Michael Moreno, s/k/a Michel Moreno v. Commonwealth of Virginia ( 2021 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Beales and Athey
PUBLISHED
Argued by videoconference
MICHAEL MORENO, S/K/A
MICHEL MORENO
OPINION BY
v. Record No. 1801-19-4 JUDGE CLIFFORD L. ATHEY, JR.
JUNE 15, 2021
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge Designate
Robert M. Vernail for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Michael Moreno, s/k/a Michel Moreno (“Moreno”) challenges his conviction for
first-degree murder and felony hit and run. In support of this challenge, Moreno contends that the
Circuit Court of Loudoun County (“trial court”) erred when it failed to suppress evidence obtained
from a warrantless “ping” of Moreno’s cell phone. Finding no error, we affirm the convictions.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. Commonwealth,
295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). In doing so,
we discard any of appellant’s conflicting evidence, and regard as true all credible evidence
favorable to the Commonwealth and all inferences that may reasonably be drawn from that
evidence. Id. at 473.
In late 2017, Moreno’s mother was diagnosed with lung cancer. During the time that
Moreno’s mother was hospitalized, his sister Nancy Moreno (“Nancy”) spent almost all of her time
at the hospital. Moreno disapproved of the traditional medicine being utilized to treat his mother
and supported alternate treatments. Nancy, acting as their mother’s power of attorney, disagreed
with Moreno’s suggestions for non-traditional treatment and continued their mother’s treatment at
the hospital. As their mother’s condition continued to deteriorate, Moreno accused Nancy of killing
their mother by refusing to accept his suggestions.
When their mother was released from the hospital in March 2018, Nancy moved into the
house with Moreno and their mother to continue to care for her. On March 30, 2018, their mother
succumbed to her illness. Nancy remained in the home to look after Moreno because he did not
have a job.
Moreno told multiple people that he blamed Nancy for their mother’s death and claimed that
Nancy had “murdered” his mother. On Saturday, July 21, 2018, Nancy had to travel for work and
was departing from Dulles airport at 8:30 a.m. that morning. Nancy loaded her luggage into her
Blue Toyota RAV 4 licensed BCNGU around 6:55 a.m. Moreno drove the RAV 4 with Nancy
riding upfront, in the passenger seat. Their house was located only about fifteen minutes from
Dulles airport.
Moments before the car was to arrive at the airport, Moreno stopped the RAV 4 on the
shoulder of the road. Nancy then exited the car and began walking toward the airport. Larry
Washburn (“Washburn”) testified that as he was driving his vehicle on Innovation Avenue in
Loudoun County, he saw Nancy’s RAV 4 sitting on the shoulder of the road with Nancy walking on
the shoulder carrying a travel bag. Thinking that the car was out of gas, Washburn pulled ahead of
the RAV 4 onto the shoulder of the road and waited on Nancy to see if she needed a ride.
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Through his rearview mirror, Washburn witnessed the RAV 4 accelerate directly at Nancy,
running over her, leaving her body on the ground. The RAV 4 continued onto the road, dragging
Nancy’s luggage. Washburn then began following the RAV 4 while flashing his headlights and
honking his horn in an attempt to get the driver to stop. The RAV 4 did not stop which prompted
Washburn to note the license plate of the vehicle, BCNGU, and call 911 to report what he had seen.
While on the phone with the 911 operator, Washburn pulled alongside the RAV 4 so that he could
see the driver.
Another motorist, Jonathan McCoy (“McCoy”), also saw the incident on the shoulder of the
road. McCoy similarly noted the license plate BCNGU and reported the same to 911. McCoy lost
sight of the RAV 4 after following the vehicle for a short period of time.
Paramedics arrived at the scene and transported Nancy to Reston Hospital. The trauma
surgeon on duty testified that Nancy had numerous broken bones in her legs, chest, back, skull, and
face. Upon arrival, Nancy was in a coma and bleeding inside her brain. Nancy died a few hours
later from multiple blunt force injuries.
Loudoun County Detective Shannon Coderre (“Coderre”) received the information about
the collision from the 911 dispatcher and learned that the vehicle bearing the license plate BCNGU
belonged to the victim. Coderre gathered DMV information about family members and
determined that Moreno fit the description of the driver that Washburn had provided.
After determining that Moreno was a suspect, Sergeant Michael Grimsley (“Grimsley”)
prepared a search warrant for Moreno’s home. Coderre called and texted Moreno’s cell phone,
but Moreno did not respond. When Moreno did not respond, Grimsley asked Moreno’s cell
phone carrier for an emergency ping of the cell phone’s location in an effort to locate Moreno.
The carrier provided Loudoun County officers with real-time Cell Site Location Information
(“CSLI”) of Moreno’s cell phone.
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Based on the CSLI provided, Loudoun County officers learned that Moreno was at the
Live Casino in Anne Arundel County, Maryland. Surveillance video at the casino confirmed that
Nancy’s Toyota RAV 4 was at that location. When Grimsley located Moreno at the casino
Moreno asked, “how’s my sister?”
Inside the RAV 4, Loudoun County officers found a box of Nancy’s jewelry and receipts
for three bottles of motor oil that had been purchased after the collision. Nancy’s cell phone was
collected and included several texts from Moreno accusing Nancy of killing their mother.
Moreno filed a motion to suppress evidence in which he claimed that law enforcement
officers violated his Fourth Amendment protections when they received the real-time CSLI data
from Moreno’s wireless provider without first obtaining a search warrant. Moreno argued that
while Carpenter v. United States, 138 S. Ct. 2206 (2018), had addressed historical CSLI, not
real-time data, Carpenter’s holding applied to real-time data. Moreno sought to exclude physical
evidence and statements derived from the search.
The Commonwealth argued that the police already had the license plate information and
were aware that the car belonged to Nancy and that the driver had fled the scene. Additionally,
the police were already aware that Moreno’s photo fit the description of the driver provided by
the witnesses. The Commonwealth further argued that even if Carpenter were applicable,
probable cause and exigency excused the search warrant requirement. Subsequently, the trial
court denied the motion to suppress finding probable cause and exigency justified obtaining the
CSLI data without a warrant.
Moreno was convicted of first-degree murder and felony hit and run by a jury which
sentenced him to thirty-eight years in prison. This appeal followed.
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ANALYSIS
Moreno contends that the trial court erred by denying his motion to suppress.
Specifically, Moreno does not challenge that the police had probable cause, but rather, he
contends that the trial court erred by finding that exigent circumstances justified the warrantless
search.
On review of the trial court’s denial of a motion to suppress, an “appellant bears the
burden of establishing that reversible error occurred.” Williams v. Commonwealth, 71 Va. App.
462, 474 (2020) (citing Glenn v. Commonwealth, 275 Va. 123, 130 (2008)). “This Court is
‘bound by the trial court’s findings of historical fact unless plainly wrong or without evidence to
support them.’” Id. at 475 (quoting Matthews v. Commonwealth, 65 Va. App. 334, 341 (2015)).
“However, the Court reviews de novo the overarching question of whether a search or
seizure violated the Fourth Amendment.” Id. (citing Glenn, 275 Va. at 130). Additionally, “our
review includes evidence presented at both the suppression hearing and the trial.” Id. (citing Hill
v. Commonwealth, 297 Va. 804, 808 (2019)).
At the hearing on Moreno’s motion to suppress, Coderre testified that Washburn gave her
a description of Moreno and the RAV 4 shortly after the collision. After comparing Washburn’s
description to Moreno’s DMV photo, Coderre suspected that Moreno had been the driver of the
RAV 4. Coderre also knew that Washburn had pursued Moreno and tried to stop him by
“honking his horn and flashing his lights,” but Moreno disregarded Washburn and continued
driving.
Following the report of the collision, an officer drove to Moreno’s residence, but he was
not there. Coderre also called and texted Moreno’s phone, but Moreno did not respond.
Consequently, Grimsley obtained the real-time CSLI data of Moreno’s cell phone through the
service provider and located him at a casino in Maryland. The trial court denied Moreno’s
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motion to suppress, finding that probable cause and exigent circumstances justified the search of
Moreno’s CSLI data.
“[A]n individual maintains a legitimate expectation of privacy in the record of his
physical movements as captured through” cell-site location information. Carpenter v. United
States, 138 S. Ct. 2206, 2217 (2018). Therefore, the Supreme Court of the United States has
held “that accessing seven days of CSLI constitutes a Fourth Amendment search.” Id. at 2217
n.3. Consequently, “the Government must generally obtain a warrant supported by probable
cause before acquiring such records.” Id. at 2221.
Moreno argues that this holding also applies to the acquisition of real-time cell-site
location information. However, the Supreme Court in Carpenter specifically declined to express
a view on “real-time CSLI” such as that information at issue in this case, describing its decision
as “a narrow one.” Id. at 2222. Consequently, even assuming without deciding that the
acquisition of real-time cell-site location information generally requires a warrant, for the
following reasons we hold that probable cause and exigent circumstances justified the
warrantless “ping” of Moreno’s cell phone in this case.
“In the absence of a warrant, a search is reasonable only if it falls within a specific
exception to the warrant requirement.” Id. at 2221 (quoting Riley v. California, 573 U.S. 373,
382 (2014)). One well-recognized exception applies when “the exigencies of the situation,”
coupled with probable cause, “make the needs of law enforcement so compelling that [a]
warrantless search is objectively reasonable under the Fourth Amendment.” Id. at 2222 (quoting
Kentucky v. King, 563 U.S. 452, 460 (2011)).
Examples of “[s]uch exigencies include the need to pursue a fleeing suspect . . . or
prevent the imminent destruction of evidence.” Id. at 2223. Determining whether exigent
circumstances exist to justify a warrantless search is not based on a retrospective analysis of the
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circumstances; rather, the inquiry is focused on review of the “circumstances as they reasonably
appeared to trained law enforcement officers to exist when the decision to [search] was made.”
Robinson v. Commonwealth, 273 Va. 26, 41 (2007) (quoting Verez v. Commonwealth, 230 Va.
405, 411 (1985)). Factors relevant to determining exigent circumstances include:
the degree of urgency involved and the time required to get a
warrant; . . . the possibility of danger to others; . . . whether the
offense is serious, or involves violence; . . . [and] the likelihood of
escape if the suspects are not swiftly apprehended.
Commonwealth v. Campbell, 294 Va. 486, 495 (2017) (quoting Verez, 230 Va. at 410-11).
Here, the circumstances in this case, as they reasonably appeared to law enforcement,
rendered the warrantless search of Moreno’s CSLI data objectively reasonable under the Fourth
Amendment. Specifically, this is the type of exigent circumstance referred to by the United
States Supreme Court in Carpenter. See Carpenter, 138 S. Ct. at 2223 (“While police must get a
warrant when collecting CSLI to assist in the mine-run criminal investigation, the rule we set
forth does not limit their ability to respond to an ongoing emergency.”).
Moreno was not at his residence, and he did not respond to Coderre’s call or text
message. Thus, when law enforcement obtained the CSLI data, they “need[ed] to pursue” what
reasonably appeared to be “a fleeing [murder] suspect.” Id. Moreover, Moreno had possession
and control of a significant piece of evidence—the RAV 4—and every minute that passed
afforded Moreno the opportunity to hide or destroy that evidence and evade apprehension. See
Evans v. Commonwealth, 290 Va. 277, 287-88 (2015) (“If the defendant himself has the power
to destroy the evidence, the courts assume that he is likely to avail himself of the opportunity.”
(quoting Ronald J. Bacigal, Virginia Practice: Criminal Procedure § 4:22, at 119-20 (2014-2015
ed.))).
As such, we hold that the acquisition of real-time CSLI data to locate a fleeing murder
suspect in an exigent circumstance is permissible under Carpenter. Accordingly, the trial court
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did not err by finding that exigent circumstances justified the warrantless search of Moreno’s
CSLI data.
CONCLUSION
The trial court did not err when it denied the motion to suppress by finding that exigent
circumstances justified the warrantless search of the real-time CSLI data. Accordingly, we
affirm.
Affirmed.
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