Opinion
Ind. No. 72602/21
06-26-2023
The PEOPLE of the State of New York v. Deondre JACKSON, Defendant.
The defendant moves to controvert three search warrants. One, a warrant for the defendant's iPhone that was recovered at the time of his arrest on May 26, 2020. The other two, warrants that pertain to information obtained from the defendant's Facebook and Snapchat accounts. In the alternative, the defendant requests a Mapp Dunaway hearing. The People oppose the defendant's motions in a consolidated response. The defendant filed an affirmation in reply to the People's joint opposition and the People filed a sur-reply. For the reasons that follow, the motion is granted in part and held in abeyance pending a determination of standing as to the Facebook and Snapchat warrants.
Background
On May 26, 2020, the defendant was arrested in Queens County for Criminal Sexual Act in the Second Degree, and other related charges stemming from allegations made by the complainaint, a minor, who stated that in 2019, when she was fourteen years old, she had sexual relations with the defendant. She further alleged that the defendant had taken nude photographs of her and recorded them having sexual intercourse. The defendant, she said, posted the photographs on his Facebook page, "Dre_Liszt" and posted the video on his Snapchat account, username "Dre_Liszt."
The defendant subsequently plead guilty and was adjudicated a Youthful Offender in Queens County for these charges.
On April 8, 2020, prior to the defendant's arrest, Detective Adaszewski received a Crimestoppers tip, indicating that sex tapes of numerous underage girls were posted to a Facebook account in the name of "Dre_Liszt" www.facebook.com/littforitz and that several videos of underage girls having sex were posted on a Snapchat account with the username and vanity name of "Dre_Liszt", "realdreliszt," respectively.
On August 17, 2020, Det. Adaszewski appeared in Queens County Criminal Court with an application for a search warrant for an Apple iPhone (Phone Warrant) recovered from the defendant at the time of his arrest. On August 20, 2020 Det. Adaszewski applied for two additional search warrants (collectively, Social Media Warrants) for records pertaining to Facebook account "littforitz"; name "Dre_Lizst" User Number 100009723128840 and Snapchat account, "Dre_Lizst", "realdreliszt" for the time period of January 1, 2019 to the date of the warrant, August 20, 2020. All three warrants alleged that reasonable cause existed to believe that the crimes of Use of a Child in a Sexual Performance (P.L. § 263.05), Promoting a Sexual Performance by a Child (P.L. § 263.15) and Possessing a Sexual Performance by a Child as well as a Conspiracy to commit those crimes would be found contained within the above-mentioned property. The NYPD subsequently executed the three search warrants and obtained photographs, videos, and communications from August 1, 2018 to April 24, 2022 resulting in the above-referenced indictments.
On August 18, 2020 Det. Adaszewski applied for, and a Judge signed, a corrected Phone Warrant after it was discovered there was an erroneous digit in the voucher number for the iPhone in the initial warrant.
Discussion
Defendant argues that all three warrants lacked probable cause, are overbroad and non-particularized, and therefore must be declared invalid. Specifically, he argues that the information provided by the complainant does not provide a nexus between the iPhone recovered on May 26, 2020 and the unidentified phone used sometime in 2019, as the warrant application does not indicate that a cell phone was used to take the pictures, only that the defendant had taken nude "pictures" of the complainant and posted them to Facebook. Additionally, even if the Phone Warrant established probable cause to search the iPhone, the warrant's unlimited scope, all of 2019, constituted a general warrant in that it authorized a search beyond what the probable cause supported. Furthermore, the defendant argues that the Phone Warrant was overbroad and not particularized in that it sought all electronically stored documents; all communications regarding sexually explicit conduct between adults and children; evidence of any online or remote storage; records of any electronic correspondence involving Mr. Jackson's screen name, Dre Liszt; any software used for communicating or storing said data; records of ownership of said property and any programs or cameras contained therein without time limitation (emphasis added). The warrant, the defendant therefore asserts, was not particularized to this specific iPhone or a specific time-frame.
With respect to the Social Media Warrants the defendant argues that they too were overbroad and not particularized in that they permitted searches for a time period that far exceeded the time-frame alleged by the complainant. Defendant argues that based on this alone, suppression is required pursuant to People v. Thompson , 178 AD3d 457, (1st Dept 2019). Furthermore, the Social Media Warrants were overbroad and not particularized in that they were not limited to evidence concerning the complainant, as they authorized a search of inter alia : all contact and personal identifying information; any and all photographs and videos sent or received by or tagging, the Facebook account; all activity logs and all documents showing the user's posts and activities; all records regarding the devices and internet browsers associated with the user; any and all IP addresses and time-stamps for the account; Snap logs of photos and videos sent to or from the account; contents of chat messages for the account; deleted content; Friends List; any and all audio and video notes sent or received, Snap logs of photos and videos; and literally anything within the Facebook and Snapchat accounts data including location information (emphasis added).
In Thompson, the First Department reversed a conviction in a case where the defendant used his cell phone to send sexually explicit photos to a minor on a single day, but the search warrant authorized the search of the defendant's phone for his internet usage over a period of nine months and, with respect to other data, there was no date limitation (emphasis added). In that case the court found the resulting search of the defendant's browsing history and emails for almost a year predating the commission of the crime to be overbroad.
The People contend that all of the warrants were supported by probable cause and were sufficiently particularized within the meaning of the Fourth Amendment. With respect to the Social Media Warrants, the People argue that the defendant lacks standing to contest them.
The Phone Warrant
Both the United States and New York State Constitutions provide that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend. IV ; NY Const. art I, § 12.
A defendant is entitled to challenge a search warrant on the ground that there was no actual showing of probable cause. People v. Chen, 72 Misc 3d 1220[A] [Sup Ct, Kings County 2021]citing Franks v. Delaware , 438 US 154 (1978). Furthermore, in those reported New York cases where a court has found probable cause to search the contents of a particular cell phone, the issuing court found some nexus between the crime and the target cell phone. People v. Sime , 61 Misc 3d 896 (NY County 2018) ; People v. English , 52 Misc 3d 318, 32 N.Y.S.3d 837 (Bronx Co. 2016) ; People v. Phipps , 8 Misc 3d 1008[A], (Sup Ct, Kings County (2005)).
Here, the alleged probable cause to search the iPhone was based solely on the limited information provided by the complainant to wit:
"I am informed by [the complainant] that in 2019, she had a relationship with defendant Deondre Jackson and he had taken pictures of her nude and then the defendant posted them on Facebook. She further stated that they engaged in sexual intercourse and he recorded it on his cell phone. He posted the video to his Snapchat account. [The complainant] informed me that at the time of these incidents she was 14 years old."
Inexplicably although the affidavit indicates that the criminal acts took place when the complainant was 14 years old, the People fail to narrow the date range of the warrant accordingly. Presumably the complainant was either 13 and turned 14 in 2019 or she was 14 and turned 15 in 2019.
Phone Warrant affidavit p.4 ¶ 8.
Initially, there is zero information provided in the affidavit that the nude pictures were taken with a cell phone, let alone the iPhone subsequently recovered from the defendant almost six months later at the time of his arrest. Of course, a search warrant must describe with particularity the place to be searched with enough specificity as to leave no discretion to the police in order to protect the right of privacy from arbitrary intrusion by law enforcement (see People v. Brown , 96 NY2d 80, 84 [2001] ). The search warrant application for the Phone Warrant does not contain any description of the camera or phone alleged to have been used by the defendant at the time of the charged crimes and is therefore devoid of factual allegations linking the iPhone in the defendant's possession at the time of arrest to the camera or phone the defendant is alleged to have used. As such, the People failed to establish a nexus supported by probable cause that the iPhone recovered from the defendant was the item used to commit the alleged crimes. The People, therefore, cannot satisfy the required element of probable cause to believe evidence of the crime will be found in the location to be searched.
The Phone Warrant did not reference the defendant's phone number. Although the complainant indicated that video was taken with a cell phone, there is no evidence that the video was taken with the iPhone recovered on May 26, 2020.
Given that the Phone Warrant lacked probable cause to believe that evidence of the crimes charged would be found on the device actually seized, the defendant's remaining contentions as to the Phone Warrant are rendered academic and need not be addressed by this Court.
Therefore, the defendant's motion to controvert the August 18, 2020 Phone Warrant is hereby GRANTED, and any property or information obtained as a result of the execution of said warrant is suppressed pursuant to the Fruit of the Poisonous Tree Doctrine. See Wong Sun v. U.S. , 371 U.S. 471 (1963) ; Nardone v. U.S., 308 U.S. 338 (1939) ; People v. Johnson , 66 NY2d 398 (1985) ; People v. Hendricks , 25 NY2d 129 (1969) ; People v. Nichols , 117 AD3d 881 (2d Dept. 2014) ; People v. Isaacs , 101 AD3d 1152 (2d Dept. 2012).
The Social Media Warrants
Initially the People argue that the defendant lacks standing to contest the Social Media Warrant as he has not established he had an expectation of privacy in the accounts’ data. To challenge a search under the Fourth Amendment, the defendant must first establish "standing" before the court considers probable cause and the other issues raised by the defendant's motion. People v. Sime, supra at 902. The United States and New York State Constitutions protect a person's right to be secure from "unreasonable searches and seizures " ( U.S. Const Amend IV ; NY Const, art I, § 12 ) (emphasis supplied). A search does not occur "unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable’ " ( Kyllo v. United States , 533 U.S. 27, 33, [2001], quoting California v. Ciraolo , 476 U.S. 207, 211 [1986] ). Similarly, standing to challenge government action as an unconstitutional search depends on "whether the person ... has a legitimate expectation of privacy in the invaded place" ( Minnesota v. Carter , 525 US 83, 88 [1998], quoting Rakas v. Illinois , 439 U.S. 128, 143 [1978] ; see People v. Ramirez-Portoreal , 88 NY2d 99, 108 [1996]. The burden is on the defendant to establish standing by showing a legitimate privacy expectation in the place searched (see Rakas v. Illinois, supra at 144; People v. Ramirez-Portoreal , supra at 108. The Sime court, supra , in what appears to be a decision of first impression in New York, found that the defendant lacked standing to controvert a warrant for two Instagram accounts without first establishing proof of her ownership of and privacy settings for said accounts. The Sime Court therefore held the motion to controvert in abeyance and ordered a hearing. See also, People v. Covlin , 58 Misc 3d 996 (Sup Ct, NY County 2018) ; subsequently affirmed at 205 AD3d 578 (1st Dept 2022) ; leave denied 38 NY3d 1149 (2022).
The Sime Court ultimately found that the defendant did not establish standing at the hearing. People v. Sime , 62 Misc 3d 429 (NY County 2018).
It is well-settled that what a person seeks to preserve as private may be constitutionally protected, and what a person exposes to the public may not be constitutionally protected ( Katz v. United States , 389 U.S. 347, 350, [1967] ). While "[i]ndividuals generally possess a reasonable expectation of privacy in their home computers" ( United States v. Lifshitz , 369 F3d 173, 190 [2d Cir. 2004] ), "this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet" ( United States v. Meregildo , 883 F Supp 2d 523, 525 [SD NY 2012], citing Lifshitz , 369 F3d at 190 ). In this case, the defendant allegedly posted photographs and video to the public from social media accounts - the People in fact indicate that the complainant viewed the pictures and video of herself on the defendant's Facebook and Snapchat accounts, respectively. "A central element in determining whether an individual has a reasonable expectation of privacy is the effort made to keep the subject information private" ( In re Smartphone Geolocation Data Application , 977 F Supp 2d 129, 146 [EDNY 2013] ; United States v. Westley , F Supp 3d, 2018 [D. Conn 2018]). As the submissions in this case do not resolve this threshold issue, the Court holds the defendant's remaining contentions in abeyance pending a hearing for a determination as to whether the defendant has standing to contest the Social Media Warrants.
The defendant's reliance on Carpenter v. United States as having conveyed automatic standing is misplaced. Carpenter involved Cell Site Location Infomation (CSLI) tracking of the defendant's historical movements not information expressly shared on social media. Notably, the Carpenter Court's decision did not abrogate the third party doctrine, but rather was narrowly tailored to the "the unique nature of cell phone location information." ––– U.S. ––––, ––––, 138 S.Ct 2206, 2220 (2018).
Conclusion
The defendant's motion to controvert the Phone Warrant is GRANTED, the motions to controvert the Social Media Warrants are held in abeyance pending a hearing as discussed supra.
This constitutes the Decision and Order of this Court.