STATE OF NORTH CAROLINAWAKELON COUNTY

ERIC ALAN MILLER, Plaintiff, v.

ANN MARIE MILLER, Defendant.

)))))))

IN THE GENERAL COURT OF JUSTICE DISTRICT COURT DIVISION FILE NO: 14 CVD 9999

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION IN LIMINE

INTRODUCTION

In its underlying action, Ann Marie Miller, Defendant, moved to exclude evidence of a

text message recovered from her cell phone from the custody hearing scheduled for November

24, 2015. Eric Alan Miller, as Plaintiff submits this memorandum by and through counsel in

opposition to Defendant’s motion. The exclusionary rule for illegally obtained evidence does not

apply to civil proceedings. Additionally, the exclusionary rule does not apply to an illegal search

by a private party. Finally, the text message evidence is an opposing party’s statement under

Rule 801 (d) (2) (A) and is therefore not hearsay.

FACTUAL ALLEGATIONS

Plaintiff and Defendant are married with two minor children. On or about March 10,

2014, Plaintiff observed Defendant touching the food on his dinner plate. After consuming the

food, Plaintiff experienced a sudden drop in blood pressure, and was unable to walk. There were

several other instances during 2014 where Plaintiff experienced similar symptoms after eating

food and drink prepared by Defendant. On some occasions, Plaintiff passed out and did not

regain consciousness until the following morning, with no recollection of the previous evening.

Defendant is suspected to have been visiting her colleague, Darryl Willard, at his hotel room

during Plaintiff’s periods of unconsciousness, leaving their two minor children in his care. On

other occasions, Defendant has given the minor children pharmaceutical drugs for the purpose of

inducing them into heavy sleep. In an act of desperation, Plaintiff sought help from his friend,

Arrington Dunn, to determine whether Defendant was attempting to poison him and their

children, Dunn, a data forensics expert, was able to retrieve a text message from Defendant’s cell

phone in December 2014. The text message, sent to a number known to belong to Darryl

Willard, read, “[Plaintiff] is lucky I haven’t poisoned his crazy ass yet!”

On January 6, 2015, Plaintiff filed for a Domestic Violence Protective Order against

Defendant based on his suspicion that Defendant was trying to poison him and their two minor

children. Upon making a finding of domestic violence, the Honorable Judge Harvey Grant

granted the protective order and awarded Plaintiff temporary custody of the minor children.

Since January 6, 2015, Plaintiff and the two minor children have resided at his mother’s

residence at 3977 Tumbleweed Drive, Wendell, NC 27599. Since January 6, 2015, Defendant

has continued to reside in the marital residence, at 6844 Latigo Lane, Wendell, NC 27599. On

September 30, 2015, Plaintiff filed for permanent custody of the two minor children. On October

26, 2015, Defendant filed a Motion in Limine requesting that the court exclude any and all

evidence relating to the text message found on Defendant’s phone from the custody proceeding.

Defendant asserts that the text message evidence is inadmissible because: 1) it was illegally

obtained; and 2) because it is hearsay not falling within any exception.

ARGUMENT

I. EXCLUSIONARY RULE DOES NOT APPLY TO CIVIL PROCEEDINGS

In her brief, Defendant contends that the court sanctions application of the exclusionary rule

of evidence in civil proceedings where the evidence has been obtained illegally and in violation

of fundamental fairness. Defendant cites INS v. Lopez–Mendoza,   468 U.S. 1032, 104 S.Ct. 3479,

82 L.Ed.2d 778 (1984) in support of her argument. Defendant’s reliance on INS v. Lopez-

Mendoza is misplaced. The court’s ruling was clear when it affirmed the traditional notion that

the exclusionary rule does not apply to civil proceedings.

In INS v. Lopez-Mendoza, the defendant in a civil deportation proceeding attempted to

suppress evidence of his confession to an immigration agent that he was in the country illegally.

The court was clear in its position that the exclusionary rule was intended for criminal

prosecutions only. While admitting that it could be applied to a civil deportation proceeding

under extraordinary circumstances where its application would add significant protection to

Fourth Amendment rights, the opinion states that in this instance, that was not the case. Rather

than punishment for a past act, the deportation hearing related solely to deciding whether or not

the defendant could remain in the United States. The court determined that suppression of the

defendant’s confession would allow him to continue breaking the law, a purpose for which the

exclusionary rule was never intended. Id.

Like INS v. Lopez, the case at bar deals with an attempt to suppress a statement from a civil

proceeding that will determine a future arrangement (custody of the minor children) rather than

punish an illegal past act. Suppressing the statement in the form of a text message recovered

from Defendant’s phone would potentially allow for the continuation of the endangerment of

minor children. Any and all evidence of a parent’s behavior and moral character are relevant in

determining whether or not that parent should be granted custody of minor children. Therefore,

the text message recovered from Defendant’s cell phone should not be excluded from the

hearing.

II. THE EXCLUSIONARY RULE DOES NOT APPLY TO SEARCHES BY A

PRIVATE PARTY

In her brief, Defendant contends that the exclusionary rule should eliminate all evidence

related to the text message recovered from her cell phone because it was illegally obtained.

Defendant’s argument is without merit. In addition to not applying in civil proceedings, the

exclusionary rule does not apply to evidence obtained through a search by a private party. This

rule has been formally established since 1921. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct.

574, 13 A.L.R. 1159, 65 L.Ed. 1048 (1921).

In Burdeau v. McDowell, the defendant was a manager for a gas company. Burdeau v.

McDowell, 256 U.S. 465, 41 S. Ct. 574, 13 A.L.R. 1159, 65 L.Ed. 1048 (1921). Suspecting him

of fraud, the gas company sent another one of its employees to search the defendant’s office for

evidence of fraud. Id at 473. Evidence of fraud was indeed found and later turned over to

detectives. Id. The defendant alleged that any evidence found during the search by the employee

of the gas company should be excluded as it was in violation of his Fourth Amendment

protection from unlawful search and seizure. Id at 474. The court determined that protection

from unlawful search by private parties was outside the scope of the Fourth Amendment

protections, which was meant to apply to state actors. Id. Therefore, the exclusionary rule did not

apply and the Court of Appeals’ former ruling to exclude the evidence was reversed. Id. At 476.

To date, this ruling has not been modified or overturned.

In the current case, like Burdeau the evidentiary dispute involves damaging evidence

obtained against a party (Defendant) without that parties’ permission by a private actor

(Plaintiff). Since Plaintiff at no relevant time was acting on behalf of the government, the

exclusionary rule should not apply to the evidence he obtained from Defendant’s cell phone.

III. THE TEXT MESSAGE IS A STATEMENT BY AN OPPONENT PARTY AND IS

THEREFORE NOT HEARSAY

In her brief, Defendant contends that the text message evidence obtained from her cell phone by

Plaintiff is inadmissible under the rule against hearsay. Plaintiff’s classification of this evidence as

hearsay is misplaced. Rule 801(d) (2) (A) of the Federal Rules of Evidence states that an opposing

party’s statement offered against an opposing party that was made by the party in an individual or

representative capacity is not hearsay.

A text message qualifies as a statement under Rule 801(a), which indicates that a statement

may be a person’s written assertion. Fed. R. Evid. 801(a). Plaintiff intends to offer this statement

against Defendant in the custody hearing. Upon information and belief, Defendant herself is the

person who generated and sent the text message. Therefore, the text message is not hearsay under

Rule 801 (d) (2) (A) and should not be excluded from the hearing.

CONCLUSION

WHEREFORE, Plaintiff prays this court to exercise its discretion and make an order absolutely

allowing said offer or reference.

This, the 24th day of October, 2015.

STONE LAW, P.A.

________________________________Dana StoneAttorney for Defendant620 Nelson StreetDurham, NC 27701(919) 612-6794

CERTIFICATE OF SERVICE

The undersigned hereby certifies that she is an attorney at law licensed to practice in the State of North Carolina, is attorney for Defendant, and is a person of such age and discretion as to be competent to serve process.

That on October 29th, 2015, she served a copy of the foregoing DEFENDANT’S MOTION IN LIMINE and BRIEF IN SUPPORT OF DEFENDANT’S MOTION IN LIMINE by placing said copy in a postage prepaid envelope addressed to counsel of record hereinafter named at the last known address, and by depositing said envelope and its contents in the United States Mail at Durham, North Carolina:

John JacksonAttorney for PlaintiffJackson Law Offices1250 Sage Green Ct.Raleigh, NC 27610

______________________________Dana StoneAttorney for DefendantStone Law, P.A.1300 Tribute Center Drive Suite 237Raleigh, NC 27612Telephone: (919) 62-6794Facsimile: (919) 899-6312