Opinion
450/2018
06-21-2019
The PEOPLE of the State of New York, Plaintiff, v. Adren WALTON, Defendant.
Honorable Michael McMahon, District Attorney, Richmond County by: ADA Matthew Signorile, 130 Stuyvesant Place, Staten Island, New York 10301, (718) 556-7107 The Legal Aid Society by: Marion Elizabeth Campbell, Esq., 60 Bay Street, Staten Island, New York 10301, (347) 390-1862
Honorable Michael McMahon, District Attorney, Richmond County by: ADA Matthew Signorile, 130 Stuyvesant Place, Staten Island, New York 10301, (718) 556-7107
The Legal Aid Society by: Marion Elizabeth Campbell, Esq., 60 Bay Street, Staten Island, New York 10301, (347) 390-1862
Mario F. Mattei, J.
The defendant was arrested on September 14, 2018, and charged with Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree.
On September 27, 2018, the defendant was indicted for three felonies: Criminal Sale of a Controlled Substance in the Third Degree (P.L. 220.39), for allegedly selling a ziploc bag of crack cocaine to a person named Wilson; Criminal Possession of a Controlled Substance in the Third Degree (P.L. 220.16[1] ), under the intent to sell theory for 11 individual ziploc bags containing crack cocaine recovered from his person shortly after the sale; and Criminal Possession of a Controlled Substance in the Fifth Degree (P.L. 220.09), based upon the weight of the 11 ziploc bags.
On October 2, 2018, this indictment was filed. On October 9, 2018, the defendant was arraigned on the charges contained in the indictment.
On October 11, 2018, a search warrant was issued to search the contents of a cell phone seized from the defendant's person when he was arrested.
The defendant has moved to controvert the warrant, and suppress evidence obtained from the cell phone, asserting that there was no probable cause to issue the warrant, that the warrant was overbroad, and that the search was not particularized. The People have responded in opposition.
After considering the various motions and arguments, and the applicable law, the motion to controvert and suppress is denied. The defendant's request for a Mapp hearing regarding the execution of the warrant is also denied.
DISCUSSION
Personal property may be seized pursuant to a search warrant if it constitutes evidence or tends to demonstrate that an offense was committed ( CPL 690.10[4] ). Absent exigent circumstances, a search warrant is required before law enforcement may search a person's cell phone, even if the cell phone is acquired incident to a lawful arrest ( Riley v. California , 573 U.S. 373 [2014] ; People v. Magee , 135 AD3d 1176 [3d Dept 2016] ). "In order to establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place" ( People v. Alberts , 161 AD3d 1298 [3d Dept 2018] [internal citations omitted], lv denied 31 NY3d 1114 [2018] ). The warrant application for the defendant's phone was supported by, among other things, the first person observations of Police Officer Gary Leite, which included sworn allegations that he observed the defendant sell another person a small quantity of crack cocaine, recovered that crack cocaine from the buyer, and then recovered 11 similar ziploc bags of crack cocaine from the defendant when he arrested him. Based on the officers extensive training and experience involving narcotics arrests and investigations, he swore that drug dealers often use cell phones in the course of selling and purchasing drugs to sell. The use of cell phones in many criminal ventures is well recognized. "Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals" (Riley v. California , supra at 401).
Since "the ultimate touchstone of the Fourth Amendment is reasonableness" (Brigham City v. Stuart , 546 US 398 [2006]), the question presented in this case is whether or not it is reasonable to believe that, based upon the sworn allegations presented by the Officer Leite for the warrant, it was reasonable to believe that evidence of narcotics dealing would be found on the defendant's phone. The answer in this case is "Yes." "In the cell phone context ... it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurred" (Riley v. California , supra at 450). In this day and age, it is common knowledge that drug dealers use cell phones to send and receive calls and texts to conduct their business. It is common knowledge that cell phones often have contact lists which contain the contact numbers for a narcotics dealer's suppliers and customers. Cell phones often contain pictures relating to the narcotics themselves and monies obtained in transactions. Since the defendant was charged with the sale and possession of narcotics with the intent to sell them, it is reasonable to assume that his cell phone would contain evidence in the form of information pertaining to those charges. While "common sense alone does not establish probable cause to search a person's cell phone" ( People v. Jemmott , 164 AD3d 953 [3d Dept 2018], lv denied 32 NY3d 1112 [2018] ), a search warrant application "must be considered in the clear light of everyday experience and accorded all reasonable inferences" ( People v. Hanlon , 36 NY2d 549 [1975] ), and here, this common sense was part of "the critical facts and circumstances ... which were made known to the issuing Magistrate at the time the warrant application was determined" ( People v. Sall , 295 AD2d 812 [3d Dept 2002], lv denied 98 NY2d 766 [2002] ). In sum, the warrant contained probable cause to believe that evidence of the defendant's crimes would be contained on his cell phone.
The defendant's contentions that the warrant was overbroad and not sufficiently particularized are not persuasive.
"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 [Sup Ct, Kings County 2016] ; People v. Yun Suhg Rhee , 54 Misc 3d 1217(A) [Crim Ct, New York County 2017] ). This point of view is consistent with Federal cases involving computer searches "which noted that a search of computer files "c[an] not be limited to reviewing only the files' designation or labeling, because the designation or labeling of files on a computer can easily be manipulated to hide their substance" ( United States v. Williams , 592 F.3d 511, 522 [4th Cir. 2010] ) and "illegal activity may ... well be coded or otherwise disguised" ( United States v. Burgess , 576 F.3d 1078, 1093 [10th Cir. 2009] ). Since it is a part of human nature that most people committing crimes or holding evidence of a crime want to conceal it, permission to search an entire computer is necessary because "few people keep documents of their criminal transactions in a folder marked drug records" ( United Sates v. Riley , 906 F.2d 841, 845 [2d Cir. 1990] ).
"To be sufficiently particular a warrant must (1) identify the specific offense for which the police have established probable cause, (2) describe the place or places to be searched, and (3) specify the items to be seized by their relation to a designated crime" (People v Frederick , supra; [citations omitted] ). Here, the warrant authorized only the search and seizure of items related to the crimes of the sale and possession of narcotics. That there was an exhaustive list of items which were each related to the unlawful sale and possession of narcotics does not make the warrant any less particular.
The use of hearing minutes and lawsuits to attack the credibility of Officer Leite with regard to his statements in the warrant fails for several reasons. First, this court has found that the officer and his testimony at the hearing were credible. Secondly, the three lawsuits involved had nothing to do with the officer's credibility. One case was settled by the Corporation Counsel with no finding of wrongdoing or admission of wrongdoing by the officer, and at the hearing conducted in this case Officer Leite explained his conduct in the incident which was the subject matter of the lawsuit to the court's satisfaction; a second case did not contain particularized allegations against this particular officer; and a third case is pending. Most importantly, none of the lawsuits involved allegations that went to the credibility of the officer.
A separate written decision with regard to the hearing was issued.
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The remaining contentions with regard to the suppression of the evidence seized pursuant to the warrant for the defendant's cell phone have been considered by the court and are rejected.
CONCLUSION
The warrant for the defendant's cell phone was supported by probable cause; the warrant was not overbroad and was particular as to what items the police could search for; therefore, the defendant's motions to controvert the warrant and suppress evidence obtained from its execution is denied.
This constitutes the decision and order of the court.