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From marijuana bust to electronic search: Did Tampa police go too far?

Tampa police also arrested Justin D. Murdock, 30, on a child porn possession charge.
Tampa police also arrested Justin D. Murdock, 30, on a child porn possession charge.
Published Mar. 5, 2016

TAMPA — Two days after Christmas, a Tampa police officer spotted an old Honda with an expired tag and stopped it on the Courtney Campbell Causeway.

Behind the wheel, police say, was a 30-year-old dishwasher from Tarpon Springs. An officer smelled marijuana, found a small container of the drug in wax form and a vaporizer used to smoke it. He arrested Justin D. Murdock on a possession charge, a misdemeanor that didn't land him in jail — he was simply given a notice to appear later in court.

But the investigation didn't end there. Citing the wax form of the drug and Murdock's "suspicious movements," Tampa police got a warrant, signed by a judge, to search a computer tablet found in his car. That turned up dozens of images of child pornography, and Murdock now faces 100 counts of possession of child porn, all felonies.

The case raises concerns about whether the police were justified in opening up Murdock's tablet, say several attorneys who reviewed the arrest report and warrant at the request of the Tampa Bay Times.

"I think it's pretty scary that anyone charged with misdemeanor marijuana possession would be subject to have their computer and tablet and phone searched," said Clearwater defense attorney Bjorn Brunvand.

Tampa police spokesman Steve Hegarty called the case an example of good police work and pointed to other details of the traffic stop that led officers to believe there could be evidence on the tablet.

According to the report, Officer Jody Farmer spotted Murdock's Honda Civic on the causeway just west of Rocky Point Drive about 1:45 a.m. Murdock was "very nervous," Farmer wrote. Another officer, Theodore Rametta, smelled marijuana from inside Murdock's car.

Rametta patted down Murdock and found the drugs in his pants pocket. Murdock admitted to using the vaporizer to smoke the paste, the report said.

Eight days later, Hillsborough Circuit Judge Denise Pomponio signed a warrant submitted by Detective Jeremy Larson. In the warrant, Larson wrote that Rametta observed Murdock making "suspicious repetitive movements to an area located under the driver seat." The RCA computer tablet was found "near the area (where) the driver was making the suspicious furtive movements," Larson wrote.

Marijuana paste or "wax" is a product that requires processing the plant to extract certain substances, the warrant states. Those circumstances, Larson wrote, led investigators to believe the tablet contained "data pertaining to the illegal use, distribution, and/or manufacturing of this unique form of marijuana." That could include contacts, images, photographs, chat content, emails, Internet history, text messages and call logs, he wrote.

The warrant also notes that Murdock had a prior drug paraphernalia possession charge in Pinellas County. Records show it was from 2006, a decade earlier.

The new drug arrest and Murdock's suspicious movements led investigators to believe that there might be valuable evidence on the tablet, Hegarty said.

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"The judge agreed," he said. "The fact that the tablet contained evidence of other crimes does not negate the suspicions of the officers at the scene that Mr. Murdock's 'suspicious furtive movements' indicated he had something to hide. Indeed he did. That's good police work and resulted in a significant arrest."

The Supreme Court has ruled that under most circumstances, individuals have a reasonable expectation of privacy surrounding the contents of their digital devices. Therefore, the Fourth Amendment requires law enforcement to secure a warrant to search a device even if the owner has already been arrested.

To establish probable cause to search an electronic device, law enforcement must show evidence connecting it to criminal activity, said Marc Pelletier, a former prosecutor who now does defense work. Mere suspicion or speculation is not enough.

"When a judge doesn't hold the police to that standard, they've failed," he said. "Just offering the generalization that drug traffickers or drug users use computer tablets is not enough to establish a connection."

He added: "This is a fishing expedition."

Brunvand said there's nothing in the warrant to suggest Murdock was involved in selling or processing marijuana wax.

"The fact that you have it doesn't mean anything other than you may consume it," he said.

Attorneys noted that the "furtive movements" Rametta saw are not explained in detail and were not mentioned in the arrest report. "You have a credibility problem now because something that's not in the police report is now in a warrant several days later," Pelletier said.

Murdock's attorney could argue there wasn't a legal basis for the search and file a motion to suppress the child porn evidence found on the tablet. If the warrant is ruled defective, the porn case could crumble.

"There's something about this case that doesn't smell right," said David Little, a St. Petersburg defense attorney. "I think at some point in the near future the two officers and Detective Larson are going to be on the witness stand to answer questions about how they arrived at this probable cause determination."

Murdock's attorney, Brett Szematowicz, declined to comment on specifics of the case or say whether he will file a motion to suppress. But he has concerns.

"We don't believe the search is as clear-cut as the Tampa Police Department makes it out to be," he said. "Just because they believe it's good police work doesn't mean it's legal police work. Everybody has a right to be free from illegal search and seizure."

Times senior news researcher John Martin contributed to this report. Contact Tony Marrero at tmarrero@tampabay.com or (813) 226-3374. Follow @tmarrerotimes on Twitter.

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