[November 21, 2009]

Text messages challenged in Crofton shooting: Defense claims information obtained without warrants

Nov 21, 2009 (The Capital - McClatchy-Tribune Information Services via COMTEX) -- Prosecutors may not be able to use some evidence county police collected against a man charged with the attempted murder of his pregnant girlfriend in Crofton.

In a motions hearing yesterday in county Circuit Court in Annapolis, prosecutors and defense attorneys debated whether text messages from the victim, Jodi Torok, and the defendant, Charles Brandon Martin, were obtained properly, and whether they will be allowed as evidence. Martin faces the possibility of life in prison if convicted of attempted first-degree murder.

According to prosecutors, Torok -- who was one of at least three girlfriends Martin had on the side -- was shot in the head about 3 p.m. Oct. 27, 2008, in the foyer of her townhouse. She was pregnant with Martin's child and the two were arguing about whether she would have an abortion, they said.

Defense attorney Leonard Stamm argued that the text messages on Martin's phone were obtained without a warrant.

Police initially found Torok's BlackBerry near her body. They picked it up in an effort to try to get information about what had happened, Detective Michael Regan said.

They found a text message from Martin, and using the phone number programmed into Torok's phone, found out what cellular service he used.

Then they called Sprint, the cell phone carrier, to see if they could get information on the phone: whether it was on, whether there was a tracking device on it, whether it was being used in the area.

When police contacted Sprint, someone with the cellular company said the phone's user had sent a lot of text messages. The representative told police they could get those text messages in "exigent circumstances," provided they could get a court order for them within 48 hours.

Assistant State's Attorney Crighton Chase argued that police considered time was of the essence: they didn't know if the victim would survive, they didn't know if Martin, who several witnesses said was her boyfriend, was in on it or possibly also injured in the shooting.

Police got some of the text messages that same night, and more of them later. They also got the court order for them Oct. 28, the following day.

On Oct. 29, police got several search warrants for Martin's house, car and a DNA swab. All of the warrant applications referenced both sets of text messages.

Stamm argued in court that since the text messages were obtained without a warrant, they shouldn't be admissible.

In the petition for the court order on Oct. 28, police made no mention of the fact that they already had the text messages in question, he said.

Detective Martin Hammond said in court that they initially only called Sprint to get information about his phone, and that they didn't even know they could get text messages.

They were caught off-guard, Hammond said, adding that they now have a procedure for getting warrants for those electronic messages.

Judge Pamela L. North did not decide in court yesterday, but asked both sets of attorneys to file motions as to whether the text messages should or should not be allowed by Monday afternoon.

On Monday morning, a bond review for Martin will continue. Martin's bond was revoked last month when prosecutors alleged that he tried to persuade a key witness to change her testimony.

Late yesterday afternoon, the witness, his former girlfriend, was called into court and recounted the episode in which she said Martin grabbed her and told her to call police and change part of her statement pertaining to the weapon used in the shooting.

Martin is scheduled for a criminal jury trial Nov. 30.

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