Mother of dead infant moves to suppress evidence in homicide

  • Appearing via a live video feed, Bradford Ross was arraigned in Concord’s district court on May 17, 2017. Ross and Kayla Austin each face felony charges of negligent homicide, manslaughter and prohibited conduct in connection with the death of their infant son in Penacook in August 2016. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz

Monitor staff
Published: 10/11/2017 12:01:29 AM

A Concord mother charged in the death of her 2-month-old son says evidence obtained during separate searches of her home and cellphone should be inadmissible at trial.

Kayla Austin, 21, is asking a Merrimack County Superior Court judge to suppress the evidence, which she argues was obtained unlawfully in search warrants that violated her constitutional rights.

Her attorney, Andrew Cotrupi of Hampton, maintains in related motions with the court that police did not have probable cause to search Austin’s residence in summer 2016 for drugs during an investigation focused on “the unexplained death of a child.” Further, he accuses police of seizing Austin’s cellphone as part of a “fishing expedition,” and then of holding on to it for months before obtaining a search warrant alleging probable cause for her arrest in the homicide.

Last summer, Austin was living with Bradford Ross and their two children in a travel camper parked on family property at 54 Penacook St. in the village of Penacook. Emergency personnel responded to that location on Aug. 1, 2016, after receiving a report of an infant who was unconscious and not breathing. The child later died at Concord Hospital.

The boy’s death remained under investigation until this past May, at which time prosecutors charged Austin and Ross with negligent homicide, manslaughter and prohibited conduct. Toxicology tests revealed methamphetamine in the boy’s blood and liver; the state medical examiner ruled his death a homicide by methamphetamine intoxication.

A day after the boy died, police executed a warrant to search the travel camper. They said they had observed drug paraphernalia in plain sight, but that the couple had not consented to a search without a court order.

Cotrupi argues in court documents that an unopened box of hypodermic needles and a pot pipe was not grounds for a full-fledged search. Further, he says, the request for a search warrant does not reasonably establish that the drug-related items sought would be located in the home.

“No drugs were observed, nobody appeared to be under the influence and no statements or evidence were obtained connecting the child’s condition in any manner to drug possession,” he wrote.

While police were on scene for the medical call, they had also asked Austin for consent to search her cellphone “to determine who contacted 911 and to determine if any other calls were made,” but she refused, Cotrupi said. As a result, the cellphone was seized for “exigency” reasons, he said.

“In this case, the legality of the initial seizure cannot be properly addressed as it appears completely without legal justification,” Cotrupi said. “No facts appear to suggest the phone was used in the commission of a crime when seized and no facts suggest the phone possessed evidence of a crime when seized.”

As of Tuesday, Deputy Merrimack County Attorney Catherine Ruffle, who is prosecuting Austin, had not responded to the motions to suppress. A hearing on the matter is scheduled for Dec. 19 in Concord.

Both Austin and Ross face separate charges alleging drug possession and distribution. All charges against Ross are still pending.

A five-day trial in the homicide case against Austin is scheduled for May 2018.

(Alyssa Dandrea can be reached at 369-3319, or on Twitter @_ADandrea.)

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