State v. Michael Rowe Russo, 157 Idaho 299

Background

Pre-dawn August 27, 2009: victim awakened by masked intruder with knife, was raped, assailant photographed her with a cell phone, and removed bedding; victim placed battery from her phone in panty drawer. Police quickly focused on Michael Russo (defendant).
Russo had a 1995 rape conviction and had previously consented to a computer search that revealed videos of violent rape and statements about rape fantasies.
Officers obtained an initial warrant to search Russo's residence and motorcycle (listing a "cellular phone" among items to seize). While awaiting service of that warrant, officers detained Russo at his mailbox, patted him down, seized a phone from his person, and Detective King opened and viewed the phone, observing a video appearing to show the victim.
After finding two phones in the apartment during the warranted search, police obtained an amended warrant expressly authorizing forensic searches of all three phones; the amended affidavit included information from the warrantless viewing.
Russo was indicted for rape, first-degree kidnapping, and burglary. He moved to suppress the phone video and challenged the warrants as misleading; he also objected to Rule 404(b) evidence. The district court denied suppression and admitted limited 404(b) evidence (his rape fantasies and pornographic images depicting forced sex). Jury convicted; Idaho Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of patdown seizure of phone	Patdown was lawful given reasonable suspicion defendant committed a violent felony earlier same morning	Russo argued patdown/search was unreasonable because he was not likely to still be armed and was handcuffed only after patdown	Patdown lawful: totality of circumstances supported reasonable suspicion he might be armed with a knife
Lawfulness of Detective King’s warrantless search of phone	State: contents were independently searchable because an amended warrant (later obtained) would have authorized the phone search	Russo: phone search was warrantless and contents used to obtain the amended warrant (tainted) so should be suppressed	Warrantless viewing was error but not fatal: after disregarding unlawfully obtained facts, the remaining affidavit provided probable cause for the amended warrant under the independent-source/inevitable-discovery framework
Use of unlawfully obtained information in amended affidavit	State: court should excise tainted statements and evaluate whether probable cause remains	Russo: State impermissibly relied on fruits of illegal search to obtain warrant	Held: Excising the tainted information still left sufficient probable cause; therefore evidence admissible
Admissibility of evidence of rape fantasies and rape-depicting pornography (I.R.E. 404(b) & 403)	State: evidence shows motive, intent, plan and is relevant to establishing offense context	Russo: such evidence is highly prejudicial and invites improper propensity inference	Held: Trial court did not abuse discretion — fantasies and porn were relevant to motive/plan and probative value was not substantially outweighed by unfair prejudice (most other proffered prior-act evidence excluded)

Key Cases Cited

Arizona v. Johnson, 555 U.S. 323 (reasonable-suspicion standard for frisks)
Ornelas v. United States, 517 U.S. 690 (reasonable-suspicion/probable-cause review framework)
Adams v. Williams, 407 U.S. 143 (purpose of patdown searches)
United States v. Cortez, 449 U.S. 411 (totality-of-circumstances test for reasonable suspicion)
Segura v. United States, 468 U.S. 796 (distinction between seizure and search; warrant seizure does not alone authorize search)
Nardone v. United States, 308 U.S. 338 (fruits of unlawful police conduct and proof from independent sources)
Nix v. Williams, 467 U.S. 431 (independent-source and inevitable-discovery doctrines)
Riley v. California, 573 U.S. 373 (cell-phone searches generally require a warrant)
State v. Johnson, 110 Idaho 516 (Idaho rule: excise tainted information and evaluate remaining probable cause for warrant issuance)
State v. Pepcorn, 152 Idaho 678 (I.R.E. 404(b) admissibility two-step analysis)