Pot Case Goes Up In Smoke When Cops Don’t Connect Cell Phone With Suspect

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By Tera Brostoff

Law enforcement’s failing to lay a foundation for a cellphone’s ownership doomed the case against a suspected marijuana distributor, the Virginia Court of Appeals held Dec. 20 ( Garnett v. Commonwealth , 2016 BL 422039, Va. Ct. App., No. 1573-15-2, 12/20/16 ).

In April 2015, police searched a car that Terrell Garnett was driving and seized more than 200 grams of marijuana from the trunk. The searching officer also found a mobile phone, although she later testified that she couldn’t remember if she found it in the car or on Garnett’s person. The phone was searched, revealing evidence of the potential sale and distribution of marijuana.

Texts found on the phone were introduced at trial and were pivotal to Garnett’s eventual conviction of intent to distribute. He appealed, claiming the court erred by admitting the texts over objections for lack of foundation.

Circumstantial Evidence Wasn’t Sufficient

The appellate court explained that the Commonwealth can authenticate texts from cell phones with either direct or circumstantial evidence. The Commonwealth relied on circumstantial evidence to prove that Garnett owned the phone and authored the texts. The Commonwealth argued that Garnett was the only person in the car, so the phone had to belong to him.

But the appellate court wasn’t swayed by this reasoning.

“Appellant argued that there was no evidence that the cell phone belonged to him or that he used the phone to send or receive text messages…The Commonwealth did not offer the records from the cell phone carrier to prove that the cell phone belonged to appellant,” the court said. “Appellant did not make any statements to the police regarding the ownership of the cell phone…There was no evidence from other people who may have sent or received text messages from appellant and could recognize his text messages.”

The court found the evidence insufficient to establish a foundation for admitting the texts.

“The error in this case was not harmless,” the court said. “The Commonwealth conceded at oral argument that if the cell phone did not come into evidence, then there was not sufficient evidence to convict appellant.

Indeed, the Commonwealth relied on the text messages to advance its claims that Garnett possessed marijuana with the intent to distribute it.

The court reversed and remanded the case.

Owen and Owens PLC represented Garnett.

The Assistant Attorney General of Virginia represented the Commonwealth.

To contact the reporter on this story: Tera Brostoff in Washington at tbrostoff@bna.com

To contact the editor responsible for this story: Carol Eoannou at ceoannou@bna.com

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