Review Denied Dec. 9, 2013.
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Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.
Leotis B. Branigh, III appeals from his conviction for first degree murder. He contends that the district court erred by denying his motion to suppress records of his cell phone activity, including text messages, that were obtained by the State from his Kansas cell phone provider; by overruling his trial objection to evidence derived from those records; by overruling his objection to three photographs of the decedent's injuries; and by denying his motion for a new trial premised upon new evidence about a State's witness that was suppressed by the prosecutor. He also asserts that the prosecutor committed misconduct during closing argument by referring to facts not in evidence and failing to correct false testimony.
In October 2007, Michael Johnston, the victim in this case, was residing with his ex-wife, Desiree Anderson, as the two were attempting a reconciliation. During the period when Anderson and Johnston were estranged, Anderson had engaged in a romantic relationship with Branigh. When
Anderson attempted to break off her relationship with Branigh, he did not accept that decision. He was upset and at times threatened to do physical harm to Anderson. During the afternoon of October 1, 2007, Branigh came to the home that Anderson shared with Johnston and pounded on the front door. Anderson called 911, and Branigh left after police arrived.
On that same day, at about 10:20 in the evening, Johnston was shot and killed outside of his Lewiston home. Responding officers spoke to several eyewitnesses who said the shooter was driving a white car. Officers also spoke with Anderson, who told the officers that Branigh had exchanged numerous text messages with her and with Johnston immediately prior to the shooting. Some of the text messages between her and Branigh were stored on her cell phone, which she read to an officer and which were later photographed and admitted at trial. The messages revealed, generally, that Branigh was upset and was making veiled threats toward Johnston.
Branigh's white Camaro (well known to the police) was quickly spotted in the city by two patrol officers riding in a single vehicle. The police vehicle's emergency lights and siren were activated, but Branigh refused to stop and a high-speed chase ensued. The chase ended when Branigh's rear tire was flattened by shots fired by one of the officers. Branigh was charged with first degree murder.
The police obtained a search warrant from a Nez Perce County magistrate to obtain release of Branigh's electronically-stored cell phone records, including a log of phone contacts and the text messages between Branigh and Anderson and between Branigh and Johnston during a period surrounding the shooting. The police faxed the warrant to Branigh's Kansas-based cell phone provider (Sprint), which produced the records to the police. Branigh moved to suppress those records. The district court initially granted the motion, but on the State's motion for reconsideration, changed its ruling and denied suppression.
At trial, Branigh represented himself, with an attorney appointed to assist him. Branigh objected to admission of the Kansas cell phone records and the text messages found on Anderson's cell phone. He also objected to the admission of three emergency room photographs of the victim. The court overruled all of these objections. The State's final witness was a jailhouse informant named Stephen Peak, who testified to several incriminating statements allegedly made by Branigh while the two were housed together in the Nez Perce County jail. The jury returned a guilty verdict.
Thereafter, Branigh filed a motion for a new trial, contending that the prosecutor had failed to disclose information about Peak that could have been used to impeach him. The district court denied the motion. Branigh appeals, challenging the aforementioned district court rulings and contending that the prosecutor committed misconduct by stating facts not in evidence during his closing argument and by failing to correct Peak's allegedly perjured testimony.
A. Motion to Suppress the Sprint Cell Phone Records
Branigh's suppression motion asserted that the State's acquisition of his cell phone records from Sprint violated safeguards afforded by the Fourth Amendment to the United States Constitution and Article I, § 17 of the Idaho Constitution. Both the Fourth Amendment and Article I, § 17 prohibit unreasonable searches and seizures by the government. A search that is conducted without a warrant is unreasonable per se unless it falls within one of the well-defined exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564, 575-76 (1971); State v. Simmons, 120 Idaho 672, 676, 818 P.2d 787, 791 (Ct.App.1991).
Branigh argued to the district court that the Sprint records were illegally obtained because Idaho law enforcement officers had no authority to serve and execute a search warrant at Sprint's headquarters in Kansas.
On appeal, Branigh abandons his argument below that the warrant was illegally served or executed by the officer and now argues that by issuing a warrant to obtain the records located in Kansas, the magistrate court exceeded its authority under I.C.R. 41(a). At the pertinent time, that rule authorized the issuance of a search warrant " by a district judge or magistrate within the judicial district wherein the property or person sought is located...." Branigh contends that because the records sought were not within the magistrate's judicial district, the magistrate court was " without jurisdiction" to issue it. Branigh reasons that the warrant was therefore void and the subsequent search was effectively conducted without a warrant and was ipso facto violative of both Article I, § 17 of the Idaho Constitution and the Fourth Amendment. Although this question of the magistrate's jurisdiction to issue the warrant is not an issue that was raised by Branigh below, because he presents it as a challenge to the magistrate court's subject matter jurisdiction and because the district court raised the application of I.C.R. 41(a), we will address the issue on appeal. See State v. Lundquist, 134 Idaho 831, 835, 11 P.3d 27, 31 (2000); State v. Peterson, 153 Idaho 157, 160, 280 P.3d 184, 187 (Ct.App.2012); State v. Diggie, 140 Idaho 238, 240, 91 P.3d 1142, 1144 (Ct.App.2004).
1. Privacy interest
We begin with the State's contention on appeal that Branigh lacks standing to seek suppression because he had no reasonable expectation of privacy in the records stored by his service provider, Sprint. The Fourth Amendment and Article I, § 17 prohibitions against unreasonable searches are not implicated unless the person invoking their protection had a " justifiable," " reasonable," or " legitimate expectation of privacy" that was invaded by the government action. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226 (1979); State v. Thompson, 114 Idaho 746, 749, 760 P.2d 1162, 1165 (1988). See also Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641 (1980); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); State v. Wright, 153 Idaho 478, 489, 283 P.3d 795, 806 (Ct.App.2012). A defendant attempting to suppress evidence bears the burden to show such a privacy interest and, thus, " standing" to challenge a search. State v. Holland, 135 Idaho 159, 162, 15 P.3d 1167, 1170 (2000); State v. Bottelson, 102 Idaho 90, 92, 625 P.2d 1093, 1095 (1981).
Branigh's Sprint records at issue here consist of two components: a log of telephone numbers to and from which Branigh sent or received calls or texts, and the content of text messages between Branigh and Anderson, and between Branigh and Johnston, from days before the shooting until shortly thereafter. These two components are subject to differing privacy concerns, and the state and the federal constitutions may diverge on whether a privacy interest exists as to the telephone log.
As to that component of the Sprint records that shows only telephone numbers from which Branigh made and received communications,
it appears that Branigh has no privacy interest protected by the Fourth Amendment in view of the United States Supreme Court's decisions in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), and Smith, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220. In Miller, the Supreme Court held that the defendant had no expectation of privacy in his bank's business records of his deposits and, therefore, no interest protected by the Fourth Amendment. The Court stated:
This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
Miller, 425 U.S. at 443, 96 S.Ct. at 1624, 48 L.Ed.2d at 79 (citations omitted). In Smith, the police, acting without a warrant, had installed a " pen register" that recorded all telephone numbers dialed on the defendant's telephone. The Supreme Court, relying on Miller and its progenitors, concluded that:
[P]etitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and " exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.
We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not " legitimate."
Smith, 442 U.S. at 745, 99 S.Ct. at 2583, 61 L.Ed.2d at 230. Therefore, the Court held, the Fourth Amendment was not implicated and no warrant was required.
In interpreting Article I, § 17 of the Idaho Constitution, however, the Idaho Supreme Court reached a different conclusion. It held that a telephone customer does possess a protected privacy interest in such telephone logs. In Thompson, 114 Idaho at 749, 760 P.2d at 1165, the Supreme Court rejected the reasoning in Smith and held that Article I, § 17 of the Idaho Constitution afforded greater protection to such information than did the Fourth Amendment. The Court said that " there is a legitimate and reasonable expectation of privacy in the phone numbers that are dialed." We therefore hold that Branigh had a reasonable expectation of privacy in the telephone log records that the State obtained from Sprint and that the State's acquisition of those logs was subject to the restraints of Article I, § 17.
As to the portion of the Sprint records consisting of text messages, whether there is a privacy interest protected by the Fourth Amendment is not settled. In City of Ontario, Cal. v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010), the issue was presented but the United States Supreme Court did not resolve it. Instead, the Court assumed that Quon had a reasonable expectation of privacy in his text messages, but held that the Fourth Amendment " special needs" exception to the warrant requirement applied in that case. Id. at __, 130 S.Ct. at 2630-33, 177 L.Ed.2d at 227-31. A few jurisdictions, both before and after Quon, have found a protected Fourth Amendment privacy interest in text messages and email messages. In State v. Bone, 107 So.3d 49, 63-67 (La.Ct.App.2012), the court held that the defendant had a reasonable expectation of privacy in the content of his text messages stored by his service provider. The Court in United States v. Warshak, 631 F.3d 266, 288 (6th Cir.2010), likewise held that a subscriber enjoys a reasonable expectation of privacy in the content of emails that are stored or sent and received through a third-party Internet service provider. In United States v. Forrester, 512 F.3d 500, 509-12 (9th Cir.2008), the Ninth Circuit Court of Appeals held that a computer user has no legitimate expectation of privacy in the to/from addresses on his email messages as shown on his home computer because that information is conveyed to his service provider, but the Court in dicta noted that the content of the emails " may deserve Fourth Amendment protection." Several other cases have held that
people have an expectation of privacy in the content stored on their cell phones, including text messages. See United States v. Zavala, 541 F.3d 562, 577 (5th Cir.2008); United States v. Finley, 477 F.3d 250, 259 (5th Cir.2007); United States v. Quintana, 594 F.Supp.2d 1291, 1299 (M.D.Fla.2009); United States v. Davis, 787 F.Supp.2d 1165, 1170 (D.Or.2011).
It is unnecessary for this Court to join the debate as to whether a privacy interest protected by the Fourth Amendment exists in text messages stored by a service provider because, in view of the Idaho Supreme Court's Thompson decision, a privacy interest plainly must be recognized under the Idaho Constitution. If, as Thompson holds, there is a privacy interest protected by the Idaho Constitution in a telephone contact log, by logical extension there also must be a protected privacy interest in the content of text messages, for messages disclose far more intimate and private information than a mere list of numbers dialed. We so hold.
2. Whether the warrant's noncompliance with I.C.R. 41 requires suppression
The next question is whether the magistrate court's warrant that purported to authorize a search outside of the magistrate's judicial district, indeed outside of the state boundaries, satisfied Article I, § 17 of the Idaho Constitution. Branigh asserts that the warrant was void because it was issued in excess of the magistrate's jurisdiction in that the property searched was in Kansas. He bases this argument on former Idaho Criminal Rule 41(a), which then stated:
(a) Authority to Issue Warrant. A search warrant authorized by this rule or by the Idaho Code may be issued by a district judge or magistrate within the judicial district wherein the property or person sought is located upon request of a law enforcement officer or any attorney for the state of Idaho.
Judicial actions taken without subject matter jurisdiction are void. See generally State v. Lute, 150 Idaho 837, 840, 252 P.3d 1255, 1258 (2011); State v. Dicksen, 152 Idaho 70, 76, 266 P.3d 1175, 1181 (Ct.App.2011); State v. Armstrong, 146 Idaho 372, 376, 195 P.3d 731, 735 (Ct.App.2008). Idaho jurisprudence addressing subject matter jurisdiction has generally dealt with challenges to a court's jurisdiction over a case, asserting either that the court never acquired subject matter jurisdiction in the first instance or that the court lost it after a final judgment concluded the case. See, e.g., State v. Jones, 140 Idaho 755, 757-58, 101 P.3d 699, 701-02 (2004) (holding an Idaho court possesses subject matter jurisdiction in the criminal context when a charging document has been filed alleging the commission of an offense, as defined under Idaho law, that was committed within the state of Idaho); State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711, 714 (2003) (the district court no longer had jurisdiction to hear a motion to withdraw the defendant's guilty plea after the case became final). As described by our Supreme Court:
Jurisdiction over the subject matter is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some of the inherent facts that exist and may be developed during trial.
Troupis v. Summer, 148 Idaho 77, 79-80, 218 P.3d 1138, 1140-41 (2009) (quoting Richardson v. Ruddy, 15 Idaho 488, 494-95, 98 P. 842, 844 (1908)). See also Alpine Vill. Co. v. City of McCall, 154 Idaho 930, 936, 303 P.3d 617, 623 (2013). The Idaho Supreme Court " has adopted a presumption that courts of
general jurisdiction have subject matter jurisdiction unless a party can show otherwise." Id.; Borah v. McCandless, 147 Idaho 73, 78, 205 P.3d 1209, 1214 (2009).
No constitutional provision or statute imposes territorial limits on the power of Idaho courts to issue warrants. Article V, § 20 of the Idaho Constitution states that " [t]he district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law." The legislature has statutorily created a magistrate division of the district court. I.C. § 1-2201. Both district and magistrate courts are courts of general jurisdiction in this state. See generally In re Hanson, 121 Idaho 507, 510-11, 826 P.2d 468, 471-72 (1992). Idaho Code § 19-301(1) states that for criminal prosecutions, " evidence that a prosecutable act was committed within the state of Idaho is a jurisdictional requisite." Idaho Code § 19-4406 authorizes magistrates to issue search warrants upon a showing of probable cause.
The only authority we have found that imposed a territorial limit for warrants issued by Idaho courts is former I.C.R. 41(a). We conclude that this rule was not a limit on a court's subject matter jurisdiction, but a voluntary restraint on a state court's authority that was judicially imposed by the Idaho Supreme Court through adoption of the rule. It is noteworthy that in 2012 the rule was amended to expressly authorize warrants for property located outside the territorial boundaries of the state. Therefore, the Idaho Supreme Court apparently is not of the view that such warrants are inherently beyond the jurisdiction of Idaho courts. We hold that the magistrate here had subject matter jurisdiction to issue the warrant. Although the warrant was issued in violation of limitations placed on the magistrate's authority by former I.C.R. 41(a), this was merely a judicial error, not an act taken without subject matter jurisdiction.
Branigh also appears to argue that the violation of Rule 41(a) calls for suppression of the Sprint records regardless of whether the rule's territorial limitation is jurisdictional. We find this argument to be without merit because the exclusionary rule requires suppression of evidence only when constitutional restraints on searches or seizures have been violated. Decisions of both the United States Supreme Court and the Idaho Supreme Court establish that the violation of state statutes in the conduct of a search or arrest does not justify suppression so long as constitutional standards are met.
In Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), a defendant who was arrested for a misdemeanor driving offense and was searched incident to arrest argued that resulting evidence must be suppressed because under state law the misdemeanor was not an arrestable offense. The Supreme Court held that although the arrest was unlawful under state law, suppression was not warranted because the existence of probable cause for the arrest satisfied the Fourth Amendment. Moore, 553 U.S. at 171-72, 128 S.Ct. at 1604-05, 170 L.Ed.2d at 567-68. Similarly, in Dalia v. United States, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979), the Supreme Court rejected a contention that if a court order authorizing surveillance did not authorize a covert entry to facilitate that surveillance, the entry violated the subject's Fourth Amendment privacy rights. The Court said:
The Fourth Amendment requires that search warrants be issued only " upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Finding these words to be " precise and clear," Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 ...