ALBUQUERQUE, N.M. — Albuquerque police might never have found 19-year-old Mary Hawkes in the early morning hours before she was fatally shot by an officer had they not searched a cell phone found in a stolen truck Hawkes had abandoned.
Whether that search was proper is questionable, some attorneys now say.
Hours before she was shot and killed by police on April 21, Hawkes pulled up to a stoplight in southeast Albuquerque at 3 a.m. with the window rolled down on the stolen truck she was driving.
“Hi,” she said to Albuquerque Police Department officer Sonny Molina, who was stopped at the light next to her. “Hi,” he replied.
Three hours later, the teen, suspected of having stolen the black Ford F-150, was shot and killed by officer Jeremy Dear after police said she pulled a gun on him while running along a nearby trailer park’s graffiti-covered wall. The case has been especially controversial because there is no lapel camera video of the shooting.
Officers had identified Hawkes that morning by looking at her Facebook page on her phone, which was found in the center console of the truck, according to new details in a search warrant affidavit for the phone’s data.
The search warrant was executed 10 days after the incident and filed in District Court in August, so Molina didn’t have a search warrant when he scrolled through Hawkes’ profile pictures and looked at her email address. The search is how police found an address for her at the trailer park where she was later shot and killed.
A legal scholar says that search may not have been constitutional.
“Old-fashioned Fourth Amendment law has established when there are no exigent circumstances law enforcement must seek a warrant,” said Gloria J. Browne-Marshall, associate professor of constitutional law at John Jay College in New York City. “It doesn’t appear there were exigent circumstances in this case.”
She said it’s a tricky scenario that needs to be clarified by the courts.
Others say a violation of Hawkes’ constitutional rights could form the basis of a civil lawsuit against the city and officers.
Local attorney Shannon Kennedy said she would argue that the city’s negligence in training officers about the search of cell phones, among other things, led to Hawkes’ death.
“If the city would just adequately train these officers, we wouldn’t have so many deaths,” Kennedy said.
Janet Blair, spokeswoman for APD, said the department has no specific policies on searching cell phones. She wouldn’t comment on whether the officer’s search was constitutional, citing an ongoing Internal Affairs investigation into the fatal officer-involved shooting. But she did confirm last week that Molina’s warrantless search of the cell phone is part of the IA investigation.
Hawkes’ family attorney, Greg Gaudette, had a different concern about the warrant. He said he thinks police got it because she was killed, not because she was suspected of stealing the truck. A violent crimes detective drafted the warrant — not the responding officer or an auto theft detective. Another warrant for Hawkes’ Facebook page was signed a month after the shooting.
“I seriously doubt the purpose of this warrant was to crack some sort of car theft ring,” Gaudette said Thursday. “I think this is a subterfuge to get at information involving her death. We want law enforcement to do their job and impartially investigate. Maybe this is the way it’s done, but it seems to me that nobody’s putting all their cards on the table. They’re not being very transparent.”
According to the warrants, after Hawkes and Molina said “hi” to each other, Molina said she seemed “hesitant” about where she was going. The officer ran a check and found the truck’s license plate didn’t show up in the state’s motor vehicle database, raising his suspicions. He said he drove after it and spotted it backing out of a driveway two blocks away. He saw it jump the curb and stop. When he shined a spotlight on the vehicle, he saw it was empty.
Molina verified the truck had been reported stolen on April 10, and the owner came to pick it up where it was stopped on Charleston SE. The officer saw the cell phone in the console, but the owner said the phone wasn’t his. Molina picked it up and found it was logged into Hawkes’ Facebook account, which states her name as “Mary Daboss” and lists her email address. He verified the truck driver was Hawkes by looking at her profile pictures and checking police databases. Hawkes also had sent several Facebook messages about the truck.
“I have a G ride, I need to (sell) it … I have a nice ass truck, need to (sell) it fast,” reads one of the messages, according to the warrant.
Police later downloaded data from the phone and from Hawkes’ Facebook profile, though the warrants don’t say what that data revealed. The affidavit doesn’t give any detail about what happened after the truck and cell phone were found by police.
The question of whether Molina violated Hawkes’ constitutional rights by searching her phone is complicated by a recent U.S. Supreme Court decision, Riley v. California, which determined that officers must get a search warrant before looking through a cell phone during an arrest. That decision was handed down two months after Molina searched the cell phone, and how it would apply in that instance is unclear.
Local defense attorney Jeff Buckels said he thinks the ruling simply clarified existing law and that the officer needed to get a warrant.
“That’s a bad seizure, it’s not even close,” he said. “They have to get a damn warrant if they can.”
But Browne-Marshall said that because the law wasn’t clear before Riley v. California, Molina may not have known what was constitutional. “Confusion of the law is an excuse,” she said. “It could be that the officer was unsure about cell phones and the Fourth Amendment.”
Blair said although APD has no policy on cell phone searches, the department was adhering to the standards outlined in Riley v. California before the court’s decision.