Opinion
3986-2018
09-09-2020
The PEOPLE of the State of New York v. Abubakar MUSHA, Defendant.
Melanie Soberal, New County District Attorney's Office, One Hogan Place, New York, NY 10013, for People. Peter Wolk, New York County Defenders Services, 100 William Street, New York NY 10038, for Defendant.
Melanie Soberal, New County District Attorney's Office, One Hogan Place, New York, NY 10013, for People.
Peter Wolk, New York County Defenders Services, 100 William Street, New York NY 10038, for Defendant.
Mark Dwyer, J. Defendant Abubakar Musha stands indicted for Predatory Sexual Assault Against a Child, Course of Sexual Conduct Against a Child, and related offenses. Defendant has moved to suppress information obtained by the People from a cell phone that was recovered from him when he was arrested on November 2, 2018. The search of the phone was authorized by a warrant signed by this judge on February 26, 2019.
In April of 2019 defendant challenged the warrant in a motion to suppress the fruits of the search. Defendant asserted that the affidavit submitted in support of the warrant application did not make out probable cause justifying a search of his phone. He argued as well that the warrant's description of the evidence to be seized was insufficiently particular. On July 10, 2019, this court denied the motion to controvert the warrant.
On January 29, 2020, the Appellate Division, First Department, decided People v. Thompson , 178 A.D.3d 457, 116 N.Y.S.3d 2 (1st Dept. 2020). The Court's order reversed Thompson's conviction, finding that evidence obtained through a search warrant for his cell phone should have been suppressed. Based on Thompson , defendant now seeks re-argument of this court's decision of July 10, 2019.
A
The affidavit submitted in support of the People's warrant application set out, with evidentiary support, the People's theory of the case. In 2017 and 2018 defendant lived in an apartment on Manhattan's lower east side with his wife Lola Harley and Ms. Harley's daughter, who will be referred to in this opinion as N. On November 1, 2018, N gave an oral, recorded statement at the Manhattan Child Advocacy Center asserting that over the course of more than a year defendant had raped and otherwise sexually abused her. N was 9 and then 10 years old during that period. She had not made her mother aware of her step-father's actions.
On the day N made her statement, a school official advised Ms. Harley of N's report. Ms. Harley called defendant on his cell phone and confronted him. Defendant denied the accusation, saying that while wrestling with N shortly before he had simply touched her breast. That night defendant cried and begged N to "save him." He also used his cell phone "all night" to communicate with his family members.
Defendant was arrested the next day, November 2nd. Incident to the arrest the police seized defendant's black Apple cell phone. This court's February 2019 warrant authorized a search of that phone. The People hope to introduce at trial data recovered during the search. Specifically, the People will offer evidence of the ownership of the phone. The People will also offer photographs of N, alone or with defendant, that were taken or modified in the month before defendant's arrest. One of them is a photograph in which defendant and N allegedly "both do not appear to be wearing a shirt"; that photo was deleted at about 3:15 a.m. on November 2, 2018 but was recovered by technicians during the search. Finally, the People intend to offer proof of defendant's web search history from October 1, 2017 to November 2, 2018, and of defendant's call logs and text messages for November 1 and 2, 2018.As indicated above, in April of 2019 defendant moved to suppress the evidence obtained from his phone. In substantial part, that motion was based on a theory that the warrant allowed the extraction of "almost the entirety, if not the entirety of the information on the phone." Spollen affirmation of April 23, 2019. The motion was denied without opinion. As to the extraction argument just noted, this court's thought was that the warrant did authorize extraction of "almost the entirety of the information" on the phone and indeed a search through all that information -- but not the seizure of all that information.
The significance of the distinction may not be obvious. Information in a cell phone cannot be examined comprehensively while it is in the phone. Technicians employ software — here, from the Cellebrite company — to conduct forensic examinations of cell phones in two stages. In the first step, all or nearly all the electronic data in the device is copied into another computer and organized for examination - in effect, the information is dumped on a table so that it can be reviewed. See United States v. Palms , 423 F. Supp. 3d 1254, 1258 (N.D. Okla. 2019). It is as if the warrant had authorized the search of a trove of documents written in Mandarin. The documents would have to be translated into English before being read by officials knowledgeable about the case. In short, this information "dump" yields readable reports of electronic information, segregated by type into files which an examiner can open. Creating this potential for access to the phone's contents by itself raises few if any legal concerns.
Notably, New York discovery rules envision that the People will disclose to the defense the entire contents of a device from which evidence has been obtained. CPL Section 245.20 (1)(u)(ii). That obviously would be impossible without this first step in the search process.
In the second step, an examiner with knowledge of the case and of the warrant authorization sifts through the information in the files to locate relevant material. United State v. Palms , 423 F. Supp.3d at 1258-59, supra; see also United States v. Graziano , 558 F. Supp.2d 304, 313-14 (E.D.N.Y. 2008). It is this second step that is the actual search for the evidence sought by the authorities—the "key issue for both the issue of particularity and the scope of the search is the actual review of the Cellebrite reports." United States v. Palms , 423 F. Supp. 3d at 1263-64, supra . A search is therefore consistent with the Fourth Amendment if the warrant properly limits the examination of the "dumped" information at the second step. Indeed, a search pursuant to such a warrant does not differ materially from any other document search. See , e.g. , United States v. Richards , 659 F.3d 527, 539 (6th Cir. 2011) ; In Re Email Account Maintained at Premises Controlled by Google , 33 F. Supp.3d 386, 394 (S.D.N.Y. 2014) ; People v. Wallack , 68 Misc. 3d 1210A, 2020 WL 4667296 (Sup. Ct. N.Y. Co. 2020).
B
Defendant's current application is based on what he views as new case law from the Appellate Division supporting his legal position. This court agrees with defendant that the decision in People v. Thompson , 178 A.D.3d 457, 116 N.Y.S.3d 2 (1st Dept. 2019), provides a proper basis for an application for re-argument.
Defendant's position is that the warrant application does not contain an adequate statement of probable cause. Defendant's argument is not that the application failed to make out probable cause to believe that defendant committed the crimes specified in the warrant. Instead, he argues that there was no probable cause to believe that evidence of the types recovered from defendant's cell phone would be found in that phone. Relatedly, defendant asserts that the language of the warrant did not specify with the requisite particularity what evidence could be seized from his phone.
The law pertinent to defendant's claims is familiar. Indeed, the probable cause standard is more than familiar, and need not be set out here. See , e.g. , People v. Griminger , 71 N.Y.2d 635, 639, 529 N.Y.S.2d 55, 524 N.E.2d 409 (1988). The government's application for a search warrant, as to a cell phone or some other place or object, must show probable cause to believe that the crimes specified in the warrant were committed. The application must also provide probable cause to believe that relevant evidence will be discovered in the place or thing that will be searched. These rules are based on the constitution's injunction that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched." U.S. Const. Am. IV.
The constitutional provision was meant to remedy the practice of British colonial courts to issue warrants authorizing "general searches" for evidence of criminal activity -- searches not limited as to place or to the objects sought. See , e.g ., Maryland v. Garrison , 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) ; People v. Nieves , 36 N.Y.2d 396, 400-01, 369 N.Y.S.2d 50, 330 N.E.2d 26 (1975). To prevent general searches the law mandates that a search warrant contain both a "particular" description of the area to be searched, and a "particular" description of the things to be seized. U.S. Const. Am. IV ; and see , e.g. , United States v. Richards , 659 F.3d 527, 536-37 (6th Cir. 2011). That means that the warrant must be "specific enough to leave no discretion to the executing officer" as to the place to be searched and the items that may be seized. People v. Brown , 96 N.Y.2d 80, 84, 725 N.Y.S.2d 601, 749 N.E.2d 170 (2001) (internal quotation marks omitted); People v. Darling , 95 N.Y.2d 530, 537, 720 N.Y.S.2d 82, 742 N.E.2d 596 (2000). The warrant need not contain language crafted with "hypertechnical accuracy and completeness of description." But its language must be sufficiently definite, when viewed with common sense, to limit a search to its intended area and to identify what items may be seized. People v. Nieves , 36 N.Y.2d at 401, 369 N.Y.S.2d 50, 330 N.E.2d 26, supra ; see also , e.g. , United States v. Richards , 659 F.3d at 537-40, supra ; United States v. Upham , 168 F.3d 532, 535 (1st Cir. 1999). If the text of the warrant fails to accomplish those ends, the warrant does not satisfy the particularity rule. Evidence recovered in an otherwise authorized search may then have to be suppressed.
A note as to terminology is in order. Some federal courts distinguish between an "overbroad" warrant, one which does not properly limit the area to be searched, and a warrant lacking "particularity" in its description of what evidence may be sought in those areas. See , e.g. , United States v. Ulbricht , 858 F.3d 71, 102-03 (2nd Cir. 2017). New York courts tend to label both failings, essentially interchangeably, as problems with "particularity" and "overbreadth." This opinion simply uses the "particularity" term. See People v. Thompson , 51 Misc. 3d 693, 704 n. 10 (Sup. Ct. N.Y. Co. 2016) ; and see , e.g. , People v. Nieves , supra.
That last sentence says that evidence "may" have to be suppressed, not that it will be suppressed. What the court has in mind is another, and highly pertinent, legal doctrine: "severability." One portion of a warrant's search authorization may not adequately limit the area to be searched or may not adequately specify some intended objects of the search. But if an independent portion of the search authorization does pass muster, any fruits seized pursuant to that properly particular language will not be suppressed, despite the error in the other language. See People v. Brown , 96 N.Y.2d 80, 725 N.Y.S.2d 601, 749 N.E.2d 170 (2001) ; People v. Hansen , 38 N.Y.2d 17, 377 N.Y.S.2d 461, 339 N.E.2d 873 (1975) ; see also United States v. Galpin , 720 F.3d 436 (2nd Cir. 2013).
To end these statements about the pertinent law, space should be devoted to the Thompson case on which defendant relies. In Thompson the Appellate Division reversed a conviction for the dissemination of indecent material to a minor. The defendant sent texts to the minor, and had one or more phone conversations with her, on a single day -- September 1, 2016. An application for a warrant to search Thompson's cell phones stated as much, and contained no information indicating that the crime occurred or was contemplated over a longer period than that one day. The application was granted. The warrant authorized the People to examine the defendant's internet usage from January 1 to September 16, 2016 — a period of eight and one-half months. The warrant further authorized "without a time limitation, examination of essentially all the other data on defendant's phones." People v. Thompson , 178 A.D.3d at 458, 116 N.Y.S.3d 2, supra .
The Appellate Division found that the warrant was "overbroad." The Court reasoned that the People did not show probable cause to believe that evidence would be found in "the broad areas specified," i.e. , in "all of the ‘locations’ within defendant's cell phone to which the warrant authorized access." As an example, the warrant allowed a search of "defendant's browsing history six or seven months before September 1, 2016." The court noted as well that the warrant allowed the authorities to examine defendant's emails without date restriction, even though there was no indication that the defendant ever communicated with the minor by email. Id . at 458, 116 N.Y.S.3d 2. Because access had been granted to areas of data not likely to contain evidence, the warrant implicated the "Fourth Amendment's core protection against general searches" and was invalid. Id . at 458, 116 N.Y.S.3d 2.
Notably, this court knows nothing more about the facts of the case than is stated in the opinion. At some time after the reversal, the court records were sealed. The file and the appellate briefs are unavailable.
C
The People seek to introduce items that were obtained in the search of defendant's cell phone. The portions of the warrant relevant to the seizure of those items will now be described.
Evidence of the ownership of the cell phone
Defendant was arrested for continuing sex offenses allegedly committed for about 13 months, from on or about October 1, 2017, to on or about October 30, 2018. A black Apple cell phone was recovered from defendant when he was arrested on November 2, 2018. The warrant application recited reasons to believe that items relevant to the case would be found on a black Apple cell phone owned and used by defendant. For example, defendant and his wife discussed N's accusations in calls and texts on November 1, 2018. Afterwards defendant spoke "all night" by phone with his family members. The People believe that records of defendant's communications would corroborate the wife's testimony that the phone was used frequently on November 1 and 2, 2018, in ways relevant to criminal activity.
Moreover, the People believed that the records of these calls and other information on the cell phone would show that it was defendant who used the phone in this relevant way. Normal patterns of cell phone usage include storing photographs, sending messages, and making contributions to social media accounts that would relate to defendant's activities and connections with family members such as N. This and other information would confirm who used the phone on November 1 and 2 and also give evidence of defendant's control of the phone then and at earlier times. As examples, the affiant mentioned telephone call logs, contact lists, email addresses, calendar entries, mobile app user profiles, voice messages, lists of other, Blue-tooth paired devices, and identifiers for instant messaging and social media accounts.
Based on this information, the warrant authorized recovery of "evidence of the identity of the owner and/or user of" the cell phone taken from defendant "at or around the time of the commission of the Subject Crimes." The warrant continued by listing examples of the kinds of data that would serve this purpose, including call logs, communications, and photos. "At or around the time of the commission of the Subject Crimes" must be understood to mean, as indicated in the application, from on or about October 1, 2017, to on or about October 30, 2018.
This court believes it plain that cell phone data files with such information are indeed extremely likely to contain proof of the identity of the person owning or using a phone. And if there is probable cause to believe that the phone contains evidence of crimes, and probable cause to believe that a suspect used the phone, it is plainly appropriate to search for any information that ties the suspect to that phone. The warrant here limited the evidence to be seized to data created in the period of the crime. Speaking generally, such a limitation was not necessary: the most pertinent evidence of phone ownership may be created at any point from when the phone first went into service all the way up to the time when the authorities took custody of the phone, no matter when in that period the crime occurred.
The warrant gave permission to search for information about who controlled the cell phone in the files that could contain such information, and there were many. And there is no doubt that an extensive search of a cell phone poses a grave threat to an individual's right to privacy. See Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). Still, some cell phone searches will yield a phone's evidence only if the search is extensive. No case known to this judge, from the Supreme Court on down to this judge's level, suggests that probable cause will not permit a search of a place because that place contains many areas. The permissible scope of a search "is defined by the object of the search and the places in which there is probable cause to believe that [contraband] may be found." Maryland v. Garrison , 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). A document warehouse could be searched for incriminating records that are likely to be present at an unknown place inside the building. The entirety of a museum may be searched for a stolen miniature painting or a counterfeit Assyrian seal if the object might be stored anywhere in the museum. See , e.g. , Maryland v. Garrison , 480 U.S. at 84, 107 S.Ct. 1013, supra ; United States v. Ulbricht , 2014 US District LEXIS 145553 at 38-41 (SDNY 2014), aff'd , 858 F.3d 71 (2d Cir. 2017) ; United States v. Graziano , 558 F. Supp. 2d 304, 310-11 (E.D.N.Y. 2008). Notably, it has been widely recognized that a suspect may well not have left key evidence in neatly labeled computer files, and indeed may well have intentionally disguised the location of the evidence. See , e.g. , United States v. Stabile , 633 F.3d 219, 234 (3rd Cir. 2011).
That said, the privacy concerns underscored in Riley are very real. And those concerns are, in this judge's view, enhanced by the frequency with which cell phone warrants now seem to be sought. The Legislature may seek to set limits on when and how thoroughly electronic devices may be searched to find evidence that could be located anywhere in that electronic device.
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In this case the warrant application sought evidence of control of the phone taken from defendant when he was arrested. Evidence created over approximately a year could be seized -- but defendant's alleged crime had been committed over that very time frame. As just noted, that many areas of a location or object could contain relevant evidence does not mean that those areas cannot all be searched. As stated in the expert affidavit submitted in support of the warrant, a suspect can secrete evidence in hidden directories of the phone, or disguise it in other ways. Affidavit of David L. Chan dated December 4, 2018, at para. 4. See , e.g. , United States v. Ulbricht , 858 F.3d 71 at 102, supra ; United States v. Richards , 659 F.3d 527, 538-39 (6th Cir. 2011) ; United States v. Burgess , 576 F.3d 1078,1092-94 (10th Cir. 2009).
Our facts appear, as best can be told, not remotely like those of Thompson . The warrant in that case authorized a search for records created over a period comparable in length to that of our warrant, but for what was apparently a one-day crime. If there is doubt on that score, however, a note on the severability doctrine should conclude this discussion. As it turns out, the People so far have not indicated that they will offer proof of possession and ownership of the phone beyond evidence properly seized pursuant to independent and particularized warrant provisions discussed below.
Photographs of N, alone or with defendant, that were taken or modified in the month before defendant's arrest
The warrant authorizes the seizure of photographs from defendant's black Apple cell phone. The applicant, a detective who had over 16 years of experience as a police officer and who had participated in the execution of over 100 search warrants, stated that individuals often store photos of themselves, alone or with family members, on cell phones. He added that these photographs can provide relevant evidence both of phone ownership and of suspected criminal activity.
The warrant authorized law enforcement officials to seize "photos, videos or other images" depicting defendant or his "family, friends, or associates." Defendant's alleged crimes occurred from on or about October 1, 2017, to November 1, 2018. The search for visual evidence of those crimes was limited to photos that were taken in that period (or on one "cover-up" day after it). The People now seek to introduce certain photos of N, alone or with defendant, that were taken or modified in the month before defendant's arrest. One photo of special note appears to show defendant and N not wearing shirts; that photo was recovered even though it was deleted at about 3:15 a.m. on November 2, 2018.
There was ample cause to believe that items like those specified would be found on defendant's phone. Even apart from the detective's statement about typical cell phone photography based on his experience, the common experience of all of us confirms the likelihood that defendant's phone would contain "selfies" and photographs of relatives — like his stepdaughter N, who resided with him. In a case involving allegations of domestic abuse, such items would very likely be relevant. Authorization for a seizure of items so commonly found on a cell phone, if they are likely to be relevant to a crime, does not require a showing of probable cause enhanced by anything beyond common knowledge. As would be expected, the search for photos, videos, and other images of defendant "or of others who are his family, friends, or associates" revealed pertinent evidence of his relationship with N — along with defendant's control over the phone. And still more to the key point here, the warrant language limited the search in a manner consistent with the Constitution's particularity rules. Those executing the warrant would have had no trouble understanding which items in the phone would satisfy the description.
These conclusions are consistent with the Thompson case. A major focus of the Thompson opinion was on the fact that the warrant application supported a conclusion that a crime occurred on only one day. Despite the very short duration of the crime, the warrant authorized examination of Thompson's browsing history for about a year. And a search of Thompson's emails was permitted without date limitation. In this case the items sought were limited to the period of defendant's crimes and to specific items related to those crimes.
Defendant's web search history from October 1, 2017 to November 2, 2018
The warrant authorizes a search of, inter alia , defendant's "internet searches" for proof of "indications of an intent, motive or desire of committing" the alleged sexual crimes. The People seek to introduce evidence that on March 16, 2018, and on April 21, 2018, defendant conducted internet searches graphically indicating a sexual interest in overweight young girls. The evidence does match the warrant authorization, but nothing in the detective's application provides probable cause to believe that the phone contained such material. Common experience indicates that photographs of family members will be found on a cell phone. But it cannot be said that common experience supports a conclusion that the cell phone of one who committed sex crimes against a family member would contain proof of internet searches showing a motive to commit such crimes. Notably, there is no statement by the affiant of knowledge that could substitute for common knowledge. Accordingly, the evidence of those internet searches will be suppressed. Under the severability doctrine, however, that deficiency has no implications for other recovered evidence.
Defendant's call logs for November 1 and 2, 2018
The warrant application provided probable cause to believe that defendant made a number of cell phone calls from the evening of November 1, 2018, into the morning of the following day. Defendant's wife reported that on November 1st she and defendant spoke over his phone about the accusations being made by N. She reported as well that defendant later begged N to "save" him and then spent "all night" consulting his family members over the phone.
The People now seek to introduce call logs from defendant's phone confirming that he made about 200 calls in less than 48 hours just before his arrest. The warrant application advised the court that defendant's phone was taken on November 2, 2018, and the warrant appropriately limited the call logs to be seized to those for two days. The records were specifically described and relevant. Nothing in the Thompson decision calls into question the seizure of this evidence.
* * * Defendant's application to re-argue is granted. And defendant's motion to suppress evidence of his browsing history is granted as indicated above. Defendant's remaining arguments about the court's order of July 10, 2019, are rejected.