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RESPONSE TO MOTION TO EXCLUDE EVIDENCE - 1
RIDGEWAY COUNTY COURT
THE PEOPLE,
vs.
TOMDONOVANSMITH,
Defendant
Case No.: CCRC-CM-1424
RESPONSE TO MOTION TO EXCLUDE EVIDENCE
RESPONSE TO MOTION TO EXCLUDE
STATEMENT OF FACTS
1) Defendant had added government officials and the District Attorney to the
group chat before the events of July 4 th took place.
2) Defendant, upon finding that he was under investigation, removed all persons
from that group chat – including the District Attorney.
3) Defendant denied existence of, and refused to turn over to prosecutorial staff,
the contents of that group chat.
4) Defendant stated that he was trying to “preserve evidence” by removing all
people from the group chat, however he refused on several occasions to turn
such evidence over to investigators.
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RESPONSE TO MOTION TO EXCLUDE EVIDENCE - 2
ARGUMENTS
INEVITABLE DISCOVERY
There are several exceptions to the exclusionary rule promulgated in Mapp
v. Ohio, one of those exceptions is the inevitable discovery rule in which evidence
would be inevitably discovered through legal process. See Nix v. Williams, 467 U.S.
431 (1984) (“If the prosecution can establish by a preponderance of the evidence
that the information ultimately or inevitably would have been discovered by lawful
means -- here the volunteers' search -- then the deterrence rationale has so little
basis that the evidence should be received.”)
As affirmed through later arguments in this response, the prosecution would
have inevitably gotten access to this group chat through legal process of discovery
in a criminal trial. The prosecution absolutely knew what was going on inside the
group chat, it already knew that the evidence existed and all the parties that were
involved in the situation.
Considering that the exclusionary rule was created to stop bad faith fishing
expeditions and targeting by government authority and rather an expedited recovery
of known evidence under exigent circumstances, the inevitably discovery exception
must be granted to the evidence.
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RESPONSE TO MOTION TO EXCLUDE EVIDENCE - 3
REMOVAL OF DISTRICT ATTORNEY
WAS UNLAWFUL
The District Attorney was originally apart of the group chat, and then later
the defendant removed the District Attorney from the group chat in a means to hide
his involvement with the case. This removal was unlawful, and therefore the
government retains its right to access communications it originally had access to.
The defendant, in his SIO interview, admitted that he immediately took that
to the Deputy District Attorney to gain immunity from the situation in exchange for
the evidence and attempted to use the evidence as a bargaining chip to stop him
from being prosecuted.
DEFENDANT HAD NO EXEPECTATION OF PRIVACY
Defendant has no real, legitimate expectation of privacy and thus fails the
first prong of the test set out in Katz. See Katz v. United States, 389 U.S. 351 (1967)
(“[the search is invalid] … when an individual has exhibited an actual (subjective)
expectation of privacy, and the expectation is one that society is prepared to
recognize as reasonable…”
The expectation of privacy must also be linked with some sort of personal
property law or understand that is permitted by societal expectation See Rakas v.
Illinois, 439 U.S. 128 (1978) (“expectation of privacy must have a source outside
of the Fourth Amendment either by reference to concepts of real or personal
property law or to understandings that are recognized and permitted by society.”)
As affirmed in several other cases, the expectation of privacy promptly ends
when it comes to third parties such that when a message is sent to a third party then
the reasonable expectation of privacy then promptly ends. See Fetsch v. City of
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RESPONSE TO MOTION TO EXCLUDE EVIDENCE - 4
Roseburg, 6:11-cv-6343-TC (D. Or. Jun. 11, 2013) (“When plaintiff transmitted
messages and photos to a device-Sheppard's cell phone-over which he had no
control, he voluntarily ran the risk that his messages and photos, once delivered,
would be viewed by whomever had access to Sheppard's phone.”)
When the defendant initially sent those messages to that group, one which
pertained exclusively to government business and not personal matters, the
defendant forewent any reasonable expectation of privacy in relation to those
messages. The expectation of privacy that the defendant is demanding is simply
one that cannot be reasonably accepted, and due to such group chat being filled
with exclusively government officials – the foundational expectation of privacy is
significantly eroded.
To uphold the arguments of the defendant would demand the government
to attain a search warrant for a group chat with evidence even if one of the members
of that group chat voluntarily turned such evidence over to investigators.
Furthermore, the fact that the District Attorney was removed from the group
chat does not reinstate any expectation of privacy as such previously forgone since
the District Attorney has already seen those messages after being voluntarily added
before these events unfolded. To insist that the ability to use these messages against
someone becomes moot after that person has been removed in a corrupt manner –
and that defendant somehow regained his expectation of privacy after that removal,
is not one the government is willing to accept and therefore argues it is not one that
society is ready willing to accept.
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RESPONSE TO MOTION TO EXCLUDE EVIDENCE - 5
EXIGENT CIRCUMSTANCES JUSTIFIED USE OF AUTHORITY
The government used lawful means of authority to recover evidence that
pertains to a criminal investigation by threatening legal action. The government
concedes that the “threats” made by the District Attorney, the Deputy District
Attorney, and state investigators were uses of state authority – however such use
was lawful and justified.
This justification comes from when exigent circumstances would prove
necessary to use governmental authority without a warrant, and one of these exigent
circumstances that is valid – is to prevent evidence from being destroyed. See
United States v. McConney, 728 F. 2d 1195, 1199 (9th Cir.) (“We define exigent
circumstances as those circumstances that would cause a reasonable person to
believe that entry (or other relevant prompt action) was necessary to prevent
physical harm to the officers or other persons, the destruction of relevant evidence,
the escape of the suspect, or some other consequence improperly frustrating
legitimate law enforcement efforts.”)
The simple and unfortunate truth it is extremely easy to modify and destroy
evidence with discord. With a simple snap of the two buttons, extremely important
evidence to a case can be dissolved without little knowledge that such evidence
existed other than witnesses testifying on hearsay.
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RESPONSE TO MOTION TO EXCLUDE EVIDENCE - 6
Defendant’s conduct during these events such as demanding immunity and
forcibly removing all witnesses and investigators from the group chat was a willful
action to hinder a state investigation, and the state had to lawfully interject and use
its authority to prevent the possible spoilation of evidence. Based on the exigent
circumstances of the defendant knowing he was potentially under criminal
investigation, and that he has taken a deliberate act to remove the District Attorney,
the state investigators and District Attorney’s Office reasonably believed that the
defendant was going to spoil the evidence and that immediate use of state and
county authority was required to prevent such spoilation.
DEFENDANT’S MOTION FOR EXCLUSION IS HYPOCRITICAL
Under defendant’s interpretation of the law (not ours) the usage of evidence
obtained without warrant or discovery is unlawful as the defendant contends there
is a expectation of privacy in these group chats yet defendant’s appendix C contains
evidence from a chat that was expressly DENIED for discovery, as it was found
that such evidence was completely and totally irrelevant for the case – yet the
defendant has already overstepped and acted contrary to the reasonable expectation
they argued for.
This act by the defendant is the best demonstration as to how the expectation
of privacy they are arguing for is unreasonable and not accepted by society, because
they cannot even adhere to that expectation themselves by using evidence in line
with the directive they so promulgated on that motion.
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RESPONSE TO MOTION TO EXCLUDE EVIDENCE - 7
DEFENDANT’S MOTION FOR EXCLUSION IS IRONIC
Defendant admitted in his SIO interview that he “speculated” that the group
chat has evidence in it, yet he refused to give it up to the District Attorney’s Office
and state investigators until several hours later and after the District Attorney’s
Office had to threaten him with charges of evidence tampering.
This motion to exclude is ironic to the situation due to the entire fact that
from the defendant’s own mouth he asserted that he protected the contents of that
group chat for the basis of evidence (Exhibit A); yet the defendant built a motion
around trying to exclude the group chat that he has “protected” as evidence.
These constant logical conflicts in the defendant’s statements in their
interview, and with their court filings expressly exhibit the defendant’s own guilt
and their inability to keep a valid line of reasoning and thus have proved to the court
the extent of their criminal action and affirms their culpability.
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RESPONSE TO MOTION TO EXCLUDE EVIDENCE - 8
CONCLUSION
The court should DENY the motion to exclude Exhibit M from the
prosecution’s case.
Dated this 13th of July, 2021.
/s/ siteowner
District Attorney
Ridgeway County
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RESPONSE TO MOTION TO EXCLUDE EVIDENCE - 9
APPENDIX
APPENDIX A, showing that Appendix C of the Defendant’s motion originated from a chat where
discovery was denied.
