Opinion
Ind. No. 75985-2022
12-18-2023
The People of the State of New York, v. Barrington Gaynor, Defendant.
ADA Joseph A. Duarte II, Kings County District Attorney's Office Leon Schrage, Esq.
ADA Joseph A. Duarte II, Kings County District Attorney's Office
Leon Schrage, Esq.
JOHN T. HECHT, A.J.S.C.
Defendant Barrington Gaynor is charged with attempted murder in the second degree for allegedly shooting at an employee of the Dubai Exotic Smoke Shop on October 16, 2022. At the time of defendant's arrest two days later, on October 18, 2022, the police recovered a red Apple iPhone from his person.
Defendant now moves to controvert a search warrant for data obtained through location-based services, geolocation information, and the contact list stored in his cell phone, which this court authorized on June 8, 2023, and to suppress the fruits of that search.
In support of his motion, defendant argues that the warrant was not supported by probable cause, and that it was overbroad and lacked specificity.
This decision considers whether the search warrant was properly issued. The court has reviewed unredacted copies of the search warrant and the sworn affidavit of Detective Edwin Santiago.
Probable Cause
Defendant raises one specific challenge to the probable cause for the cell phone location data warrant. He contends that Detective Santiago's affidavit failed to establish a "sufficient nexus" between his cell phone and the alleged shooting. Specifically, defendant argues that nothing in the warrant application demonstrates that he was holding or using his cell phone at the time of the offense, and that "[w]ithout any evidence of use, it is improbable that there was a creation of any electronic data" (Def Mot at ¶¶ 8-9).
The pervasiveness of cell phones and their ability to record their user's movements effortlessly and automatically in detailed, encyclopedic fashion, is a basic reality of modern life - a reality that Fourth Amendment jurisprudence (and its New York counterpart) has adapted to and accepted as fact.
The United States Supreme Court has observed that cell phones have become an "important feature of human anatomy" (Riley v California, 573 U.S. 373, 385 [2014]). It has further recognized the compulsivity with which individuals carry their cell phones with them ("all the time"), and acknowledged that these "faithful followers" are equipped with evolving technologies that allow them to easily and efficiently track a person's movements with remarkable precision (Carpenter v United States, 138 S.Ct. 2206, 2218 [2018] ["when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user"]; Riley, 573 U.S. at 396 ["Historic location information is a standard feature on many smart phones and can reconstruct someone's specific movements down to the minute, not only around town but also within a particular building"]).
The New York Court of Appeals accepted these undeniable realities nearly fifteen years ago with regard to electronic geolocation data: "What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations - political, religious, amicable and amorous, to name only a few - and of the pattern of our professional and avocational pursuits" (People v Weaver, 12 N.Y.3d 433, 442 [2009]).
The recognition that cell phones have become an extension of our very selves - a digital limb, so to speak - and of the intimate portrait of us that geolocation data stored in cell phones permits is the rationale for the United States Supreme Court's and the New York Court of Appeals' decisions in Carpenter, Riley and Weaver: a person has an expectation of privacy in the data stored in his cell phone, including the record of his physical movements, and cell phone searches (at least those over a certain time frame, see infra) must be preceded by a search warrant supported by probable cause (Carpenter, 138 S.Ct. at 2221).
Against this backdrop, this court finds that it was unnecessary for Detective Santiago to allege that defendant was holding or using his cell phone at the time of the crime, as a court of coordinate jurisdiction has also observed (see People v Williams, 79 Misc.3d 809, 817 [Sup Ct Albany Co 2023] [notion that people always carry their cell phones sufficient to show nexus between suspect and cell phone], citing Carpenter, 138 S.Ct. 2206; Riley, 573 U.S. 373).
In addition, that defendant was in possession of a cell phone at the time of arrest two days after the shooting made it reasonable for Detective Santiago to believe that he had his cell phone with him during the shooting, and that a search of that phone for information about its - and by extension, defendant's - whereabouts, would yield evidence related to the crime.
These facts, combined with Detective Santiago's averments that, based on his training and experience, location-based services data from the target phone would provide geolocation information regarding its user's whereabouts, and that the target phone's Google maps application would reveal the whereabouts of its user at or near the time of the crime, were sufficient to meet the probable cause requirement for a search of the phone's location data.
Notably, defendant does not argue that probable cause establishing his identity as the shooter is insufficient, nor would such an argument succeed. Relying on information from the complainant and fellow officers involved in the investigation, Detective Santiago affirmed that on October 16, 2022, at 9:46 PM, the defendant, whom the complainant knows as "Eli," entered 13 Newport Street in Brooklyn, and fired three shots into the store. Officers responding to the scene recovered three shell casings and multiple bullet fragments from inside and outside the location.
Based on the foregoing, Detective Santiago's affidavit establishes probable cause to believe that evidence helpful to determining defendant's location immediately prior to, during, and after the alleged shooting, would be obtained by searching the location-based services data and geolocation information on his phone.
As this court has previously cautioned, however, an arrestee's mere possession of a cell phone at the time of arrest does not mean that every component of the phone is subject to search pursuant to a judicial warrant (People v Perez, 72 Misc.3d 310, 314 [Sup Ct Kings Co 2021]).
Had Detective Santiago sought to search, say, the text messages stored on defendant's cell phone, he would have had to allege some connection between the defendant's text messages and the alleged crime - for example, that defendant, who is apparently known to the complainant, communicated with him via text message close in time to the shooting.
Although defendant does not specifically challenge the search of the contact list on his phone, this court finds that, based on Detective Santiago's averments that the complainant and defendant were known to each other, there was probable cause to believe that searching the contact list would yield evidence related to the crime - for example, contact information corroborating their being acquainted.
Based on the foregoing, therefore, this court finds that the search warrant was amply supported by probable cause.
Particularity & Overbreadth
Sufficiently particularized warrants (a) identify the specific offenses for which the police have established probable cause, (b) describe the places to be searched, and (c) specify the items to be seized by their relation to the designated crimes (United States v Frye, 2022 WL 1284318, at *3 [EDNY April 29, 2022]). And, though related, particularity and overbreadth are distinct concepts.
As the Court in United States v Ray, 541 F.Supp.3d 355, 398 [SDNY 2021], cogently explains, "[a]lthough a lack of particularity can result in the warrant's overbreadth, a broad warrant does not necessarily lack particularity," and to determine whether a warrant is overbroad, courts look to 'whether there exists probable cause to support the breadth of the search warrant that was authorized,'" id., quoting United States v Zemlyansky, 945 F.Supp.2d 438, 464 [SDNY 2013]).
Defendant contends that the warrant at issue lacks particularity and is overbroad. He argues that the warrant is defective because it fails to specify the "discrete pieces of data to search for" and their relation to the alleged offense.
The search warrant at issue was sufficiently particularized insofar as it specifically identified the offense for which the police had probable cause (attempted murder), and the places to be searched and the items to be seized in relation to the crime (location-based services data, geolocation information, and contact list on the cell phone), all of which the search warrant application plainly and clearly identified as being necessary and relevant to the ongoing investigation into the shooting.
Furthermore, the search warrant's authorization of location data from October 15, 2022, through, October 18, 2022, was not overbroad. The search for location data was limited to only four days. In fact, because of its short duration, the search might not even have been subject to the warrant requirement (see Carpenter, 138 S.Ct. at 2217 [holding that accessing at least seven days or more of a person's historical cell location records constitutes a "search" under the Fourth Amendment] [emphasis added]).
In any event, it was reasonable for investigators to track the target phone's location data close in time to the shooting, especially given defendant's apparent evasion of the police for two days after the alleged shooting and apparent prior acquaintance with the complainant.
Similarly, the search warrant's authorization of any data related to the ownership or possession of the phone, including its contact list, from inception to October 18, 2022, the day of defendant's arrest, was not overbroad, as it was limited to information that would corroborate defendant's connection to the phone and demonstrate whether he was acquainted with the complainant.
For these reasons, defendant's motion to controvert the search warrant is denied.
The foregoing constitutes the decision and order of the court.