Defense attorneys claimed there were two improper search and seizures were executed against a defendant accused of fatally shooting a victim 12 times during a hearing on Oct. 31 before DC Superior Court Judge Todd Edelman.
Joshua Franklin, 40, is charged with first-degree murder while armed, possession of a firearm during crime of violence and unlawful possession of a firearm for his alleged involvement in the fatal shooting of 32-year-old Andrew Session on the 4400 block of 3rd Street, SE, on Jan 21, 2021.
Each of the charges has an enhancement because the offenses were allegedly committed during Franklin’s release for a prior conviction.
According to court documents, Session was found in an apartment building stairwell with 12 bullet wounds on his head, torso and legs.
During the hearing, defense attorney Joseph Yarbough argued that the prosecution did not meet its burden in proving police were legally justified under the Fourth Amendment against illegal search and seziure in Franklin’s traffic stop, subsequent arrest, search of his vehicle, and seizure of his phone from the vehicle was constitutional.
In his testimony, a detective explained that the traffic stop was conducted due to a “be on the look out” (BOLO) notification issued by MPD. The officer testified that he was not personally aware of the BOLO himself and that his colleague later told him when they exited their vehicle that he recognized the vehicle from the BOLO.
Yarbough argued the prosecution has to prove that the BOLO was constitutional. While a BOLO can be used as reasonable suspicion to begin a traffic stop, the prosecution in court must investigate and prove that the BOLO itself was issued with reasonable suspicion.
Yarbough also cited DC Superior Court precedent that says that when the reasonable basis of an action originates from a separate act from an officer, that detective must testify in court.
The prosecution argued that the officers had sufficient reasonable suspicion based on the BOLO itself, which instructed them to pull over a vehicle that had markings like Franklin’s.
Yarbough argued that the seizure of Franklin’s phone from the center console of his vehicle was unconstitutional. He argued that Franklin never granted the officers permission to search his vehicle or seize his phone.
During his testimony, the detective said that Franklin was asking for his “personal property.”
Yarbough emphasized that the search warrant to extract data from Franklin’s phone does not justify the seizure of his phone from the vehicle because it was issued after officers took it.
The prosecution objected to this argument saying that DC Superior Court Judge Anthony Epstein already ruled that the warrant to search his phone was valid. Therefore, the prosecution argued that the defense can no longer call into question the search of his phone.
Yarbough responded that he was not calling into question the search of the phone but instead the search of the vehicle and the seizure of the phone from the vehicle.
The prosecution argued that the BOLO itself is sufficient to justify the search of the vehicle and the seizure of the phone because it instructed officers to extract all technology from the suspect. They also emphasized that the search of the phone only took place after a warrant was issued by the court.
Defense attorney Emma Mlyniec delivered a second constitutional argument that the prosecution conducted an improper search of Franklin’s daughter’s phone.
She called a Public Defender Service Investigator to testify to an interview conducted with Franklin’s daughter. The witness testified that the daughter’s phone was given to her by Franklin and that Franklin pays the phone bills.
Mlyniec argued that Franklin has a privacy interest in the phone because he pays for the phone’s use. She argued that Franklin has a “reasonable expectation of privacy” because parents have control over their children’s belongings, especially when they pay for them. Like a shared car, Mlyneic argued that Franklin was an authorized user of the phone.
The prosecution argued that Franklin’s daughter granted permission to search the phone and that only she uses it. Because there is no evidence that Franklin has control over or access to the phone, it cannot be argued that he is like an “authorized user” simply because he pays for the phone.
Judge Eldenman took the arguments under submission.
During the hearing, Yarbough also accused the prosecution of withholding Brady material, or evidence that could be favorable to the defense. Judge Edelman explained that the prosecution is waiting for a protective order, which would restrict the sharing of the evidence.
Parties are slated to reconvene Feb. 6.
