Opinion
No. 2016NY046007.
02-21-2017
The PEOPLE of the State of New York v. Yun Suhg RHEE, Defendant.
The Legal Aid Society, by Lamar R. Miller, Esq., for the Defendant. Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Chloe Kendall, for the People.
The Legal Aid Society, by Lamar R. Miller, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Chloe Kendall, for the People.
STEVEN M. STATSINGER, J.
Defendant, charged with Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), moves for an order controverting the search warrant that resulted in the seizure of evidence from his black Samsung Galaxy S7 Edge cellular phone. He also moves to compel the People to obtain and disclose certain psychiatric records relating to an eyewitness, or to provide the defense with information so that it may acquire the records. The People have submitted a copy of the affidavit in support of the search warrant and a transcript of the testimony before the issuing judge, along with the search warrant itself. Copies of these documents were also furnished to the defense. This Court entered an order denying the motion on January 20, 2017. This decision sets forth the Court's reasons for that order.
I. FACTUAL BACKGROUND
A. The Allegations
According to the Superseding Information ("SSI"), on July 29, 2016, defendant's then girlfriend observed the defendant laying on his back, and moving their one year-old daughter's legs so that her feet were resting on his genital area. The child bounced on the defendant's genital area and placed her hand on his penis. The mother then picked up the child and observed that the defendant had an erection. Defendant told the mother that she should keep the child away from him because he does not trust himself with her, that they should sleep in separate bedrooms and that he needed help.
B. Legal Proceedings
Defendant was arraigned on July 31, 2016, on a felony complaint charging him with Sexual Abuse in the First Degree, and Endangering the Welfare of a Child. The Court set bail, which defendant eventually posted, and adjourned the case to August 5, 2016.
On August 5, 2016, the People moved to reduce for all purposes, which the Court granted, and they filed an SSI charging the defendant with Endangering the Welfare of a Child. The Court then adjourned the case for motions. Defendant filed an initial motion to compel disclosure of the mother's psychiatric records and controvert the search warrant on October 4, 2016. The People responded to that motion. Defendant filed a supplemental motion to controvert on December 3, 2016, and the People filed a response on January 6, 2017. The People provided a transcript of the testimony in support of the search warrant on Saturday, January 14, 2017, and the Court entered a short order denying the motion to controvert and compel on January 20, 2017.
C. The Search Warrant Affidavit
The search warrant affidavit provides an account by the child's mother that is nearly identical to that summarized above. In addition, the mother told the detective who obtained the warrant that the day after the incident, defendant sent her witness text messages asking her to purchase Valerian Root. When she asked what Valerian Root is used for, he replied "killing libido."
The detective also interviewed the defendant, who told the him that he felt the child bouncing on his leg, but did not realize what the child was doing. He admitted that he realized that he had an erection after the mother took the baby from him. Defendant also told the detective that he believes that he has a sexual addiction because he masturbates daily, sometimes twice a day, and that he felt that he needs help.
When the detective arrested the defendant, he seized defendant's Samsung Galaxy S7 Edge cellular telephone, which is the target of the warrant application.
II. THE INFORMATION
The SSI, sworn to by the complainant provides that on July 29, 2016:
I observed (i) defendant laying down on his back and moving our one year old child's legs so that her feet were resting on his genital area approximately three different times whenever she recoiled her feet; (ii) the baby lift one leg and leaned it against defendant's leg and then begin to bounce up against defendant's genital area; and (iii) the baby place her hand on defendant's penis. Upon making the third observation, I picked the baby up and observed that the defendant had an erection.
The defendant stated in sum and substance in my presence KEEP HER AWAY FROM ME, I DON'T TRUST MYSELF WITH HER. WE SHOULD SLEEP IN SEPARATE ROOMS. I NEED HELP.
III. DISCUSSION
A. The Motion to Controvert Is Denied
1. Introduction
The contents of a person's cellular telephone are protected by the Fourth Amendment. Law enforcement officers can only search a suspect's cell phone incident to an arrest after a "warrant has been issued by a detached magistrate...." People v. Watkins, 46 Misc.3d 207, 209 (Sup.Ct. Kings County 2014) ; Riley v. California, 134 S.Ct. 2473, 24878 (2014). Here, the defendant was placed under arrest on July 30, 2016, and his cellular phone was seized by the NYPD. On August 30, 2016, a search warrant was issued for the cellular phone.
Defendant's motion argues both that the warrant was not based on probable cause and, alternatively, that the warrant was overbroad, because it permitted a search of all of the contents of defendant's phone, not merely those areas of the phone where evidence of criminality was likely to be stored, and included an application to search for information relating to criminal activity relating not only to the child complainant in this particular case but to "other minor children." The Court rejects these claims.
2. Applicable Legal Standard
"A presumption of validity attaches to a warrant, which has already been tested by the issuing Judge, thus simplifying the suppression court's task to determining whether the issuing Judge could reasonably have concluded that probable cause existed." People v. Ortiz, 234 A.D.2d 74, 75–76 (1st Dept 1996), citation omitted. See also People v. Traymore, 241 A.D.2d 226, 230 (1st Dept.1998) ; People v. Calise, 256 A.D.2d 64, 65 (1st Dept 1998). "[A] challenge to the facial sufficiency of a written warrant application presents an issue of law which does not require a hearing and which the court properly decides by reviewing the affidavits alone in order to determine whether they establish probable cause." People v. Dunn, 155 A.D.2d 75, 80 (4th Dept.), aff'd., 77 N.Y.2d 19 (1990), citations omitted. See also People v. Carlton, 26 AD3d 738 (4th Dept.2006) ; People v. De Pillo, 262 A.D.2d 996 (4th Dept.1999) ; People v. Christian, 248 A.D.2d 960 (4th Dept.1998). This is especially true where, as here, "defendant's motion papers did not otherwise raise an issue of fact requiring a hearing" De Pillo, 262 A.D.2d at 996, citations omitted.
"To establish probable cause, a search warrant application must provide sufficient information ‘to support a reasonable belief that evidence of a crime may be found in a certain place’." People v. German, 251 A.D.2d 900, 901 (3d Dept.1998), citation omitted. See also People v. Martinez, 298 A.D.2d 897, 898 (4th Dept.2002). Thus, " ‘[i]n reviewing the validity of a search warrant to determine whether it was supported by probable cause ... the critical facts and circumstances for the reviewing court are those which were made known to the issuing Magistrate at the time the warrant application was determined.’ " People v. Sall, 295 A.D.2d 812, 813 (3d Dept.2002).
In New York State, courts determining the sufficiency of an affidavit submitted in support of a search warrant application that relies on hearsay information apply the two-prong Aguilar–Spinelli test. People v. Griminger, 71 N.Y.2d 635 (1988). The Aguilar–Spinelli "test provides that a tip from a hearsay informant ... may not be used unless the source of his knowledge is revealed and the informant is of known reliability." People v. Edwards, 95 N.Y.2d 486, 495 (2000), citation omitted. See also People v. Bell, 299 A.D.2d 582, 583 (3d Dept.2002).
3. The Aguilar–Spinelli Test Is Satisfied Here
a. Reliability
Here, the reliability prong of the Aguilar–Spinelli test is satisfied, because the child's mother—the source of most of the information proffered by the detective in his affidavit—identified herself. People v. Hicks, 38 N.Y.2d 90, 93 (1975) ; People v. Hetrick, 80 N.Y.2d 344, 349 (1992). In addition, before the warrant was issued, the the mother also subscribed to a sworn accusatory instrument containing facts that were not materially different from those ascribed to her in the warrant application. Hetrick, 80 N.Y.2d at 347 (informant had signed a sworn statement containing same facts as those attributed to her in police officer's affidavit in support of search warrant); Hicks, 38 N.Y.2d at (officer's warrant application based on sworn statement of named witness).
b. Basis of Knowledge
Likewise, the informant's "basis of knowledge" was clearly established by her personal observations and was corroborated by the defendant's admissions to her and to the detective. People v. Bigelow, 66 N.Y.2d 417, 423 (1985). See also Hetrick, 80 N.Y.2d at 348 ; People v. Stroman, 293 A.D.2d 350 (1st Dept.2002) ; People v.. Shetler, 256 A.D.2d 1234 (4th Dept.1998).
c. Probable Cause Is Established
Thus, under these well established legal principles, the Court readily concludes that the subject warrant was indeed supported by probable cause. "[T]he challenged search warrant application, interpreted in a commonsense manner, provided sufficient information to support a reasonable belief that evidence of a crime [involving the defendant's child] would be found in the subject [phone]." People v. Green, 10 AD3d 731, 731–32 (2d Dept.2004), citations omitted.
d. There Was Probable Cause to Search for Evidence of Crimes Relating to Other Children
The search warrant affidavit here also provided sufficient information for a finding that there was probable cause to believe that evidence relating to crimes involving children other than this complainant might be located on the defendant's cell phone. Defendant's admissions that he "need[ed] help" and believed that he had a sexual addiction, along with his request, after this incident, that the child's mother procure for him a product that would "Kill [ ][his] Libido" collectively established a reasonable basis for searching for information tying this defendant to other sex crimes.
4. The Warrant Met the Particularity Requirement
a. The Warrant Is Not Overbroad
The Court further concludes that the warrant sufficiently describes the property to be seized, and is not overly broad.
As the abilities of applications contained in cell phones evolve, a warrant must be drafted with sufficient breadth to search the data of a cell phone to determine which application or file is of evidentiary value. As it is possible for a modern smartphone to run multiple applications simultaneously, a search warrant that allows an inspection of the entire cell phone is appropriate to determine, what, if any, applications and files pertain to the subject of the observed criminality.
People v. Frederick, 52 Misc.3d 648, 651 (Sup.Ct. Kings County 2016). See also People v. English, 52 Misc.3d 318, 321 (Sup.Ct. Bronx County 2016) ; Watkins, 46 Misc.3d at 210. Here, as in English, "the warrant on its face was sufficiently specific in that it identified: 1) a specific offense for which the police had established probable cause ...; 2) the place to be searched (defendant's cellphone); and 3) the items to be seized ... by their relation to the designated crime." 52 Misc.3d at 323.
b. The Overbreadth Argument is Moot
In any event, the motion to controvert the search warrant as overbroad is moot. The People have not indicated, in response to the Court's inquiry, that the search yielded any data, information, images or video involving children other than the defendant's daughter. English, 52 Misc.3d 318, 326 n. 6. Rather, the prosecution only intends to introduce against the defendant evidence retrieved from his phone that relates to the charged conduct.
c. The Warrant Is Severable
The Court would next note that even if the directive authorizing a search for information referring to other minor children rendered the warrant overbroad, that would not invalidate the entire search warrant. People v. Brown, 96 N.Y.2d 80 (2001) ; People v. Carter, 31 AD3d 1167, 1169 (4th Dept.2006). The invalid portion could be severed, the evidence arising from that portion suppressed, and the valid portion would still be upheld. 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." English, 52 Misc.3d at 325.
d. Plain View
Finally, in lawfully searching the phone for evidence pertaining to the incident involving this particular child, the plain view doctrine would apply to evidence of other crimes obtained during that search. Even when an area that is being searched is a cell phone or other electronic device, "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." Id. at 322.
5. Conclusion
For all of the foregoing reasons, the motion to controvert the search warrant is denied.
B. Disclosure of Psychiatric Records
The defendant also moves for an order directing the People to obtain and produce any psychiatric records pertaining to the child's mother, or to provide the defense with information that will enable it to obtain those records. This application is also denied.
1. Introduction
Section 33.13(c) of the Mental Hygiene Law indicates that psychiatric records are considered confidential and are not subject to review unless mandated by a court order "upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality...." It is necessary, therefore, for the party seeking disclosure to set forth a good faith factual basis demonstrating that the information requested may be relevant and material to the determination of guilt or innocence as to the charges contained in the accusatory instrument. People v. Gissendanner, 48 N.Y.2d 543, 548 (1979). "[S]ome factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping at a straw" is necessary. Id. at 550.
With specific respect to psychiatric records, evidence in the People's possession tending to reveal that a key witness "suffers from a psychiatric condition that may affect his or her reliability must be disclosed." People v. Velasquez, 49 Misc.3d 265, 267 (Crim Ct Bronx County 2015). In addition, in rare cases, even where the People are not in possession of psychiatric records, if "a prosecutor knows or has reason to know that a crucial prosecution witness has a [condition that might affect her reliability], that prosecutor has an affirmative duty to" obtain those records and, if they reveal such a condition, disclose them to the defense.
2. The Prosecutor Has No Information That Would Trigger the Duty to Disclose
Here, the defendant has failed satisfy this very high standard. Defense counsel's affidavit does not contain a sufficient factual basis for this Court to conclude that the prosecutor "knows or has reason to know" that the witness has a psychiatric condition at all, let alone one that might affect her reliability. That affidavit merely asserts, "upon information and belief," that the witness: (1) "is under the care of a psychiatrist or other mental health care professional"; (2) "began seeing a psychiatrist or other mental health care professional after giving birth to the child she has in common with the defendant," and; (3) has a diagnosis of postpartum depression and/or posttraumatic stress disorder." Miller Affidavit ¶¶ 14–16.
This completely unsourced set of assertions is plainly insufficient to give rise either to the actual or constructive knowledge that would trigger the People's duty to investigate. In all likelihood, the "information and belief" referred to in the affidavit simply means that the defendant told his attorney these things. But a bare claim by the defendant himself—a person with a motive to fabricate greater than any other—does not, by itself, give rise to this extraordinarily rare and intrusive discovery obligation. In this regard, this case is radically different from Velasquez. There, the disclosure request arose after the complainant herself told a defense investigator about her psychiatric history and the court quite rightly concluded that this disclosure triggered the prosecutor's duty to investigate. Id. at 266. By contrast, here, whether the information sources back to the defendant or to some other, unnamed source for defense counsel's "information and belief," the prosecutor's duty to investigate does not arise.
The People have candidly admitted that they are in possession of a three-page report detailing summarizing a psychiatric examination of this witness that took place about two months after the defendant was arrested. Kendall Affidavit ¶ 8. The People assert that this document "explicitly confirms" that the witness "is not currently suffering from any psychiatric disorder." Id. The Court has reviewed a copy of that report in camera and agrees with the People's characterization of it. That document contains no information that would trigger the People's duty to investigate the matter further, nor does it contain exculpatory information that would necessitate its disclosure to to the defense.
Accordingly, since the People neither know nor have reason to know that this witness has a psychiatric disorder that might affect her reliability, there is no duty to investigate her psychiatric history.
3. The Facts Alleged Do Not Give Rise to the Duty to Investigate and Disclose
Irrespective of their source, the assertions in defendant's motion to compel do not identify a condition that would trigger any duty to investigate. The defendant merely asserts that the complainant had seen a psychiatrist and has been diagnosed with postpartum depression"and/or" posttraumatic stress disorder. These conditions are not of the sort that would bear on the reliability or accuracy of the witness' testimony.
In Velasquez, the motion compel revealed that the complainant suffered from bipolar disorder and that her medication "cause both physical and mental side effects, including ... the inability to think or remember well." Id. at 266. This was a "sufficient showing that the complainant's psychiatric records might contain information bearing on the reliability and accuracy of her testimony ." Id. at 271. The instant case is clearly different.
First, defendant does not assert that the witness takes any medication at all, let alone one that might affect her memory or her ability to testify accurately. Cf. People v. Tirado, 109 AD3d 688 (4th Department 2013) (defendant was permitted to question witness about any medications that she was taking and whether they impaired her memory or affected her testimony).
Moreover, the motion to compel describes conditions—depression and PTSD—that do not cast doubt on the reliability of the mother's testimony. Such a finding arises when the diagnosis describes a condition that is generally understood to affect the memory, ability to be truthful, or perception of reality of the person afflicted with it. For example, in People v. Rensing, 14 N.Y.2d 210, 214 (1964), the Court of Appeals ordered a new trial based on nearly discovered evidence that a crucial witness was a paranoid schizophrenic, who had "visual and auditory hallucinations with marked memory defect." Another example can be seen in People v. Davis, 224 A.D.2d 449, 450 (1st Dept 1996), where a complainant who suffered memory loss after the charged crime was diagnosed with "confabulatory tendencies," which meant that he had "a tendency ... to fabricate details which he could not recall."
Depression and PTSD are markedly different. Indeed, in People v. Serrando, 184 A.D.2d 1094, 1094–95 (1st Dept 1992), records relating to a diagnosis of depression did not have to be disclosed to the defense, in part, because there was no "impairment of perception or memory, or any psychotic delusions." See also People v. Fullen, 133 AD3d 1235, 1236 (4th Dept 2015) (nothing in records containing a diagnosis of depression was relevant to the victim's credibility or competency to testify).
4. The People Have No Obligation to Investigate and Produce Records that Might Confirm Defendant's Speculation that the Complainant Did not See What She Believes She Saw
Defendant's final assertion is that the People have a duty to investigate and disclose the witness' psychiatric records to help confirm his theory of the defense. Specifically, defendant asserts—again on "information and belief"—that this witness made past allegations of sexual abuse against a "male authority figure in her family" when she was younger, and that she accordingly "she suffers from a combination of psychological disorders that have colored her perception of innocuous interactions with the defendant and their child in common." Miller Affidavit ¶ 17. There is simply no basis in law that would support the claim that an assertion like this triggers the prosecution's duty to investigate and disclose either the witness's psychological history or her history, if any, of sexual abuse. See People v. Walker, 223 A.D.2d 414 (1st Dept 1996) (court could see no merit in claim that victim's report of "unrelated sexual abuse" could "possibly trigger later imagined sexual abuse").
IV. CONCLUSION
The defendant's motion to controvert the search warrant is denied, as is the motion to compel the People to investigate and disclose complaining witness's psychiatric records.
This opinion shall constitute the decision and order of the Court.