Murder prosecution hung up by detectives’ alleged cell-phone search

Results of a police search of a cell phone will not be introduced as evidence in a murder case because prosecutors contend two Philadelphia homicide detectives conducted the search without a warrant.

In a hearing Thursday, Patricia Cummings, supervisor of the district attorney’s Special Investigations Unit, which investigates alleged police misconduct, told Common Pleas Court Judge Barbara McDermott that prosecutors had “no choice but to concede” the cell-phone evidence in the case of Marquise Noel.

Cummings said prosecutors had carefully reviewed video that showed Detectives Freddie Mole and Joseph Murray looking at a black LG flip phone inside Penn Presbyterian Medical Center on Feb. 11, 2018. She also said prosecutors had interviewed the detectives about what they were doing with the phone and found their explanations not credible.

Text messages on the phone linked Noel to a fatal shooting earlier that day in Southwest Philadelphia, Anthony Voci, the district attorney’s homicide chief, told the judge. Although the evidence can’t be used against Noel, Voci said prosecutors would be prepared to try Noel on murder charges in June based on other evidence and further investigation. “Regardless of what evidence can be produced at trial, we do not stick our head in the sand when it comes to ... justice and the protection of the public,” Voci said.

Gregory Pagano, an attorney representing the detectives, said Thursday that Mole and Murray, in a meeting earlier this week with Cummings and others in the District Attorney’s Office, had “told them the truth.”

Pagano, who attended that meeting, said Mole had the phone at the hospital and was trying to put the older-model flip phone into airplane mode, pursuant to best practices in law enforcement, so that someone could not remotely erase information. He said that at one point, Mole had called Murray over to look at the phone to see if it was in airplane mode. Pagano said they were not conducting a search of the phone.

Noel’s attorney, Bill Davis, has argued that the cell-phone messages were the only real evidence that prosecutors had against his client. He argued Thursday that without the messages, prosecutors don’t have sufficient evidence to keep Noel, 22, of Southwest Philadelphia, in jail.

The judge ruled that she would hold a supplemental preliminary hearing Feb. 25 to hear other evidence to decide whether Noel should remain locked up.

The case drew media attention after Cummings and District Attorney Larry Krasner, a former defense attorney who sued police 75 times, filed a motion Dec. 20 detailing the alleged unconstitutional cell-phone search and seeking to disqualify Davis from the case.

Prosecutors contended that Davis had sought a plea deal so that the hospital video would not be made public and the detectives “depicted would not be embarrassed” or their careers jeopardized. They alleged that Davis’ behavior resulted from his firm’s having a contract to represent police officers accused of misconduct.

Davis, who had obtained the hospital video, has said there was no such quid pro quo. He has said that during Dec. 19 phone conversations with Voci about the video, Voci had first suggested a plea offer for Noel in the mitigated range of the sentencing guidelines for third-degree murder.

Davis has said he told Voci that he knew the detectives and that if he and Voci could “resolve this case without destroying anyone’s life or career, that I would like to.” Davis told McDermott at a hearing Jan. 18 that he didn’t ask for the video to be kept confidential.

The detectives were at the hospital Feb. 11, 2018, to investigate the fatal shooting of Tafari Lawrence, 23. Noel was there for a gunshot wound to a leg, having arrived by private vehicle. He told detectives he was shot in a location different from that of the fatal shooting.

Authorities contend that the cell phone, found in a bag at the hospital, was Noel’s. Davis has said he has seen no evidence that the phone was his client’s.

Murray obtained a search warrant for the phone later that day. At a preliminary hearing in April, Mole testified that he didn’t search the contents of the phone until after he was back at Police Headquarters and had gotten the search warrant.