Commercial Litigation and Arbitration

Text Authentication — Admission of Ownership of Cell Phones Suffices to Authenticate Content Extracted via Data Dump and Tie It Owner (Note That Some of the Texts Self-Identified the Author As Sender) [Email]

Hoey v. State, 2017 Ark. App. LEXIS 267 (Ark. Ct. App. April 27, 2017): 

Robert Maurice Hoey was convicted in the Miller County Circuit Court of possession of more than twenty-five pounds of marijuana with intent to deliver, and he was sentenced to eight years' imprisonment in the Arkansas Department of Correction. On appeal, Hoey contends that the trial court erred by (1) denying his motion to dismiss, thereby violating his right against double jeopardy; (2) denying his motion to suppress; and (3) admitting certain evidence. We affirm.

I. Facts

A. Motion to Suppress

Hoey was charged after a traffic stop on Interstate 30 north of Texarkana, Arkansas, resulted in police finding fifty-six pounds of marijuana in the trunk of his car. Hoey filed a motion to suppress alleging that the marijuana was seized in violation of his Fourth Amendment right to be free from unreasonable search and seizure.

At the hearing on Hoey's suppression motion held on October 29, 2014, Arkansas State Police Officer Bernard Pettit testified that he had made the traffic stop because the car Hoey was riding in was following too closely to the car in front of [*2]  it. Pettit said that, after he had stopped the car, he identified himself to the driver, Harry Taylor, who handed over his license and a one-way car-rental contract from Austin to Philadelphia signed by Hoey as the renter. Taylor was not listed as an additional driver on the contract. Hoey also gave Pettit his license, and Pettit said that he ran a criminal history check on both men and discovered that both had criminal histories. Pettit asked Taylor to step back to Pettit's car with him, and he noticed that Taylor never calmed down, even though he said that drivers will usually do so within a minute or two. Pettit asked Taylor about his trip while Taylor signed the warning Pettit had issued to him. Taylor told Pettit that he and Hoey had taken a flight from Delaware to Austin to visit Taylor's aunt, with whom they had spent the night. However, Taylor could not remember his aunt's name. Pettit said that, based on all he had learned, including his having seen air fresheners, food bags, and several cell phones in the car, he left Taylor in the police car and approached Hoey to obtain his account of the trip. Hoey was nervous and said that he and Taylor had taken a flight from Delaware [*3]  to Austin to visit Hoey's pregnant girlfriend and that they had spent the night in a hotel.

Pettit said that based on the totality of these indicators, he thought Hoey and Taylor may be involved in criminal activity. He said that Hoey got out of the car, and Pettit became concerned about whether the car contained illegal guns, explosives, or narcotics. Pettit asked Taylor, as the driver of the vehicle, for consent to search the car, and Taylor denied the request. Pettit then asked for Hoey's consent because Hoey had signed the rental agreement. Hoey also declined. Pettit said that he told the men he wanted to search the car for drugs, guns, or explosives and that he would bring a K-9 unit to do a free-air sniff around the vehicle. He said that the closest K-9 unit was in Texarkana. Pettit also called for backup. Pettit said [*4]  that he indicated to Hoey that he had called for the closest K-9 unit, but that it may take a while for it to get there. Hoey told Pettit that it was not a problem, and Pettit noted in his report that Hoey did not mind waiting.

Pettit said that when the K-9 unit arrived, the dog alerted twice while conducting a free-air sniff around the vehicle. Pettit said that the dog's alert gave the police probable cause to search the car, and Pettit found a black plastic bag in the trunk containing a bale that was later determined to be marijuana. The cell phones were also confiscated from the car, and both men were placed under arrest and Mirandized.


C. Jury Trial

Hoey's jury trial was held on April 26, 2016, and Officer Pettit testified as he did at the original suppression hearing. Special Agent Corwin Battle of the Arkansas State Police was qualified as an expert witness in computer forensics and mobile-device forensics. He testified [*14]  that he investigated this case and examined the three telephones found in the rental car. When he was asked to testify about specific text messages he had discovered, Hoey's counsel objected that a proper foundation was not presented because the State could not prove that Hoey was the user of the phone when the text messages were sent or received. Counsel also argued that the messages were dated February 6, and the offense date was February 14. The State responded that the text messages were being presented to show that Hoey was involved in drug trafficking, and the text messages about to be introduced referred to buying and selling drugs on days prior to his taking the trafficking trip. When the trial court told the State to lay its foundation, the State responded that it was not alleging that Hoey sent the messages, but the messages were on the telephone that he admitted was his. The trial court ruled that the State should lay its foundation as to whose phone it was and when the messages were received.

When Officer Battle testified regarding the report he had prepared from the data he received from Apple, Hoey's counsel objected that Officer Battle's report relied on hearsay because [*15]  she could not question anyone from Apple about its process in extracting information from the Hoey's phone. The trial court asked Officer Battle whether he was accessing what Apple sent or the hard drive that was returned from Apple, and he responded that he was accessing the hard drive that Apple had returned to him. The trial court overruled the objection.

When the State began to ask about specific text messages, the trial court excused the jury and reviewed the messages to determine their relevance and admissibility. The State submitted text messages that referenced money and marijuana.4 Hoey's counsel objected that the messages were hearsay, the State would have no witnesses to give context to them, and the State had not laid a proper foundation. She also argued that Arkansas Rule of Evidence 404, which provides that character evidence is not admissible for the purpose of proving that the person acted in conformity therewith, prevented admission of some of the messages that were sent after the arrest. The trial court disallowed the messages dated after the arrest and those so far in advance of the arrest that the trial court considered them to be too remote.

4          The text messages included the following: "Can I get something till my check comes this week, Tuesday?"; "Hit me when you get this."; "Yeah, but I won't be back till Saturday. Is that $300 still good?"; "Hit me up. This is Rob. This is my new number."; "Should be back this time Monday."; "Deposited 500, C U when you get back."; "Is the popcorn reggi?"; "Outta town rite now when I get back probably Monday should be a go."; "Hey big guy, still 300?"; "Wassup unc here's the info 4 me if u can. Robert Hoey acct no. 383011793159. They have one on the 202 by Bestbuy and on 11thSt."; "U gotta try dat luke sky walker."; "I got my homey bringing luke sky walker n blue dream u can't be having me set stuff [*17]  up n not answering your phone."; "This Rob my new number I don't have anything rite now."; and "You can come pick up $200 you don't have to bring nothing if you don't want to if you just give me a half. I will give you the rest on the 15th. Things got tight since I've been working and not moving the greenbeans."

The State also offered [*16]  evidence of Google map searches of Austin, Texas, and internet searches regarding locations of Bank of America, storage buildings, and queries on rental car agencies. Hoey's counsel objected to the Google searches, arguing that the State had to prove that Hoey was the person who conducted the searches. The trial court ruled that a proper foundation had been laid to establish that the phone belonged to Hoey, that he had access to it, and that he had possession of it. The trial court stated that the information was more probative than prejudicial and relevant under Rule 404(b) to prove intent, plan, scheme, motive and preparation of drug trafficking.

Officer Randy McAdams with the Texarkana Police Department testified that he is the K-9 officer who conducted the free-air sniff with his dog. He described that his dog gave an alert, he then advised the troopers that the alert was positive for the odor of narcotics, and they started their search. Kaitlin Patton, a forensic chemist with the Arkansas State Crime Lab, testified that she examined the packages found in the trunk of Hoey's car and found that they contained 6.36 kg, 6.22 kg, and 6.28 kg of marijuana.

Hoey's counsel moved for a directed verdict, arguing that the State failed to prove that he was in actual or constructive possession of the marijuana found in the car. The trial court denied the motion. Hoey then presented [*18]  his case, and Taylor testified that he flew to Austin and that Hoey signed the car-rental agreement. He said that when he was pulled over by Officer Pettit, he was shaking because he was cold. He said that he told the officer that he did not know his aunt's full name because everybody called her "Aunt" or "Nanny" because she is old. He took full responsibility for obtaining the marijuana in Austin and denied that Hoey had any involvement in it. He described wrapping the marijuana with a sheet soaked in ammonia and Saran Wrap to mask the smell. He placed it in an opaque black trash bag and placed it in the trunk without Hoey's knowledge. He said that he took a negotiated plea and was on parole. He said that he had sworn out an affidavit to the prosecutor stating that Hoey had nothing to do with what took place on February 15, 2013. He said Hoey went to Austin to see a lady friend and he had gone to see a family member and some friends while in the process of trying to obtain the marijuana. He admitted on  cross-examination that he did not tell the judge when he pled guilty that Hoey did not have anything to do with the incident. Taylor denied that he was upset that Hoey had [*19]  bonded out of jail in Miller County and he had not. When Hoey's counsel renewed her motion for directed verdict, the trial court denied it.

The jury found Hoey guilty of possession with intent to deliver over twenty-five pounds of marijuana. He was sentenced to eight years' imprisonment and fined $2500. He filed a timely notice of appeal, and this appeal followed.

II. Argument


C. Admission of Evidence

In evidentiary determinations, a trial court has wide discretion, and we do not reverse a ruling on the admission of evidence absent an abuse of discretion. Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003). Hoey contends that the trial court erred in allowing the introduction of several text messages, photos, and internet searches alleged to have been made by him in violation of Rule 901 of the Arkansas Rules of Evidence.5 He argues that the proper foundation was not made and that even if the evidence had been admissible, it was more prejudicial than probative.

5          Ark. R. Evid. 901 (2016) provides in pertinent part as follows:

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of Witness With Knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.

. . . .

(4) [*30]  Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

Hoey contends that Gulley v. State, 2012 Ark. 368, 423 S.W.3d 569, requires that a proponent of the admission of electronic evidence provide sufficient evidence to corroborate authorship or to authenticate [*29]  the evidence prior to admission. Hoey argues that in Gulley, the authenticity of the evidence was established not just by a showing that the phone belonged to the defendant, but was also corroborated by other witnesses as to the text exchanges and to testimony that the defendant had taken actions consistent with some of the text messages. He also cites Todd v. State, 2012 Ark. App. 626, 425 S.W.3d 25, where the authenticity of chat-room logs was confirmed by the defendant's behavior that was consistent with the chat logs and the testimony of a law enforcement officer that the contents were accurate representations of the chat-room conversations he had with the defendant.

Hoey argues that the State did not offer any evidence that he had authored any of the text messages or proffer any evidence that would show that the messages, photos, and internet searches had any characteristics that would be distinctive to Hoey. He argues that before the State may use data pulled from a mobile device to deprive a person of liberty, more is needed than a connection between the ownership of the device and the accused.

Hoey also contends that the electronic evidence was admitted in violation of Rule 404 of the Arkansas Rules of Evidence.6 Hoey argues that the State introduced several text messages which referenced a bank account number, messages that used various terms that a law enforcement officer testified to be slang terms for marijuana, and other miscellaneous messages. Hoey contends that, even if taken at face value, there was no showing that the messages were related to the incident Hoey was charged with, nor did they illustrate any motive, preparation, or plan. Therefore, he claims that the admission of the electronic evidence prejudiced him in that it was presented as evidence for no other purpose than to implicate him as someone who used or dealt with marijuana in unrelated incidents and so was of the character of someone who would commit the offense charged.

6          Ark. R. Evid. 404 (2016) provides as follows:

(a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he [*31]  acted in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Officer Battle testified that Hoey claimed ownership of two cellular phones that were taken from him by Pettit. One was a Samsung flip phone and the other was an Apple iPhone. Search warrants were obtained and an extraction [*32]  report was produced from the Samsung phone after its content had been dumped. The content retrieved from the phone included call log records, text messages, and data files that included audio, images, and text files. A similar data report was also produced from the Apple iPhone. Battle had knowledge that the phones belonged to Hoey and that the extraction reports were produced from Hoey's phones. Thus, his testimony was sufficient to authenticate the electronic evidence under Rule 901(b)(1).

Further, Rule 404(b) evidence may be admissible for other purposes other than to prove the character of a person in order to show that he acted in conformity therewith, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Phavixay v. State, 373 Ark. 168, 282 S.W.3d 795 (2008). The standard of review of admission of Rule 404(b) evidence is whether the trial court acted with an abuse of discretion. Id. Hoey was charged with possession of a controlled substance with purpose to deliver. The extraction reports of his phones revealed messages, dated less than two weeks before the traffic stop, that made references to marijuana. The reports also revealed searches for storage, car rentals, cheap flights, what transactions are [*33]  reported to the IRS by banks, and information on reloadable prepaid cards. This information supported the State's theory that Hoey was involved in a scheme of drug trafficking. Thus, the trial court committed no abuse of discretion in admitting the evidence.





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