WESTFIELD, Mass. (The Westfield News) – A transient man who had been brought to trial in Hampden Superior Court for 12 city break-ins found that number reduced to two when Superior Court Judge C. Jeffrey Kinder, associate justice of the Superior Court, allowed a defense motion to suppress evidence obtained from the defendant’s cellphone.
Christopher D. Moll, 46, formerly of 2063 Memorial Drive, Chicopee, was arrested after a Devon Terrace resident, who serves as a police officer in a neighboring community, discovered the man in the act of kicking open a neighbor’s cellar window.
Investigating police found tracks leading from a nearby house where they found that a cellar window had been forcibly opened. The officers found that the basement had been entered but, stymied by a locked door leading to the upper floor, nothing was stolen from the house.
When Moll was taken into custody, no vehicle associated with him was found in the area.
Westfield Det. Sgt. Stephen K. Dickinson, who had been investigating as many as 40 housebreaks at the time, states in court documents that evidence resulting from Moll’s arrest fits the modus operandi apparent in other cases.
Dickinson documents reasons to believe that the thief had not driven a vehicle to the neighborhood where he was breaking into houses, perhaps because an unattended vehicle in a residential neighborhood might draw complaints and official interest.
Instead, Dickinson reports, his investigation suggested that the burglar had an accomplice who dropped him off in the target area and subsequently picked him up.
Dickinson thus focused on finding Moll’s accomplice and, when he learned that Moll had been in possession of a cellphone when arrested, checked the ‘recent calls’ feature on Moll’s phone to see if he could find a record of him contacting his accomplice to arrange for a ride.
Dickinson explained, in a recent interview, that case law allows officers to search only the recent calls on an arrestee’s cellphone record and the first call on the list was the number he called in his search for an accomplice.
However, he said, Moll had received the call from that number “a couple of days” earlier and, as the immortal bard wrote, “there’s the rub”.
When Dickinson called the first number on the ‘recent calls’ list he did not reach a driver but instead found himself speaking with Moll’s former girlfriend, a Chicopee resident who, he said, was “eager to help.”
“She told me everything”, he reports.
Among the things the woman told him, Dickinson said, was the name of the city resident Moll had been staying with, Alfred W. Jasmin, , 67, of 189 Springfield Road, who Dickinson described at the time as a “very compliant” Vietnam War veteran who was “remorseful” and allowed officers to search his home, a trailer, including the area Moll had occupied.
Jasmin told the investigators that he had allowed Moll to sleep on his couch because “he felt sorry for him.”
Jasmin also showed the officers houses where he had taken Moll and dropped him off while he burgled houses on Devon Terrace, Northwest Road, Bailey Drive and twice on Springdale Road where four houses were entered and an attempt was made to enter a fifth house.
Jasmin told Dickinson that Moll was “responsible for a ton of breaks in Connecticut and throughout the area” which he did not have direct knowledge of.
He also took the detectives to a Holyoke bodega where he said he had driven Moll to sell his swag before driving him to another Holyoke location to buy heroin with the proceeds.
Moll was immediately arraigned in Westfield District Court for the two Devon Terrace break-ins and, while he was being held in lieu of $1,000 cash bail, police continued their investigation.
On Feb. 13, Moll was arraigned, in the Westfield court, with six more charges of breaking and entering in the daytime with intent to commit a felony, four charges of larceny of property valued more than $250 and two more charges of attempting to commit a crime which were brought as eight cases.
On March 14, Jasmin was charged, in 12 cases, with nine charge of breaking and entering in the nighttime with intent to commit a felony, three charges of breaking and entering in the daytime with intent to commit a felony, eight charges of larceny of property valued more than $250 and three charges of attempting to commit a crime.
In June, Moll saw six charges of breaking and entering in the nighttime with intent to commit a felony, six charges of larceny of property valued more than $250, three charges of breaking and entering in the daytime with intent to commit a felony, a single charge of larceny of property valued less than $250 and a single charge of attempting to commit a crime dismissed in district court after he was indicted and arraigned for the same offenses in superior court where much stiffer sentences area available to judges.
At the same time, Moll saw three charges of breaking and entering in the nighttime with intent to commit a felony, two charges of larceny of property valued more than $250 and single charges of breaking and entering in the daytime with intent to commit a felony and attempting to commit a crime not prosecuted due to insufficient evidence.
In superior court, Moll’s attorney, Stephen E. Shea of Greenfield, filed a motion to suppress the evidence resulting from the search of Moll’s phone and “the defendant’s space/room” at Jasmin’s trailer on the grounds that the search of the phone was “without a warrant, without exigent circumstances, without meaningful consent, and without authorization or cause.”
Assistant District Attorney Matthew J. Shea argued, in his memorandum in opposition to the motion, that Dickinson had been searching for Moll’s driver when he handled the phone “for approximately 1-2 minutes” reviewing “the recent calls and texts in that phone from that day or, at most, from a day or two prior.” He cited case law which suggests “Even calling a number from the arrestee’s phone on its recently called list without a warrant is permissible” and noted that Dickinson’s check of the recent activity on the phone “was not a sophisticated review of e-mail, Internet sites or other ‘smartphone’ applications.”
The judge, in his ruling to allow the defense motion, points out that in 2013 a federal court “adopted a bright line rule prohibiting a warrantless search of a defendant’s cellphone data incident to his arrest, absent exigent circumstances” but notes that “Massachusetts Courts have not yet gone that far.”
Kinder writes that, after no vehicle was found when Moll was arrested, “there was no reason to believe that others were involved at that location” and that “there was no reason to search Moll’s cell phone for evidence of associates who participated in the criminal conduct at 66 Devon Terrace.”
The judges concludes, he writes, that “the purpose of Sergeant Dickinson’s cellphone search was to identify the person who police suspected might have acted with Moll in the earlier break-ins” and was not a “search for evidence directly related to the crime for which the defendant was arrested.”
Dickinson said that all of the evidence his team of detectives assembled – the identity of Moll’s accomplice and all that Jasmin revealed relative to all of the break-ins prior to the Devon Terrace crimes – flowed from his phone call to Moll’s former girlfriend and thus it is all “fruit of the poisonous tree” and thus inadmissible in court.
He said that Moll pleaded guilty to the two break-ins he was originally arrested for and was sentenced to an 18-month jail term, with credit for the 369 days he was in custody while awaiting adjudication.
He will be on probation for two years following his release.
Dickinson also said that, since all the evidence against Jasmin is also fruit of the same poisonous tree, he expects the various charges pending against him to be dropped.
“It’s very disheartening” said Dickinson who acknowledged that it was his mistake which allowed Moll and Jasmin to be released.
He said that because the record found on Moll’s phone was not ‘recent’ to the crime Moll was arrested for, he now knows that he should not have called the number but instead should have applied for a search warrant to examine the phone.
He said that the double jeopardy rule does not apply because neither Moll nor Jasmine actually faced trial for the many cases which were dropped when the suppressed evidence was lost.
He said that there is still evidence from the other break-ins which is awaiting examination at the state crime lab and may make it possible to again bring charges against Moll or Jasmin.
Media Credit: The Westfield News