News Column

Judge: Evidence from devices seized at Hernandez home can't be used

August 26, 2014

By Laurel J. Sweet, Boston Herald



Aug. 26--Former New England PatriotAaron Hernandez scored a victory today in his defense against one of three murder charges he faces with a judge's ruling that any evidence gleaned from five electronic devices with GPS tracking capability taken from his home last year cannot be used against him at trial because their seizure overstepped a search warrant as a result of "carelessness" by state police.

An iPhone 5 and Blackberry Bold cell phone, an iPad and two iPad mini tablets were taken from Hernandez's home in North AttleboroJune 18, 2013, by state police investigating the slaying of the disgraced Pro-Bowler's friend, Odin Lloyd of Dorchester, the day before. No trial date has been set.

Fall River Superior Court Judge E. Susan Garsh said the warrant police used to enter Hernandez's home authorized them to look for one cell phone linked to Hernandez's Connecticut number and not only did the search warrant not apply to the iPhone, Blackberry Bold and three tablets, it made no mention of GPS devices.

"The court attributes the omission to carelessness ... and not to any loss of interest by law enforcement in seizing the items mentioned ...," Garsh slapped Troopers Michael Cherven and Michael Bates in her 28-page decison.

"The police knew that the locked white iPhone was not Hernandez's phone because they had seen him use his phone at the station and it was a black Blackberry (Z10) phone and not a white iPhone," Garsh continued. "The police also could have dialed (the authorized number) at the residence to see whether either phone at the residence rang ... They did not do so."

State police spokesman David Procopio declined comment.

Though Cherven signed under penalty of perjury that he read documents supporting the search warrant application, Garsh said, "I infer that Cherven did not read the warrant, Had he done so, he would have spotted the fact that the property for which permission to search had been granted did not include the GPS devices ...."

She said it was Bates who "authored the wording" of the items police were looking for and, "The search warrant does not 'command' a search for GPS tracking devices ..."

Further, Garsh said she doesn't even believe Cherven's claim that he brought a copy of the search warrant into Hernandez's home, adding, "Cherven was at the residence for a very short time." Garsh noted she relied partially on "raw footage" taken by multiple news crews of police executing the search warrant, and none show the trooper "carrying any paper or papers into or out of the residence." Another officer, she said, showed Hernandez and his fiancee Shayanna Jenkins a copy of the search warrant, but not the affidavit supporting it.

Hernandez, Garsh said, told police his cell phone was with his attorney. She believes police had that cell phone in their possession before they seized the iPhone and the Blackberry Bold.

"The police had actual verification, at that point, that the iPhone and Blackberry Bold were outside the scope of the search warrant," Garsh wrote. "It was clear that the search warrant did not apply to either of these phones."

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(c)2014 the Boston Herald

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Source: Boston Herald (MA)


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