A police officer did not violate the rights of a sex offender when he sent a text message to the suspect's mobile phone upon his arrest to confirm the defendant had used the phone to exchange messages with his victim, and unknowingly, with police, an NYS appeals court has ruled.
Patrick M. Hackett, 44 at the time of his arrest, was accused in May 2013 of having sexual intercourse with a teenage girl in Batavia. He was later indicted on a single count of rape, 3rd, for being more than 21 years old and having sexual intercourse with a partner who was less than 17 years of age.
Hacket was convicted by a jury Nov. 13, 2014, and later appealed the use of his text messages as evidence against him, which was instrumental in his conviction.
"Although there is a lack of medical, scientific, or other physical evidence of the crime, the jury saw incriminating text messages from (the) defendant to the victim in which he admitted that he engaged in sexual intercourse with her and professed his love to her," the justices of the Appellate Division, Fourth Judicial Department, wrote in their decision. "In addition, (the) defendant’s trial testimony in which he denied having sexual intercourse with the victim was not credible inasmuch as he provided the jury with improbable explanations for the incriminating text messages."
The charge against Hackett arose after his victim reported the sexual intercourse to police. She cooperated in the investigation and agreed to send Hackett a text message. Once he responded, a police officer used her phone to exchange a series of text messages with Hacket.
When the officer arrested Hackett, the officer used his mobile phone to send a text message to Hackett's phone. Hackett's phone either vibrated or made a noise and the officer could observe that his text message had arrived at the phone. At that time, the officer did not open the phone and view the text messages. A search warrant was later obtained.
In his appeal, Hackett said the text messages should not have been admissible at trial because the officer's actions at the time of arrest, he said, constituted an illegal search and seizure.
Hackett's appeal relied on a 2014 case, Riley v. California. Riley, a Supreme Court ruling, determined that a search warrant, based on probable cause, is required for police to search a suspect's mobile phone.
The appeals court ruled that the Riley case does not prohibit officers from sending text messages to the defendant and making observations of the defendant's phone and that the court in Riley found that officers can observe physical aspects of the phone.
Further, the text message sent by the officer was not part of the police officer's application later for a warrant to search the phone and there was sufficient probable cause to obtain the warrant.
The court also ruled that Hackett received competent representation from his defense attorney at trial, who was successful in suppressing some evidence the prosecution tried to enter into the record.
It also did not violate Hackett's right to a fair trial by allowing testimony about Hackett providing his victim with alcohol prior to their sexual contact, even though he was not indicted on that "bad act." The court ruled the incident helped complete the narrative of events leading up to the crime on the night in question. The court ruled the exclusion of this information would not have changed the outcome of the trial given the overwhelming evidence of Hackett's guilt. Testimony about the drinking, the court ruled, was "harmless."
At the time of his arrest, Hackett was already a registered sex offender. He was convicted in 1993 in Cattaraugus County of kidnapping and rape in the first degree.
On his local conviction, he was sentenced to three and a half year to four years in prison. He is scheduled to be released in November.
