CASEY SECOR: And I wasn't trying to put words in--
THE COURT: I understand, I want to give a ruling and I have in the past and distinguish, I think of these things and not put them on the record and then later on I get reviewed and they, this way, and I was thinking exactly those things. So I am putting on what I am thinking. So you understand where I am thinking from.
CASEY SECOR: I am trying to do the same thing.
THE COURT: I understand where you are coming from. And I am not suggesting you are thinking that I was not doing it properly, just you suggesting these are arguments and will argue. Very well.
CASEY SECOR: Exactly correct. And lastly, I would just state, Your Honor, that South Carolina Courts had to use the Leon good faith exception as a reference to United States versus Leon, 468 US 897 from 1984. And I would just state, despite the obvious existence of a good faith exception in South Carolina Courts, have occasionally utilized. The Leon Court indicated supression still remains an appropriate remedy where the warrant is so facially deficient and failed to particularize a place to be searched or things to be seized. And I understand, that would be the basis of our argument, that all of the information from the phone should be suppressed under the Fourth Amendment.
THE COURT: Okay. I understand your argument, respectfully denied for reasons I have outlined.
CASEY SECOR: Yes, sir.
THE COURT: All right. Anything else.
BOYD YOUNG: Can my Paralegal be let back in now?
THE COURT: She may. Any other issues we need to take up. I want to take up the Blair issue for the record. Anything else before I do that?
BOYD YOUNG: No, sir.
THE COURT: All right. On, Ms. Mayes, do you have anything else?
SUZANNE MAYES: No, sir.