Opinion
2299–2017
11-30-2017
The PEOPLE of the State of New York, v. Jordan GABRIEL, Defendant.
For the People: Sara Sullivan, Assistant District Attorney, New York County, One Hogan Place, New York, NY 10013 For defendant: Felice Conte, Neighborhood Defender Services of Harlem, 317 Lenox Avenue, New York, NY 10027
For the People: Sara Sullivan, Assistant District Attorney, New York County, One Hogan Place, New York, NY 10013
For defendant: Felice Conte, Neighborhood Defender Services of Harlem, 317 Lenox Avenue, New York, NY 10027
Abraham L. Clott, J.
This Court previously reserved decision of several matters raised by the defendant's omnibus motion dated November 2, 2017. This Court now denies the motion to controvert the search warrant for the defendant's residence at 557 West 150th Street, Apartment 44, New York, New York; grants the motion to controvert the search warrant issued for three cellular telephones seized from the residence during the arrest; and denies the motion to suppress evidence of statements that defendant allegedly made to police as the fruit of an unlawful detention or arrest.
Motion to Controvert Search Warrant for the Defendant's Home
The motion to controvert the search warrant for the premises is denied. The defense argues that the affidavit in support of the warrant did not establish the reliability of the confidential informant as required by the Aguilar–Spinelli test (see People v. Griminger , 71 NY2d 635, 638–639 [1988] ). The prosecutor, however, has supplied this court with the minutes of the warrant application, and the minutes show that the informant testified under oath in front of the issuing judge, who found the informant reliable. The Aguilar–Spinelli test does not apply to a case in which the informant testified under oath in support of the warrant application (see People v. Taylor , 73 NY2d 683, 688 [1989] ). Furthermore, because the informant testified in support of the application, no Darden hearing is required (see People v. Edwards , 95 NY2d 486, 493 [2000] ; People v. Jones , 72 AD3d 452, 453 [1st Dept 2010] ).
The search warrant was supported by information that was not stale. The information redacted from the supporting affidavit and the testimony of the confidential information demonstrated ongoing narcotics activity at the residence sufficient to establish that the evidence described in the warrant would be found at the residence when the warrant was executed.
Contrary to defendant's other argument, the search warrant described the property to be seized with particularity and was not overbroad. The "wide range of drug materials" sought by the warrant (Defense Motion to Controvert dated August 28, 2017, at 10) was limited to specified items used to package, sell, and ingest "crack/cocaine," to any writings or images that would evidence such criminal activity, and to any currency and other evidence of proceeds from the manufacture and sale of "crack/cocaine." The references to "crack/cocaine" were sufficient to identify the alleged criminal offense (Defense Motion to Controvert Addendum dated October 30, 2017, at ¶¶ 7–8). Furthermore, based upon the information contained in the warrant application, the warrant reasonably authorized the seizure of all cellphones and other electronic devices capable of storing digital information. This court, therefore, disagrees with the argument that the search warrant contained wording "far too broad and nondescript" and that the "quantity and volume" of material sought was "unreasonable" (Defense Motion to Controvert dated August 28, 2017, at 10).
Motion to Controvert the Search Warrant for the Cellphones
This court agrees, however, with defendant's argument that the cellphone search warrant was overbroad and void on its face because it did not identify or limit the scope of the warrant by identifying any crime in particular. A search warrant that permits a search for evidence of unspecified crimes or unspecified criminal activity lacks particularity (see e.g. United States v. Galpin , 720 F3d 436, 447 [2d Cir 2013] [warrant that authorized search "for evidence of violations of 'NYS Penal Law and or Federal Statutes' " lacked particularity]; Cassady v. Goering , 567 F3d 628, 639–640 [10th Cir 2009] [language that "permits seizure of 'all other evidence of criminal activity,' without any limitation or reference to a specific crime" lacked particularity]; United States v. Stefonek , 179 F3d 1030, 1032–1033 [7th Cir 1999] [language authorizing a search for "evidence of a crime" lacked particularity] [quotation marks in original] ). Similarly, language in a warrant that directs a search for any property "the possession of which would be considered contraband" is overbroad and lacks particularity ( People v. Brown , 96 NY2d 80, 84–85 [2001] [internal quotation marks omitted] ). A warrant directing such a broad, open-ended search for evidence of a crime puts no limit upon the discretion of the searching officer and is, effectively, a general warrant (see United States v. George , 975 F2d 72, 76 [2d Cir 1992] ["authorization to search for 'evidence of a crime,' that is to say, any crime, is so broad as to constitute a general warrant"]; People v. Brown , 96 NY2d at 85 [defective language "granted the executing officers unfettered discretion to look anywhere and seize anything they thought 'would be considered contraband' "] ).
The cellphone search warrant, here, is overbroad because it allowed the police to search for evidence of any wrong doing at all and therefore did not limit the searching police officer's discretion. The warrant directed police to seize various forms of information and data that had been used or possessed "to commit or conceal the commission of the crime(s) of," and that such information and data was evidence that "tends to demonstrate that said crime(s) were committed and that a particular person participated in the commission of said crime" (Search Warrant N0525–2017 at 1). The warrant further stated that the information described in subparagraph (c) was evidence "showing or tending to show the commission of, or connecting or tending to connect a person to, the above-described crimes and conspiracy and attempts to commit those crimes," but no specific crimes or offenses were described or identified anywhere in the warrant. The failure to specify the suspected criminal activity in the warrant is a fatal defect that invalidates the warrant and requires suppression of any evidence obtained from a search conducted pursuant to the warrant (see United States v. Galpin , 720 F3d at 447 ; see also United States v. Rosa , 626 F3d 56, 62 [2d Cir 2010] [finding warrant "defective in failing to link the items to be searched and seized to the suspected criminal activity"]; compare People v. English , 52 Misc 3d 318, 322 [Sup Ct, Bronx County 2016, Barrett, J.] [ruling particularity requirement satisfied by warrant that identified, among other things, information on cellphone to be seized "by their relation to the designated crime"] ).
The cellphone search warrant cannot be upheld on the ground that the warrant can be read together with the supporting affidavit to identify the suspected crime or criminal activity (see Tatham Aff at 4). In Groh v. Ramirez , the United States Supreme Court rejected such an argument, ruling that any supporting documents could not be used to uphold a search warrant that lacked a description of the property to be seized if those documents had not been incorporated by reference into the warrant ( 540 US 551, 557–558 [2004] ). The Court stated that "[t]he fact that the application adequately described the things to be seized does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents" ( id. at 557 [emphasis in original and internal quotation marks omitted] ). Thus, the particularity defect in the cellphone search warrant in this case cannot be cured by reference to the supporting affidavit (see id. ; see also United States v. Rosa , 626 F3d at 64 [recognizing that "unincorporated, unattached supporting documents" can no longer be relied upon to cure a particularity defect]; People v. English , 52 Misc 3d at 325 ["Because this Court may no longer rely on unincorporated supporting documents to cure an otherwise defective search warrant, with respect to the search of the electronic devices, the warrant fails for lack of particularity"] ).
Motion to Suppress Statements
The motion to suppress evidence of statements that defendant allegedly made to police as the fruit of an unlawful detention or arrest is denied. The information from the confidential informant established probable cause to arrest defendant for selling narcotics. Therefore, the statements that defendant allegedly made during the execution of the search warrant were not the fruit of an unlawful arrest.