WILKES-BARRE — The defense in a 2017 homicide is looking to suppress evidence gleaned from cell phones by state police investigating the case.
Antoine McNeal, 34, appeared in court on Wednesday before Luzerne County Judge Tina Polachek Gartley. McNeal is accused of fatally shooting Brandon Smith, 20, while Smith sat in a van outside a Nanticoke home on Jan. 18, 2017.
Thursday’s hearing centered around a trio of cell phones taken into evidence after Smith’s death.
Trooper Edward Urban testified at the hearing, saying one cell phone, a flip phone identified to be Smith’s, was recovered from the van Smith was shot in.
Two more cell phones were also found in the van. Both were smart phones; one was identified as being Smith’s, and the other was discovered to belong to Wakeelah Moore, McNeal’s girlfriend.
But it’s the ways in which the phones were identified and what was done with them afterward that Demetrius Fannick, McNeal’s attorney, took issue with.
After Smith’s death, investigators turned his flip phone on and saw he had been texting with an unknown number in the pursuance of setting up a drug deal, Urban said.
The other phone was identified when investigators called the unknown phone number, and the phone began ringing.
Fannick argued that investigators did not have either a warrant or permission from Smith — since he was dead — to go through the phone, and made a similar argument about the smart phone.
“You do not have a warrant, you do not have consent, and you made a decision to power on the phone to get information about the number of the phone,” Fannick said to Urban. “Is that fair to say?”
“Fair to say,” Urban’s answer came.
Urban said there was no further investigation of the phone until after a search warrant was procured.
Gartley is giving the defense time to file a further brief, explaining why they believe the phone evidence should be suppressed. Fannick said he likely could have the brief filed by next Friday. Prosecutors would then have 10 days to respond.
McNeal’s trial was originally scheduled to begin on Oct. 15, but has been tentatively rescheduled to Dec. 3, allowing all parties more time to prepare.
Reach Patrick Kernan at 570-991-6386 or on Twitter @PatKernan