This post examines an opinion from the Supreme Court – Bronx County, New York: People v. English, 2016 WL 1424493 (2016). The opinion begins by explaining that
[o]n November 16, 2013, defendant was
arrested and charged in a felony complaint with attempting to kidnap and compel
then fourteen-year-old T.C. to engage in prostitution. Incident to defendant's
arrest, an Apple Iphone 4 was seized from his person. Later that evening, at
8:30 p.m., a Judge of the Criminal Court signed a search warrant that authorized
the search of the contents of the seized cellphone (Search Warrant B371–2013),
as well as a search warrant that authorized the search of the premises where
the incident took place—1995 Davidson Avenue, Apartment B2 (Search Warrant
B372–2013).
People v. English,
supra.
Next, the court explains that “[i]n pertinent part,” Search Warrant B372–2013
authorizes law enforcement to search
the cellphone seized from defendant at the time of his arrest and to acquire:
any and all numbers, text messages
(SMS), picture messages (MMS) and direct connect contained within said cellar
telephone which are believed to have been used in furtherance of the attempted
kidnaping of T.C., and any and all evidence tending to establish ownership of
the cellular telephone and connect persons to said cellular telephone.
The affidavit attached thereto, sworn
by Police Officer Johnny Chalen, states that defendant first met T.C. in
September 2013 in an online chatroom, that they exchanged text messages on
their respective cellphones, that on November 16, 2013, they met in person at
defendant's apartment at 1995 Davidson Avenue, and that while inside
defendant's apartment, defendant asked T.C. to work as a prostitute and showed
her photos of male clients that were stored on his computer. When T.C. refused
defendant's entreaties, defendant placed a gun to her head and did not allow
her to leave the apartment. (See Affidavit of Police Officer Chalen at ¶¶ 5–7.)
Pursuant to this search warrant, Police Officer Jonathan Reifer of the NYPD,
Computer Crime Squad searched the contents of the seized cellphone utilizing
forensic software that extracts data from cellphones and converts it into a
format readable to a layperson. It is uncontested that all of the text
messages, chat logs, emails, locations, images and video that were contained on
the cellphone were recovered from it. (See Exhibits C and D attached to
defendant's motion.) It is also uncontested that, although the forensic
software permitted a trained user to limit the search of the cellphone by
keyword, date, time, and type of file, no such limitations were utilized by
Officer Reifer.
Included in what was recovered from
this cellphone are conversations between defendant and his male clients about
T.C. and conversations between defendant and T.C. (See People's Memorandum of
Law at p. 5.) In addition, almost all of the text and picture messages
recovered from this cellphone relate to defendant's escort business. These
include voluminous communications between defendant and male clients and
defendant and other sex workers, regarding prices, locations, and sex acts, as
well as numerous photographs of sex workers that were sent to male clients.
(See People's Memorandum of Law at pp. 9–10.)
People v. English,
supra.
The court went on to explain that English
moves to controvert this search warrant
on the ground that the search of the entire contents of defendant's cellphone exceeded the scope of
the warrant. Defendant claims that because the search warrant authorized only
the search of defendant's cellphone for
evidence related to the attempted kidnaping of T.C., to satisfy the Fourth Amendment it was incumbent upon the executing officer to
utilize the forensic software to limit his search to the date and time of the
offense, or to limit his search using as search terms T.C.'s name and phone
number. (See Defendant's motion, Affirmation of Sidney Thaxtor at ¶ 27.)
Defendant further contends that because
his Fourth Amendment rights were violated,
`blanket’ suppression of all the evidence recovered from defendant's cellphone is required. (See
Defendant's motion, Affirmation of Sidney Thaxtor at ¶ 28–30.) For the
following reasons, defendant's motion to controvert search warrant B371–13 is
denied.
People v. English,
supra. I am assuming that a “motion
to controvert” is the same as, or similar to, a motion to suppress.
The Supreme Court then outlined the “legal principles” that
were relevant to ruling on English’s motion to controvert the search warrant:
The Fourth Amendment to the United States Constitution and section 12 of Article I of the New York State Constitution speak with one voice in requiring that search warrants `particularly
describ[e] the place to be searched, and the persons or things to be seized.’
Particularity is required to protect against `wide-ranging exploratory searches
unsupported by probable cause,' see United States v. Rosa, 626
F.3d 56, 61 (U.S. Court of Appeals for the 2d Circuit 2010); however, it does not
require an issuing court to `set forth precisely the procedures to be followed
by the executing officers.’ Dalia v. United States, 441 U.S. 238 (1979); see
also United States v. Grubbs, 547 U.S. 90 (2006) (`nothing in the
language of the Constitution . . . suggests that . . . search warrants must
include a specification of the precise manner in which they are to be executed’).
This is especially true with respect to
searches of the contents of computers, cellphones and other electronic devices,
where courts have developed a flexible approach with respect to the execution
of search warrants. Rather than require law enforcement to utilize specific
search protocols or minimization undertakings as basic predicates for upholding
digital search warrants, many courts have afforded law enforcement leeway in
searching computers for incriminating evidence within the scope of materials
specified in the warrant. See e.g., United States v. Metter, 860
F. Supp.2d 205 (U.S. District Court for the Eastern District of New York 2012); United
States v. Graziano, 558 F.Supp.2d 304 (U.S. District Court for the
Eastern District of New York 2008) (collecting cases).
This is so because there is no way for
law enforcement to know in advance how a criminal may label or code his
computer files and/or documents which contain evidence of criminal
activities. United States v. Graziano, supra. Therefore, to follow
defendant's invitation and to require courts in advance to restrict the
computer search to certain methodologies or terms would give criminals the
ability to evade law enforcement scrutiny by utilizing coded terms in their
files or documents, or placing such documents in areas of the computer that
would not normally contain such files/documents. Id.
Thus, by necessity government efforts
to locate particular files will require examining many other files to exclude
the possibility that the sought after data are concealed there. See United
States v. Galpin, 720 F.3d 436 (U.S. Court of Appeals for the 2d Circuit 2013); see also United
States v. Riley, 906 F.2d 841 (U.S. Court of Appeals for the 2d
Circuit 1990) (allowing some latitude with respect to examining records to
determine if they fall with those described in the warrant simply recognizes
the reality that few people keep documents of their criminal transactions in a
folder marked drug records'). Finally, it is axiomatic that in executing a
search warrant, law enforcement officers may properly seize an item in `plain view’ if they find the item in a place where one reasonably would have expected
to look while searching for an object particularly described in the
warrant. See People v. Brown, 96 N.Y.2d 80, 89–90 (2001) (of
course there are limits in this regard as `the police may not open dresser
drawers searching for a stolen piano’).
People v. English,
supra.
The Supreme Court then applied “these legal principles to
the warrant at issue,” explaining that
it is plain that both the warrant on
its face and the concomitant search by Officer Reifer pass constitutional
muster. Initially, the Court notes that in a decision dated February 27, 2015,
after examining the warrant, the affidavit and sworn testimony thereto, the
Court ruled that this warrant was properly issued upon a finding of probable
cause. Moreover, the warrant on its face was sufficiently specific in that
it identified: 1) a specific offense for which the police had established
probable cause (the attempted kidnaping of T.C.); 2) the place to be searched
(defendant's cellphone); and 3) the items to be seized (numbers, text messages,
picture messages, etc.) by their relation to the designated crime (the
attempted kidnaping of T.C.). See United States v. Galpin, supra.
Thus, Officer Reifer plainly was
authorized to search the contents of defendant's cellphone for evidence in
relation to T.C., and all of the evidence recovered from the cellphone in
relation to T.C. clearly fell within the scope of the warrant. Similarly, all
of the evidence that was recovered that established ownership of the phone
clearly fell within the scope of the warrant. With respect to the evidence
recovered that related to defendant's escort business, although these items
were not specified in the warrant as items to be seized, because of the
latitude conferred upon executing officers in searching computers and
cellphones, Officer Reifer had the right to recover such files and to open
them. See In the Matter of a Warrant for All Content Associated
with a Gmail Account, 33 F.Supp.3d 386 (U.S. District Court for the Southern District of New York 20140; United States v. Graziano, supra; United
States v. Fumo, 2007 WL 3232112 (U.S. District Court for the Eastern District of Pennsylvania 2007); United States v. Scarfo, 180
F.Supp. 2d 572 (U.S. District Court for the District of New Jersey 2001). And,
because the incriminating character of the items related to defendant's escort
business were immediately apparent, the executing officer had the right to
seize them. See People v. Brown, supra.
Accordingly, defendant's motion to controvert this search warrant is denied.
People v. English,
supra.
The court then took up English’s motion to controvert the
other search warrant: Search Warrant
B372–2013. People v. English, supra. It
began by explaining that
this warrant authorized the search of
the apartment where the November 16, 2013 incident with respect to T.C.
allegedly took place. Specifically, the warrant states:
`You are hereby authorized and
directed to search the premises at 1995 Davidson Avenue, Apartment B2, Bronx,
NY, and to seize the following property unlawfully possessed, to wit: one (1)
firearm holster, three (3) rounds of ammunition, firearms, computer equipment
and related paraphernalia including but not limited to hard drives,
flashdrives, compact discs and dvds, recording cameras and related equipment,
any pornographic material, condoms, sexual instruments used for sexual
gratification and evidence tending to establish ownership of the premises of
the premises and connect persons found therein to the premises, to wit:
personal papers and effects. You are further authorized and directed to search
the contents of any computer equipment and related paraphernalia including and
not limited to hard drives, flash drives, compact discs and dvds, recording
cameras and related equipment and pornographic material seized.’
The warrant was supported by the
affidavit of Police Officer Chalen, which included the same averments as those
in his affidavit attached to search warrant B371–2013. Pursuant to the search
warrant, the police seized from the above apartment: a firearm holster, three
rounds of ammunition, nine cellphones, two Samsung tablet computers, one Ipad,
three computer towers, one wi-fi router, one camera and five USB drives. Also,
pursuant to this warrant, the police conducted complete searches, without
restriction, of the computers and cellphones utilizing forensic software, and
provided all data and files contained on the electronic devices to the assigned
prosecutors in a format readable by a layperson. (See People's Answering
Affirmation, Exhibit 3, Defendant's motion to controvert, Appendix A.) The
evidence recovered from these devices included copious amounts of images of
nude or scantily-clad women and teenage girls that appear to have been taken
inside of defendant's apartment. (See People's Memorandum of Law at p. 10.)
People v. English,
supra (emphasis in the original).
The Supreme Court went on to note that
[w]ith respect to this search warrant,
the Court agrees with defendant that this warrant lacked the requisite
specificity to allow for a tailored search of defendant's electronic media.
Unlike search warrant B371–2013, on its face, search warrant B372–2013
authorized a general search of defendant's electronic devices as it failed to
link the evidence sought on defendant's cellphone and computers and
the criminal activity supported by probable cause. As a
result, the portion of the warrant that authorized the search of the computers, cellphones and other electronic
devices seized from the apartment, violated the Fourth Amendment's proscription
against general searches. See United States v. Galpin, supra; United
States v. Rosa, supra.
The People's reliance on People
v. Nieves, 36 N.Y.2d 396, 401 (1975) to argue that any defect in
the search warrant may be cured by reference to its supporting documents, which
make clear that the searches of the electronic devices were limited to
gathering evidence in connection with the attempted kidnaping of T.C. and
defendant's escort business, is misplaced. This is so because to the extent
that Nieves permits the consideration of unincorporated
supporting documents to cure an otherwise defective search warrant, it has been
abrogated by the Supreme Court's decision in Groh v, Ramirez, 540
U.S. 551 (2004). In addressing whether the supporting documents could save a
search warrant which was facially defective, the Court stated that `[the fact
that the application adequately described the things to be seized does not save
the warrant from its facial invalidity’ because the Fourth Amendment `by its
terms requires particularity in the warrant.’ Groh v. Ramirez, supra. Because this Court may no longer rely on
unincorporated supporting documents to cure an otherwise defective search
warrant, with respect to the search of the electronic devices, the warrant
fails for lack of particularity.
People v. English,
supra (emphasis in the original).
The court went on to hold that
[t]his, however, does not end the
inquiry as it is now settled law that when a search warrant is partially but
not wholly invalid, only the fruits of the invalid portion need be
suppressed. See People v. Brown, supra. Here, in addition to
the unparticularized directive with respect to the electronic devices, the
warrant particularly authorized the seizure of a firearm, a firearm holster,
ammunition, and other non-electronic items. Because the warrant was specific
with respect to these items and because their seizure was supported by probable
cause, the Court finds that the constitutionally infirm authorization with
respect to the electronic devices may be severed from the remainder of the
warrant. People v. Brown, supra.
Thus, the evidence seized pursuant to
the search of the electronic devices is suppressed, and the evidence seized
(the holster, ammunition, and other non-electronic items) pursuant to the valid
portion of the warrant may be admitted. Accordingly, defendant's motion to
controvert search warrant B372–2013 is granted in part and denied in part, in
accordance with this decision. This is the decision, opinion and
order of the Court.
People v. English,
supra.
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