People v Russell

[*1] People v Russell 2018 NY Slip Op 51541(U) Decided on October 31, 2018 Supreme Court, Kings County D'Emic, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 31, 2018
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Ayele Russell, Defendant.



1384/2018



For Defendant: The Legal Aid Society (Daniel Moore, Esq.)

For the People: Eric Gonzalez, District Attorney Kings County, Brooklyn, NY (Amanda Hersh, Esq.)
Matthew J. D'Emic, J.

The defendant moves for an order, pursuant to CPL §§ 690 and 710, controverting the search warrant and suppressing all physical evidence obtained upon its execution. Upon consideration of the defendant's moving papers, the People's opposition papers, the affidavit in support of the search warrant and the warrant itself, the defendant's motion to controvert is granted. Except as to any evidence mapping the defendant's physical location from February 11, 2018 through the defendant's arrest on February 12, 2018, the physical evidence seized upon the execution of the warrant is hereby suppressed.

On March 15, 2018, the defendant was arraigned on the captioned indictment, which charges him with attempted murder in the second degree, aggravated harassment in the second degree, and other related offenses stemming from three discrete incidents involving Lillith Gordon-Powell ("complainant"), with whom the defendant previously shared an intimate relationship.

According to the People, on November 6, 2017, the defendant slapped the complainant about her chest and then fled the location of the occurrence; he later called the complainant and threatened to kill her if she reported the matter to the authorities. On January 29, 2018, the defendant punched the complainant about the face with a closed fist.

On February 11, 2018, the defendant and the complainant began to argue inside Footprint Café in Brooklyn. The dispute continued after they left the establishment; once they were outside, the defendant purportedly bit the complainant and struck her with a closed fist. The complainant then entered her vehicle and began to drive home with the defendant. At the defendant's direction, the complainant pulled her vehicle over to the side of the road, at which time the defendant placed the strap of the complainant's seatbelt around her neck and applied [*2]pressure while threatening to kill her. When the complainant attempted to drive away, the defendant grabbed the steering wheel, causing the complainant's vehicle to crash into multiple parked cars. The defendant fled the location, but officers apprehended him shortly thereafter, a few blocks away from the collision, at which time they recovered a black Samsung cell phone ("Samsung") from his person.

On April 24, 2018, Police Officer Andrew Weiss appeared before a judge of this court to apply for a search warrant authorizing officers to search the defendant's Samsung and to seize two categories of information discovered pursuant to its execution: 1) harassing messages the defendant sent to the complainant, and 2) cell site location history for February 11, 2018 through February 12, 2018 to corroborate the complainant's narrative of events by placing the defendant in the same location as the complainant. After considering Officer Weiss' affidavit in support of the warrant application, the judge determined that there existed sufficient cause to issue the warrant. Upon execution of the warrant, officers recovered information pertaining to, inter alia, the defendant's call logs, video data files, SMS messages and a time line of his usage for the period between February 8, 2018 and February 12, 2018.

The defendant argues that the warrant failed to satisfy the particularity requirements of the Fourth Amendment to the United States Constitution and section 12 of article 1 of the New York Constitution because it authorized law enforcement agents to search all of the data stored on the Samsung without limitation. On similar grounds, the defendant avers that the warrant application only established probable cause to search certain types of data or files on the phone, and that the parameters of the material subject to search and seizure were overly broad, rendering the warrant defective.

Both the Federal and State Constitutions require that a warrant be issued only upon probable cause (People v Hetrick, 80 NY2d 344, 348 [1992]). A warrant application establishes probable cause when it contains "information sufficient to support a reasonable belief that . . . evidence of a crime may be found in a certain place" (People v Bigelow, 66 NY2d 417, 423 [1985]). In reviewing the sufficiency of a search warrant, the court is limited to the four corners of the affidavit and any oral testimony given in support of the warrant (People v Nieves, 36 NY2d 396, 402 [1975]). A search warrant that was approved by an independent Magistrate has a presumption of validity (People v Castillo, 80 NY2d 578, 585 [1992]). Accordingly, a reviewing court's examination is limited to the issue of whether the issuing judge could reasonably conclude that probable cause existed (id.; People v Serrano, 93 NY2d 73, 76 [1999]).

As a preliminary matter, it is evident that facts and circumstances before the issuing judge at the time the warrant application was decided were sufficient to establish probable cause to believe that the defendant committed all of the offenses charged in the indictment: attempted assault in the third degree, menacing in the third degree, and two counts of aggravated harassment in the second degree on November 6, 2017; assault in the third degree, criminal obstruction of breathing or blood circulation, and menacing in the third degree on January 29, 2018; and attempted murder in the second degree, strangulation in the second degree, reckless endangerment in the first and second degrees, assault in the second and third degrees, petit larceny, criminal possession of stolen property, criminal possession of a weapon in the fourth degree, and menacing in the third degree on February 12, 2018.

The crimes addressed in the warrant application essentially mirror those charged in the [*3]indictment, however, Officer Weiss' affidavit alleges additional incidents of aggravated harassment. The indictment accuses the defendant of two counts of aggravated harassment in the second degree for calling the complainant on November 6, 2017 and threatening to kill her if she went to the police. In addition to apprising the issuing court of that particular threat, Officer Weiss' affidavit also indicated that the complainant informed him that the defendant sent her harassing messages from his phone via text and the social media app "Whatsapp" between November 7, 2017 and February 12, 2018 ("Uncharged Period"). That distinction is crucial here. Although the indictment itself furnished probable cause with respect to the crimes charged therein, the warrant application was the sole source of information upon which the issuing court's probable cause determination for the Uncharged Period could be based.[FN1]

The People argue that the warrant application supported a reasonable belief that a search of the data on the defendant's Samsung would reveal messages proving that the defendant engaged in conduct constituting harassment during the Uncharged Period. As proof thereof, Officer Weiss' affidavit indicates only that the defendant sent the complainant "harassing messages" via text and Whatsapp without describing their substance. Such conclusory allegations were insufficient to establish probable cause to believe that the defendant committed aggravated harassment in the second degree on or about and between November 7, 2017 and February 12, 2018 (People v Augustus, 163 AD3d 981, 982 [2d Dept 2018] [internal citations omitted]). The People have not indicated that the issuing judge considered any information other than that which was provided in Officer Weiss' affidavit when determining the warrant application. Consequently, the warrant application could not have furnished sufficient evidence to support a reasonable belief that a search of the Samsung's data generated during that period would produce evidence of a crime - namely, threatening messages sent by the defendant between November 7, 2017 and February 12, 2018 (id.).

Both state and federal constitutional law require a warrant to include descriptions that are "sufficiently definite to enable the searcher to identify the persons, places or things that the Magistrate has previously determined should be searched or seized" (Nieves, 36 NY2d at 401). "The particularity requirement [for search warrants] has three components. First, a warrant must identify the specific offense for which the police have established probable cause . . . Second, a warrant must describe the place to be searched . . . Third, the warrant must specify the items to be seized by their relation to designated crimes" (United States v Galpin, 720 F3d 436, 445-446 [2d Cir 2013] [internal citation and quotation marks omitted]).

The People argue that the warrant was sufficiently particular because it limited the search to "evidence of threats, harassment, or assaults as set forth in the first paragraph of the warrant." As a preliminary matter, the People's assertion misconstrues the warrant and the warrant application. The warrant's directive - which is what specifies the items subject to seizure - appears in the first paragraph below the words "[y]ou are further authorized," not in the first [*4]paragraph of the warrant. As written in both the warrant application and the warrant itself, the directive authorizes officers to seize any evidence related to the offenses of criminal contempt and attempted coercion - neither of which apply to the instant defendant. Thus, nothing on the face of the warrant instructed officers executing the order "for what crime[s] the search [was] being undertaken," further militating against upholding the warrant as valid (United States v George, 975 F2d 72, 76 [2d Cir 1992]).

Nevertheless, it is evident that both documents intended to include a directive that authorized law enforcement agents to seize any threats or harassing messages the defendant transmitted to the complainant. By characterizing the items subject to seizure as evidence of the offenses listed in the first paragraph of the warrant, the People embrace an impermissibly broad interpretation of the particularity requirement. "Mere reference to 'evidence' of a violation of a broad criminal statute or general criminal activity provides no readily ascertainable guidelines . . . as to what items to seize" (id.). Moreover, the warrant application only revealed a relation between the things subject to seizure - communications - to the designated offense of aggravated harassment in the second degree. Therefore, if accepted as true, the People's claim that the warrant authorized the search for and seizure of communications that were only related to another offense for which the defendant is charged, the warrant would be constitutionally infirm for lack of particularity (see Galpin, supra).

In the alternative, the People request that any sections of the search warrant deemed invalid be severed from the valid provisions of the warrant. According to the prosecution, the search only produced evidence it was intended to uncover - namely, communications between the defendant and the complainant - and therefore should not be subject to suppression. Almost all of the data that the officers recovered from the defendant's Samsung was seized pursuant to constitutionally impermissible clauses in the warrant. At best, there was probable cause and sufficient particularity to authorize a search for data mapping out the defendant's location for the period commencing when he met the complainant on February 11, 2018 through his arrest on February 12, 2018.

Accordingly, the defendant's motion to controvert the warrant is hereby granted. With the exception of evidence mapping the defendant's physical location during the period of February 11, 2018 through his arrest on February 12, 2018, any physical evidence obtained pursuant to the search warrant is suppressed.

This decision shall constitute the order of the court.

Dated: October 31, 2018

MATTHEW J. D'EMIC, J.S.C. Footnotes

Footnote 1:It is not clear from the warrant application that the warrant authorized law enforcement agents to search for evidence of crimes that were not contained in the indictment. Both of the indictment counts for aggravated harassment in the second degree (PL §§ 240.30 [1] [a], [b]) specifically pertain to the November 6, 2017 phone call. The indictment does not charge any course of conduct crimes and there are no harassment charges for any other date.