Warrant justified: Prosecutors score win in Hernandez case

A judge ruled Monday that a search warrant allowing investigators to take evidence from Aaron Hernandez's home surveillance system and cell phone was justified.

Dominick Reuter/AP

Prosecutors won a partial victory Monday when a judge ruled that the seizure of two computer hard drives and a cell phone from Aaron Hernandez’s home were proper — and that the evidence on them can be used in a murder trial looming for the former football star.

That evidence includes images taken from the surveillance system at Hernandez’s North Attleboro, Mass., home that prosecutors allege show him with a pistol just minutes after Odin Lloyd was gunned down in a secluded field less than a mile away.

In her ruling, Judge E. Susan Garsh concluded that the search warrant was justified and that investigators were proper in confiscating two computer hard drives that were part of the home surveillance system at Hernandez’s mansion. She also ruled that Massachusetts state troopers were proper in taking a single cell phone.

Investigators had sought the warrant in their effort to reconstruct Hernandez’s movements around the time of the killing – and to obtain information about whether others were involved and, perhaps, even whether they could determine how the driver’s side mirror was damaged on a rented Nissan that was allegedly used in the killing.

“There was a reasonable basis for inferring that the home surveillance system likely captured the images of whoever entered, left and returned to Hernandez’s house in the hours immediately before and after the shooting as well as images of the silver 2012 Nissan Altima,” Garsh wrote. “There was thus probable cause to believe that the surveillance system would contain important evidence about what time Hernandez left the house that night, who else was with him, whether Hernandez or others were carrying any item consistent with a firearm when they left the house, whether the mirror on the rental vehicle was missing before Hernandez left to pick up Lloyd, and what time he, and perhaps others, returned.”

However, Judge Garsh held off on ruling whether prosecutors were justified in taking a second cell phone and three iPads during their search of Hernandez’s home on June 18, 2013.

Hernandez, the former New England Patriots Pro Bowl tight end who has been behind bars for more than a year, faces a trial scheduled to begin Oct. 6 in Lloyd’s slaying in North Attleboro – and a separate indictment for the killings of two men in South Boston on July 16, 2012.

The Lloyd case is complicated. Prosecutors have alleged that Hernandez summoned two friends from his hometown of Bristol, Conn., to meet him in North Attleboro and at the same time was making arrangements to pick up Lloyd in Boston. According to court documents, investigators believe Hernandez and the other two men, Carlos Ortiz and Ernest Wallace Jr., drove to the Dorchester section of Boston, picked up Lloyd and then drove him back to North Attleboro.

Ortiz and Wallace have both also been charged with murder.

Prosecutors have said in court that Hernandez “orchestrated” Lloyd’s killing, but they haven’t revealed their theory of the case – and they don’t have to until they get before a jury.

A separate motion, that seeks to have all the charges against Hernandez dismissed, is also pending. In justifying that motion, Hernandez’s lawyers argued that prosecutors inundated a grand jury with damaging information – that the former player smoked pot, for example, and that his cousin refused to testify – that cast him in a negative light but did nothing to establish that there was strong evidence showing he had killed Lloyd, 27.

As for the search warrant, Hernandez’s lawyers argued that there was not enough evidence tying him to a crime to justify the warrant. They raised questions about information used in the warrant that was provided by Hernandez’s fiancée, Shayanna Jenkins. They asserted that the warrant didn’t provide legal justification for the seizure of three iPads and two cell phones that were taken in addition to the hard drives from the home surveillance system.

On the night Lloyd’s body was found, Jenkins drove Hernandez to the police station in North Attleboro so he and his attorneys could meet with detectives. As she was driving away from the station, police officers flashed their lights at her, and she pulled over and spoke with them – and some of her statements were included in the affidavit used to obtain the search warrant. She told them, for instance, that a home surveillance system had recently been installed in the home she and Hernandez shared.

Hernandez’s lawyers argued that the stop of Jenkins was unlawful – that she was suspected of no crime, and she was, in effect, pulled over and detained by officers.

Prosecutors, however, countered that the officers had merely used their lights to get Jenkins’ attention, that she was free to leave throughout the time she was talking to officers and that there was nothing about the stop that was improper.

Judge Garsh, in fact, ruled that the stop was improper. However, she also wrote that a trooper’s “conduct in pulling over Jenkins and asking to speak with her does not … constitute serious, distinctly egregious misconduct.”

In the end, Garsh decided not to “excise information obtained from Jenkins from the search warrant affidavit.”

The pending question – whether detectives were proper in taking another cell phone and three iPads – is the subject of ongoing legal argument. At issue is confusion between the language in the affidavit – essentially a sworn statement filed by a law officer to obtain a warrant – and in the warrant itself.

In this case, the affidavit spoke of allowing detectives to “seize the video surveillance system” in Hernandez’s home as well as “any electronic data stored as part of the video surveillance system to include but not limited to hard drives, external storage devices, compact discs, computers, laptops, flash drives or any other data storage device used for storing and viewing video data from the residential surveillance system.”

The affidavit separately sought a warrant for one cell phone – specifying it by its number.

The warrant itself listed the video surveillance system, including “components used at the residence” and that single cell phone.

At a hearing in June, Judge Garsh questioned whether the warrant authorized the seizure of those additional tablets and the other phone, asking whether affidavit was “incorporated by reference” and physically attached to the warrant. Absent that, she said the warrant would “suggest” to her that the judge who signed it had authorized officers to take only that one specific phone.

Prosecutors countered with an argument of their own – that the phones and the iPads could be considered storage devices for the home security system and that the warrant and affidavit were, in effect, one in the same.

It is not clear when Garsh will rule on those other questions. She may decide at a hearing scheduled Aug. 11 whether the trial will start in the Lloyd case in October or whether it will be pushed pack, possibly to January 2015.

Separately, Hernandez faces a trial, now scheduled for May 28, 2015, in the 2012 killings of Daniel de Abreu, 29, and Safiro Furtado, 28, in Boston.

Prosecutors there allege that Hernandez gunned down the two men and wounded a third after a dispute at a night club that allegedly began when de Abreu allegedly bumped the player on a dance floor and spilled his drink.

And he’s facing civil lawsuits filed by the families of Lloyd, de Abreu and Furtado and another filed by a former associate who has accused Hernandez of shooting him in the face after a dispute in Florida.