Opinion
No. B-134-2023
06-16-2023
In the Matter of an Application by The People of the State of New York For a Search Warrant
Office of the District Attorney, Bronx County, for the People Ex Parte Search Warrant Application
Unpublished Opinion
Office of the District Attorney, Bronx County, for the People
Ex Parte Search Warrant Application
E. Deronn Bowen, J.C.C.
The People's application for a search warrant to extract data from a cellular telephone is DENIED.
A. Introduction
It is no overstatement that cellular telephones are ubiquitous in the United States. The Supreme Court remarked nearly a decade ago that cell phones were at that time already "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy" (Riley v California, 573 U.S. 373, 385 [2014]). Our national love affair with these technological marvels - and the practically instantaneous access they provide to goods, services, news, entertainment and the total or near-total knowledge of the world's libraries and museums - cannot be overstated.
"The vast majority of Americans - 97% - now own a cell phone of some kind. The share of Americans that own a smartphone is now 85%, up from just 35% in Pew Research Center's first survey of smartphone ownership conducted in 2011" (Pew Research Center, Mobile Fact Sheet [April 7, 2021], available at https://www.pewresearch.org/internet/fact-sheet/mobile/ [last accessed June 7, 2023]). Cell phone use and dependence in the United States has hardly diminished since 2021.
A cell phone also likely contains a wealth of knowledge about its owner. Its cache of photographs, contacts, text messages, apps, calendars, emails and internet browsing histories provides a rather complete picture of the owner's life, including, but not limited to, financial standing, family and social connections, medical conditions, and educational and work histories. Access to a cell phone's contents renders its owner's life an open book through which even the most determinedly concealed secrets, fears, hopes, fetishes, lies, joys, worries, shames, bigotries and desires are laid bare. "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life" (id. at 403 [internal quotation marks omitted]).
Against this backdrop, the People applied ex parte for a search warrant to extract data from a cellular telephone ("target phone") pursuant to the particularities of the accompanying search warrant affidavit. On March 22, 2023, the court denied the application and now issues this opinion to explain the basis for the ruling.
B. The Search Warrant and Supporting Affidavit
According to the sworn search warrant affidavit, the target phone's named owner ("target individual") was observed using it to record an arrest made by police officers in Bronx County, NY, that resulted in the seizure of one or more firearms. The target phone was seized and has since been in the exclusive possession of the NYPD or the Office of the District Attorney, Bronx County. The credible factual allegations of the search warrant affidavit provide reasonable cause to believe that (1) the target individual is the owner of the target phone; (2) the target phone was the same cell phone used by the target individual to record the arrest and firearm seizure; and (3) the target individual has previously possessed firearms and/or been closely associated with others possessing firearms.
Much of the underlying factual information supplied in the People's search warrant application is under seal by order of the Supreme Court, Bronx County, and is omitted from this decision and order.
The People asserted in the search warrant affidavit "that evidence may be acquired by retrieving information retained in the internal memory of the [target phone]." However, due to current technological limitations, it would be necessary to first extract all, or nearly all, of the target phone's data and then examine the data for evidence relevant to the particularities of the search warrant, namely:
People v Musha (69 Misc.3d 673 [Sup Ct, NY County 2020]) gives an excellent summary of the cellular phone data extraction process that would be employed here (see id. at 675-676).
"for any and all evidence... tending to evince or concerning:
a. the unlawful possession of weapons [during the arrest]...;
b. communications pertaining to the planning, commission, aiding and abetting and/or recruitment of others to commit the Subject Crimes, including but not limited to text messages (SMS), iMessages, emails, WhatsApp messages, Facebook messages, Instagram direct messages, call records, call history, and outgoing and incoming calls;
c. records, documents, communications, photographs, video recordings, and Internet activity (including browser or search history) related to the acquisition and possession of firearms; the threat or use of firearms against others; knowledge of firearms and their operability; and motivation or intent related to the acquisition and possession of firearms;
d. communications; telephone and address books information; contact information; documents; notes; photographs; and voice recordings that evince association, rivalry, or familiarity between the owner of the [target phone] and [other named individuals];
e. location data related to the Subject Crimes, covering the time period on or about [the arrest], including but not limited to call origination and termination location data and information; stored global positioning (GPS) data and information; and location services information;
f. files, information, and data tending to identify the user and/or owner of the [target phone], including but not limited to the telephone number, Mobile Identification Number [MIN/MSID]; International Mobile Subscriber Identity [IMSI]; Electronic Serial Number [ESN]; Mobile Equipment Identifier [MEID]; International Mobile Station Equipment Identity [IMEI]; [and]
g. video footage in/around [the arrest]" (emphasis in the search warrant).
C. Analysis
The federal Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" (US Const Amend IV).
Not to be outdone, the New York State Constitution directs:
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (NY Const, art I, § 12, cl 1).
Notably, the federal and New York State Constitutions speak in unison "against unreasonable searches and seizures," and both mandate that search warrants be issued only upon an oath or affirmation "particularly describing the place to be searched, and the persons or things to be seized."
In People v Thompson (178 A.D.3d 457 [2019]), the defendant used a cell phone to sexually proposition a 13-year-old minor. The Appellate Division, First Department, held that the search warrant for the defendant's multiple cell phones, that "authorized... examination of essentially all the [] data on defendant's phones[,]... failed to satisfy the particularity requirement of both the Fourth Amendment and Article 1, § 12 of New York's Constitution," as it was absent "probable cause that evidence of the crimes specified in the warrant would be found in the broad areas specified" (id. at 458). The instant application is similarly without sufficient reasonable cause to believe that the evidence sought "would be found in the broad areas" of the target phone from which the People sought to extract data. "While it was of course possible that [the target individual's] phone contained evidence of the specified offenses..., there were no specific allegations to that effect" (id.).
"Reasonable cause means probable cause" (People v Maldonado, 86 N.Y.2d 631, 635 [1995]).
Granted, had the court permitted the People to extract and examine the target phone data as requested, all irrelevant data could be subsequently severed and precluded from use at hearing and trial (see People v Brown, 96 N.Y.2d 80, 85 [2001] ["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"]). Severance, however, is a remedy available pursuant to a motion to controvert an already-executed search warrant. Where, as here, an application to extract cell phone data is absent reasonable cause to believe that evidence relevant to the particularities of the search warrant will be found in "the broad areas" described therein, the Fourth Amendment makes clear the court's obligation: "no Warrants shall issue, but upon probable cause" (US Const Amend IV). The New York State Constitution could not agree more:
"[Ex] parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof" (NY Const, art I, § 12, cl 2).
As the court is constitutionally proscribed from authorizing a search warrant absent particularization and reasonable cause, the People's search warrant application to extract data from the target phone is DENIED.
The People should be mindful that a valid search warrant request for cellular phone data must set forth reasonable date and time restrictions on the data to be searched (or provide a reasonable basis for deeming this requirement inapplicable), so as to minimize the invasion of an owner's cell phone privacy interest (see People v Perel, 34 N.Y.2d 462, 466 [1974] ["the individual's reasonable expectation of privacy is a significant factor in determining reasonableness" of a search]). The court appreciates the technological and logistical difficulties this requirement may present the People, but the binding First Department pronouncement is clear. "[F]ollowing Thompson, the Court agrees that the absence of any temporal restriction at all renders the warrant[] for the [cellular phone data] overbroad." (People v Barnett, 69 Misc.3d 1219 [A], 2020 NY Slip Op 51447[U], *3 [Sup Ct, NY County 2020] [emphasis in the original]).
The court shares the People's and the community's concern about gun violence. The court also cannot ignore the Pandora's box privacy concern that accompanies permitting the extraction of the near-entirety of a cellular phone's data, even when reasonable cause is present. The court, however, declines to decide the proper balance between these two powerfully valid concerns at this time, as the necessary reasonable cause is absent from the search warrant application here.
Namely, if reasonable cause exists to believe that cell phone data contains relevant evidence of criminality, and assuming that technological limitations prevent extracting only the evidentiarily-related data, would a warrant authorizing the extraction of the entirety or near-entirety of the cell phone data, for subsequent evidentiary examination, be constitutional if, as will often be the case, the amount of relevant evidence contained therein is infinitesimal in comparison with the quantity of the owner's evidentiarily-irrelevant, personal data that would remain in the possession of the NYPD or the District Attorney's Office? (See Thomas Paine, Common Sense [1776] ["Government, even in its best state, is but a necessary evil"]).