State v. Murphy

1

2023 VT 8

State of Vermont v. Chavis Murphy

No. 2019-029

Supreme Court of Vermont

February 17, 2023

On Appeal from Superior Court, Chittenden Unit, Criminal Division

Alison S. Arms, J. (motion to suppress); Dennis R. Pearson, J. (motion of judgment for acquittal and renewed motion); Martin A. Maley, J. (motion for new trial)

Sarah F. George, Chittenden County State's Attorney, and Andrew M. Gilbertson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Teachout, Supr. J. (Ret.), Specially Assigned

CARROLL, J.

¶ 1. Defendant appeals from his conviction for second-degree murder following a jury trial. He argues that the trial court erred by: (1) denying his motion for judgment of acquittal; (2) denying his motion to suppress evidence obtained as a result of a warrantless ping of his cell phone; (3) failing to sua sponte give a limiting instruction on evidence of flight; and (4) denying his motion for new trial. We conclude that defendant was not entitled to a judgment of acquittal. We further hold that, while defendant had a legitimate privacy interest in his realtime cell site location information under Article 11 of the Vermont Constitution, the warrantless ping was justified by exigent circumstances, and defendant's motion to suppress was therefore properly denied. We reject defendant's remaining arguments as well. We therefore affirm.

¶ 2. The trial court denied defendant's suppression motion in a May 2017 order. It took judicial notice of the findings from its June 2016 hold-without-bail decision and made additional findings. The record thus indicates the following. Around 2:00 a.m. on December 27, 2015, a fatal shooting occurred in Burlington, Vermont, near the intersection of Church and Main Streets. The victim was shot multiple times; three of the shots entered his back. Police arrived on the scene almost immediately after the shooting; they detained and interviewed various individuals.

¶ 3. Several witnesses identified defendant as being present and interacting with the victim immediately before the victim was shot. Police also reviewed surveillance video that captured portions of the scene; it depicted events that generally matched the description provided by the witnesses referenced above. One video showed a group of individuals, who matched the description of witnesses with whom police spoke, walking down Church Street. The group paused in a parking lot, then most moved just out of the camera's range. The video then showed the witnesses visibly reacting to something and running up Church Street. Another video showed an individual wearing clothing that matched defendant's description running down Church Street, away from the scene of the shooting; a witness testified that the shooter had run away in that direction. Several others from the group then ran away in the same direction as this individual. The video shows police arriving thirty seconds later.

¶ 4. Police attempted to locate defendant at his known addresses without success. They learned that defendant had rented a car, and on December 28, 2018, they requested license-plate-reader information throughout Vermont. They also learned from witnesses that defendant matched the description of the alleged shooter, although no witness said that they actually saw defendant shoot a gun. Also on December 28, a friend of defendant's who was present at the shooting told police that he saw the victim approach defendant outside a bar; the victim walked away and then came back. Defendant made a quick movement with his hands and then shots rang out. The friend told police that he thought defendant shot the victim. The friend also described what defendant was wearing that evening, which was consistent with the images on the surveillance video.

¶ 5. Police considered defendant a good suspect, and on December 28, they asked defendant's cellphone carrier, AT&T, for an emergency exigent ping of defendant's cellphone. A ping can locate a phone by showing what cellphone tower the phone is using to draw a signal- data known as cell site location information (CSLI). The lead detective contacted AT&T's law enforcement compliance center and served a subpoena request. In support of the exigent request, the officer indicated that there had been a bar fight, an active shooter, a victim who was unfamiliar with the suspect, and that the shooter might be unreasonable or "in some sort of mental state" and in possession of a firearm. AT&T complied with the request but initially informed police that defendant's phone was turned off and, as a result, it had no information about the phone's location.

¶ 6. On December 29, police obtained a photograph showing a vehicle associated with defendant's license plate driving eastbound on Main Street in Burlington five minutes after the shooting. On December 29, just before 5 p.m., police obtained a search warrant for defendant's cellphone records from December 26, 2015, forward. The warrant application sought various items, including subscriber names and addresses, contact lists on the phone and detailed records about dates and times of calls, and GPS data.^[1] The search warrant and warrant application, including a supporting affidavit, was admitted into evidence at the suppression hearing.

¶ 7. Approximately ninety minutes after the warrant issued but before it was served on AT&T, AT&T notified police that defendant's phone had been turned back on and that a subsequent ping had located defendant's phone in West Springfield, Massachusetts. Vermont police obtained a warrant for defendant's arrest. They alerted Springfield police that a homicide suspect's cellphone had been pinged as being located within several feet from a motel at a particular address. A second ping placed the suspect near a particular restaurant on a specific street. A police officer spotted a person fitting the suspect's description and then received information that a third ping placed the suspect in the area where he was observed. Defendant was arrested shortly thereafter near a motel where he was staying and charged with first-degree murder.

¶ 8. When first confronted by police, defendant essentially said, "How did you find me? Who was it? I know who." Defendant had three cellphones at the time of his arrest, two of which were prepaid (in cash) and had just been purchased, and one of which he had placed on top of the wheel, under the wheel well, of the vehicle he was driving. Police searched defendant's motel room pursuant to a separate search warrant. They seized personal belongings, including the clothing that defendant was allegedly wearing at the time of the shooting as well as various personal items, such as defendant's birth certificate and social security card, which had been ripped up.

¶ 9. Defendant moved to suppress evidence gathered after his arrest, including his personal belongings seized in Massachusetts, statements made to police, and the fact that he had left Vermont and was found in Massachusetts. He argued that, by obtaining his real-time CSLI, police conducted a warrantless search in violation of the Vermont and Federal Constitutions. The State opposed the motion, arguing that a warrant was unnecessary because defendant had no reasonable expectation of privacy in his real-time CSLI, but, even if he did, the search was justified by exigent circumstances.

¶ 10. Following a hearing, the court denied the motion to suppress. It concluded that the real-time CSLI data obtained by police pursuant to their warrantless ping request did not constitute private information protected by either the Fourth Amendment of the U.S. Constitution or Article 11 of the Vermont Constitution. Even if it were protected private information, the court concluded that exigent circumstances justified the request. The court further found that defendant was arrested on a public street pursuant to an arrest warrant issued on the evening of December 29, 2015, and that his presence on the public street was a fact over which he maintained no reasonable expectation of privacy.^[2]

¶ 11. Following a trial, the jury found defendant guilty of second-degree murder. The court denied defendant's motion for a judgment of acquittal at trial and his renewed motion for a judgment of acquittal following the jury's verdict. This appeal followed.

I. Motion for Judgment of Acquittal

¶ 12. We begin with defendant's assertion that he was entitled to a judgment of acquittal because a decision in his favor would dispose of this appeal. Defendant characterizes the State's evidence as "paper thin" and generally asserts that there was not enough evidence to support his conviction. In support of his argument, defendant references the court's statement at trial that there was "just enough, marginally," to allow the case to go to the jury and he notes that the jury did not convict him of first-degree murder. He maintains that these two factors, taken together with the court's failure to instruct the jury on flight evidence, created a real danger that he was wrongfully convicted. According to defendant, this danger was exacerbated because no one saw the shooter, the shooting occurred in the early morning hours after the bars had closed, and "memories were foggy at best." He suggests that the jury may have drawn inferences based on implicit bias and that the jury had to speculate to reach its decision.

¶ 13. The trial court denied defendant's motion for judgment of acquittal at the close of the State's case and denied his renewed motion for a judgment of acquittal following the verdict. The court found the evidence...