Opinion
Ind. No. 1953/21
02-25-2022
The PEOPLE of the State of New York, v. Lawrence TONNER, Defendant.
Counsel for the People: John Dunn, Assistant District Attorney. Counsel for the defendant: Elizabeth Anne Skeen, Of Counsel, The Legal Aid Society.
Counsel for the People: John Dunn, Assistant District Attorney.
Counsel for the defendant: Elizabeth Anne Skeen, Of Counsel, The Legal Aid Society.
April A. Newbauer, J.
The defendant Lawrence Tonner has moved to controvert a search warrant issued in connection with this case. The motion is decided as follows:
The Warrant Application
Tonner has been indicted for grand larceny in the third degree (PL § 155.35(1)). According to the affidavit filed in support of the warrant, Shamco Management Co. ("Shamco") employed Tonner as a leasing agent from July 28, 2020 to March 12, 2021. Tonner's responsibilities included collecting security deposits and first-month lease payments for newly rented apartments from Shamco tenants and then sending those payments to Shamco's headquarters. Beginning in the fall of 2020, Shamco believed that Tonner had collected over $20,000 in payments from Shamco tenants without sending those payments to Shamco. Employees of Shamco reported this conduct to NYPD Detective Joseph Cope on March 11, 2021, and Tonner resigned from Shamco the following day. Detective Cope's affidavit in support of the search warrant states that on April 7, 2021, Tonner sent an email from his Google email account to a Shamco employee that threatened to report Shamco to various regulatory agencies for improper business practices if Shamco continued to participate in the investigation and prosecution of this case. On April 21, 2021, Detective Cope arrested Tonner after Tonner surrendered to the police.
On May 20, 2021, Judge Abraham Clott of this court issued a search warrant that authorized the search and seizure of a Google email account associated with Tonner stored at premises controlled by Google. The issuing judge found reasonable and probable cause to believe that the email account would contain evidence of grand larceny in the third degree and attempted coercion in the third degree. The warrant authorized the search and seizure of all email content from June 27, 2020 to April 21, 2021, all address book information, all subscriber and payment information, all transactional records, all customer correspondence, and all preserved or backup records. According to the People, law enforcement executed the search warrant on June 22, 2021. On November 29, 2021, defense counsel filed the instant motion to controvert the search warrant and suppress all evidence obtained as a result of unlawful searches and seizures.
Discussion
Tonner argues that the warrant should be controverted as law enforcement did not timely execute the warrant. In their affirmation in response to the motion to controvert, the People concede that the search warrant was not timely executed. A search warrant must be executed not more than ten days after the date it is issued, and then it must be returned to the court "without unnecessary delay." CPL § 690.30(1). If execution occurs after ten days, the property recovered must be suppressed. See People v. Kiah , 156 AD3d 1054 (3d Dept 2017) ; People v. Jacobowitz , 89 AD2d 625 (2d Dept 1982). As discussed above, Judge Clott issued the search warrant on May 20, 2021, but law enforcement did not execute the warrant until June 22, 2021—well beyond CPL § 690.30(1) ’s ten-day deadline. Therefore, the court must grant Tonner's motion to controvert and suppress all evidence recovered pursuant to the warrant.
Tonner raises several other arguments in support of the motion to controvert, including that the search warrant was not supported by probable cause and that the contents of the warrant were overbroad and insufficiently particularized. The court declines to address these arguments, as the CPL § 690.30(1) violation is dispositive, such that resolving these issues would not change the result of the instant motion.
Given this ruling, the People may not introduce any evidence or information acquired through the execution of the search warrant at trial. Additionally, the People may not subject the information recovered from the warrant to subsequent searches based on new information and theories developed about the case. Cf. United States v. Wey , 256 FSupp3d 355, 406 (SDNY 2017) (stating that there is "no authority suggesting that simply because it has retained all originally searchable electronic materials, the Government is permitted to return to the proverbial well months or years after the relevant warrant has expired to make another sweep for relevant evidence, armed with newly refined search criteria and novel case theories"); see also People v. Thompson , 51 Misc 3d 693 (Sup Ct, NY County 2016) (holding that it is unreasonable for government officials to continue to search "at their leisure" or when "some new issue in this case might arise"). Finally, if law enforcement acquired additional information through knowledge of the contents of the Google email account which has now been suppressed, the People must disclose what if any information was acquired, as it may be subject to an independent source analysis at trial. See generally People v. Burr , 70 NY2d 354 (1987).
Accordingly, Tonner's motion to controvert the search warrant is granted and all evidence recovered pursuant to the warrant is suppressed.
This shall constitute the decision and order of the court.