Tuesday April 30, 2013

BRATTLEBORO -- Attorneys for a man accused of killing a Brattleboro woman in 2011 should have their request for the suppression of evidence denied, wrote Paul Van de Graaf, First Assistant and Criminal Chief for the U.S. Attorney for the District of Vermont, in filings to the U.S. District Court.

Last month, attorneys for Frank Caraballo filed documents with the court alleging law enforcement officials had violated Caraballo's Fourth Amendment rights when they "pinged" his cell phone on July 29, 2011, in an attempt to locate him.

Vermont State Police troopers were looking for Caraballo following the discovery of the body of Melissa Barratt in the woods off of East West Road in Dummerston that same day.

Frank Caraballo, 29, of Brattleboro
Frank Caraballo, 29, of Brattleboro
He was a suspect because he had been under surveillance for several months preceding Barratt's death; investigators had conducted a number of controlled buys of crack cocaine with a confidential informant involving Caraballo or his associates, according to court documents. Following one of those controlled buys, Barratt was arrested on July 17, 2011. She told investigators that she feared if she cooperated with police, Caraballo would kill her.

Though Barratt gave officers Caraballo's name, she refused to cooperate further in the investigation. The federal prosecutor alleges Caraballo shot Barratt because he suspected her of stealing drugs from him.


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In mid-March, Caraballo's attorneys asked the federal court to throw out any evidence obtained as a result of what they termed the unconstitutional pinging of Caraballo's mobile phone.

Police "indiscriminately searched everywhere ... without any link between Mr. Caraballo's location and his alleged activity," they wrote. "This is exactly the type of general exploratory search that the Fourth Amendment prohibits."

However, wrote Van de Graaf, current case law indicates strong support for the short-term collection of phone location information. In addition, following the investigation of Caraballo, officers had enough information to arrest him for drug distribution, thus meeting the probable cause standard.

The court also needs to take into account the search for Caraballo immediately followed the discovery of Barratt's body, he wrote.

"Caraballo was a suspect in the Barratt murder, and law enforcement had public safety concerns, including others being possible targets of Caraballo's violence," wrote Van de Graaf, adding there was also a concern about the destruction of evidence related to Barratt's death. During a hearing in Montpelier in February, Caraballo's attorneys told the Reformer that investigators did not find in their client's possession the murder weapon, which has not yet been found.

Van de Graaf also contends that Caraballo had no reasonable expectation of privacy as he was traveling on public roads when his phone was pinged by his carrier at the request of police.

"In the hot mix of guns, murder and drug trafficking, the police should have latitude to protect the public from armed suspects," wrote Van de Graaf.

In a related filing, the U.S. Attorney's Office also opposed the defense's request for a change of venue. Caraballo's attorneys had argued that it would be impossible for him to get a fair trial in Vermont due to the amount of prejudicial media coverage following the discovery of Barratt's body.

However, Van de Graaf noted that press coverage has been "sporadic and concentrated to certain time periods in 2011 and 2012."

In addition, he wrote, the defense has not demonstrated "that the community has been so saturated with inflammatory pretrial publicity that it would pervade the proceedings and override notions of fairness in the determination of guilt or innocence."

The court also should consider the fact that if Caraballo's case makes it to trial, it will be held in Rutland and the jury pool will not come from Windham County, wrote Van de Graaf.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.