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Child porn case goes forward after bid to quash evidence fails

South Boston News
Remines / October 12, 2020

The trial of a South Boston man accused of possessing child pornography will go forward after a motion to suppress digital evidence was denied Friday by Halifax Circuit Judge Kim S. White.

Defense counsel for Jerry Remines, 56, sought to quash evidence taken from Remines’ cell phone after raising questions about the handling of the device by a State Police special agent who participated in a Nov. 20, 2019, search of the suspect’s Merritt Hills home. Images of child pornography extracted from Remines’ confiscated iPhone form the basis for 11 felony counts of possession of child pornography against him. Ten of the charges are for second-offense child porn possession.

South Boston Police and State Police conducted the search of Remines’ home in late November as they were pursuing a different complaint — by a South Boston officer who alleged Remines had extracted personal data from his cell phone without his permission. Remines operated a computer and cell phone services business out of his residence, and the officer, Cpl. Adam Whittemore, took a cell phone to Remines to be repaired.

After getting the phone back, Whittemore discovered that private images had been emailed from the device to Remines’ account without his consent. He pressed charges of misdemeanor computer trespass, setting in motion the Nov. 20 search by South Boston Police, with the assistance of State Police Special Agent Travis Barr, a digital forensics expert, and other State Troopers.

Officers found Remines outside of his residence sitting in a porch seat, and they, armed with a search warrant, took away his cell phone. Unbeknown to police, at the same time they were interrogating Remines and searching the premises, they were also under the surveillance of a home security system that Remines had installed at his home.

Video from the porch security camera contradicts several points of later courtroom testimony by Barr and the lead investigator in the case, South Boston Detective Tiffany Bratton.

Remines’ defense team, Richmond attorneys Matt Pinsker and Charles Lewis, argued that the actions of Barr and Bratton — some of which show up in the home video — broke chain of custody standards for the handling of criminal evidence, thus rendering the case against their client as “the fruit of the poisonous tree.”

These issues and more — including an inquiry on whether police had conducted a second, warrantless search of Remines’ iCloud account days after the household raid — played out in the Friday hearing before White in Halifax County Circuit Court.

A key point of contention Friday was whether Barr, by handling Remines’ phone for four minutes rather than immediately sealing it in a special bag to protect electronic evidence, had tampered with the device or left it vulnerable to outside tampering, as alleged by defense counsel.

The use of the word “tampering” to describe Barr’s actions drew a heated objection from Deputy Commonwealth’s Attorney Will Hamilton, who called the defense claim “a completely spurious argument.”

Simply looking at the phone and scrolling through its contents would not constitute tampering, he said. “If there was tampering, it would have shown up on the [lab] analysis,” added Hamilton.

White, in ruling against the evidence suppression motion, also had harsh words for Pinsker, calling his assertion of police tampering “reckless, to be honest.

“The court finds there is no evidence that there was a breach in the chain of custody” of evidence, said White. She further suggested that Pinsker, a former federal special prosecutor and state prosecutor, should consider talking to a State Bar ethics officer about why his tampering claim runs afoul of court ethics rules.

“In fact, you can tell them [the bar] that I think your language is reckless,” said White.

Video taken from Remines’ porch camera shows Barr holding the phone and scrolling through its contents and apps for four minutes and eight seconds, before he placed the device in a protective bag. Barr switched the phone to Airplane Mode, which keeps the device from receiving cell phone signals, but the setting does not block signals from a WiFi network. The device, the defense contended, was thus left exposed to tampering during that short period of time.

To prevent outside alterations, including implanted data, police typically use a “faraday” protective bag to seal up cell phones and other electronic evidence.

By failing to immediately put the phone in the bag, Barr left it open to potential manipulation. By scrolling through the phone before submitting to a State Police lab for full data extraction, Barr further violated standards for custody of incriminating evidence, argued Pinsker.

“The burden is on the Commonwealth to show there was no altering of the phone” during the four minutes that Barr flicked through the contents, he told White.

Barr and Bratton, in separate accounts provided during a prior preliminary hearing, each testified that Barr sealed up the phone immediately after taking the device from Remines. The home video shows otherwise.

Bratton, in her testimony, said that she witnessed Barr taking the phone from Remines and placing it in the special bag. However, on the video, Bratton is shown walking away from the special agent and then leading Remines to the basement of the home for questioning. It was only after they had gone to the basement that Barr, standing outside on the porch, can be seen putting the phone in the faraday bag.

In motions filed with the court, Pinsker wrote that “Detective Bratton fabricated a story which concealed this misconduct by law enforcement,” alluding to Barr’s decision to look through the phone’s contents for four minutes. She made up the part about seeing Barr put away the phone, the motion to suppress further states.

“After she handed the phone to Special Agent Barr, she [Bratton] was unable to see what he was doing because she walked away and was not looking at or paying attention to what Special Agent Barr was doing with the phone.”

The motion accuses Barr of providing similarly false testimony by saying he sealed up the phone after taking it from Remines, without accounting for the four minutes when it was exposed. “A lie of omission is still a lie,” the motion reads.

Remines’ lawyers also claim that a police search of his iCloud account — conducted some five days later — was conducted without a search warrant. In a Nov. 26, 2019, report, Bratton wrote that “Special Agent Barr told me that he saw in excess of one hundred thousand images and approximately fourteen thousand videos of child pornography” on the iPhone and iCloud account. She then took out a warrant for the search after submitting the report, according to defense lawyers.

Assistant Commonwealth’s Attorney Anna Bowen, who also argued the prosecution case Friday, pushed back at that depiction by the defense. Instead, Bowen said, Detective Bratton simply erred when she said Barr had extracted pornographic images from Remines’ iCloud account. All the evidence that will be used against Remines at trial was extracted from his cell phone, she said.

Called to the stand, Bratton conceded she was responsible for any confusion about the two searches, of the iPhone and iCloud.

“I think the mistake on my part was I included the part about the iCloud” account in the Nov. 26 report, said Bratton, adding, “I am not a computer expert, so the mistake was mine.”

She admitted having mixed up an explanation from Barr, confusing the data from Remines’ phone and from his cloud account. Bowen came to Bratton’s defense: “She said what she put in the report was a mistake,” but added, “There is nothing in there that indicates the information in the iCloud account was used as the basis for the issuance of [the second] warrant.”

Pinsker scoffed at the changing explanations for the genesis of the second warrant, saying Bratton and the prosecution were trying to put a positive spin an unauthorized warrant.

“What’s more believable, the statement made months later that’s self-serving, or the statement made soon after” the warrant was issued nearly a year ago, he asked.

However, White said she found the prosecution argument credible, saying she did not “think there’s any evidence that Detective Bratton has been dishonest” in explaining how the second warrant arose. “There may be evidence of her being human and making a mistake.”

In a related claim, the defense team has called into question how evidence in police custody has changed since Remines’ arrest in November. In court filings, the lawyers claim that two separate data extractions were run on the cell phone — in November 2019 and March 2020, the second time at the request of the defense.

The two sets of extracted data were significantly different in size — 30 gigabytes versus 46.2 gigabytes — and law enforcement claims of possessing tens of thousands of child porn images and videos has since been whittled down to 1,200 images and one video, according to the defense.

Pinsker complained to White that he continues to have difficulty obtaining evidence that the prosecution intends to use at trial, and which the defense is entitled to. “We can look at the Commonwealth and say they’ve been playing fast and loose with [pre-trial] discovery,” he said.

After the motion to suppress was knocked down by White, Pinsker asked for a switch from a jury trial, which Remines had requested, to a bench trial by the judge —likely a move to keep a jury from viewing the images taken from Remines’ phone, following the defeat of the motion to keep the evidence from the jury.

White said she would agree to the trial request, pending the consent of the Commonwealth’s Attorney’s office, which has the right to seek a jury trial. Hamilton said the office would consider the request.

The defense and prosecution have also been tussling over a request to allow Remines, who is said to be in poor health, to be released from jail on secured bond. He is being held at the Halifax County Adult Detention Center with no bond.

Hamilton argued that Remines should remain behind bars awaiting trial — in large part because of the likelihood, with his technical expertise, that he will continue to access pornography if allowed to go free.

“Nothing heard today makes the defendant safer to be out on the street and released from our custody,” said Hamilton.

But Pinsker countered that Remines should be allowed out on bail, citing what he called foot-dragging by prosecutors in turning over potentially exculpatory evidence, and the contradictions that have been uncovered in the case.

“The family is here today — they have a lot of concerns about how this case has been handled. They want somebody who is watching the back of Jerry Remines, that’s all,” he said.

White did not change the bond status for Remines, who remains incarcerated in Halifax.

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