People v Wallack

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[*1] People v Wallack 2020 NY Slip Op 50907(U) Decided on August 12, 2020 Supreme Court, New York County Dwyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2020
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Cynthia Wallack, Defendant.



3850-2018



For the People:

Kathleen Coulson

Assistant District Attorney

New York County

One Hogan Place

New York, NY 10013

(212)335-4357

For Defendant:

Gary M. Kaufmann

377 Broadway, 8th Floor

New York NY 10013

347-855-9102
Mark Dwyer, J.

Defendant Cynthia Wallack is charged in New York County Indictment 3850/2018 with Burglary in the Second Degree and related offenses. The People allege that defendant, acting in violation of Criminal Court orders of protection dated November 22, 2017, and February 2, 2018, harassed her estranged husband. The People further allege that for a lengthy period in 2018 defendant harassed a second man, one who apparently had never met her and who will be referred to here as "AB".

During the investigation in this case the People obtained four warrants to search the records of electronic media accounts — one warrant for two Gmail accounts, and one warrant each for Instagram, Facebook, and LinkedIn accounts. Each warrant directed the account custodians to deliver the account data to the New York authorities. The New York authorities were in turn directed to search that data for evidence of defendant's alleged crimes. Evidence supporting the charges as to AB (but not evidence related to defendant's husband) is now the [*2]subject of a defense motion.[FN1]

Defendant moves to suppress that evidence based on assertions that probable cause was not shown in the warrant applications and that the evidence to be seized was not identified with adequate particularity. For the reasons that follow, defendant's motion is granted with respect to one warrant, and otherwise denied.

I

The application for the four warrants at issue was supported by the affidavit of Senior Investigator Michael O'Brien of the New York County District Attorney's Office. Investigator O'Brien swore to the following:

1. He examined the Family Court records for defendant and her husband. Those records showed that the two were married on July 30, 2017. A month later, the husband sought a divorce and an order of protection. He alleged that defendant had assaulted and menaced him, and had committed criminal mischief. A Family Court order of protection was issued, and defendant was arrested for violating it. On November 22, 2017, a second order of protection was issued, this time in Criminal Court, with an expiration date of May 21, 2018. This order directed that defendant not contact her husband, and specifically forbade contact via email. 2. After interviewing the husband, Investigator O'Brien viewed 12 emails sent to him between December 29, 2017, and February 1, 2018. The sender's Gmail address was cynthia.m.wallack@gmail.com3. A third order of protection was issued in Criminal Court on February 2, 2018, with an expiration date of August 2, 2018. This order also directed that defendant not contact her husband, and specifically forbade contact via email.4. The investigator viewed another email to the husband from the Gmail address just specified. The email was dated June 10, 2018.5. Investigator O'Brien interviewed AB on August 31, 2018, and examined law enforcement documents related to him. AB advised the investigator that, beginning in February of 2018, his Facebook account began to receive messages from a Facebook account for a Cynthia Wallack. AB deduced from the owner's Facebook profile that, like AB, she was a 2011 Dartmouth graduate. AB had never met this woman, but observed that they had Facebook "friends" in common.6. Over the next five months AB received thousands of Facebook messages from the Cynthia Wallack Facebook account. At first he did not reply. Ultimately, he sent three short messages urging his correspondent to seek counseling and to leave him alone.7. In that same period AB received messages on his Instagram account from Instagram user Cynthia Wallack. That person commented on the Instagram posts of AB's former girlfriend.8. AB also received messages on his LinkedIn account from LinkedIn user Cynthia [*3]Wallack.

According to Investigator O'Brien's affidavit, matters came to a head on August 6, 2018. AB had shared a 5th Avenue apartment with his brother. On August 6th the brother called to tell AB that he had just arrived home to find "Cynthia" on his couch, claiming to be a friend of AB. AB advised his brother to call the police. The police responded, arrested defendant, and issued her a DAT. Security video confirmed that defendant had been inside the lobby of the 5th Avenue building. She later passed through a door to a roof landing with access to the brother's apartment.

About a week after the arrest, AB received an invitation from a Gmail address inviting him to a party that the sender was having for her Dartmouth classmates. The address was christiemaywallace@gmail.com.



II

The judge who reviewed the People's application signed the four search warrants. Three of them contained directives to the service providers. Each provider was told to download essentially every bit of data the company possessed in the relevant account. Thus, the Google warrant ordered the company, as to the first email account (the "cynthia.m.wallack" account), to locate and send all email content and related information for messages created between September 28, 2017 "and the present." As to the second email account (the "christiemaywallace" account) the company was ordered to locate and send all email content and related information for messages created between August 6, 2018 "and the present."[FN2]

Google was further directed to submit all address book information; all subscriber and payment information; all transactional records such as IP logs and session times; all customer correspondence; and all preserved and backup records. The demands for address book and transactional records information also contained date limitations.

Each of these three warrants then contained instructions for the New York law enforcement officials who were to receive the data from the provider companies. Again using the Google warrant as the example, the warrant permitted a search of the Google data for:

1."communications, records, and images" relating to defendant's husband and AB, including emails to and from them or about them, emails to their places of business, and photographs related to them;

2. records as to who controlled the email accounts; and

3. records demonstrating defendant's intent to communicate with her husband or to harass AB.

For reasons not clear to this court, the fourth warrant was different. That was the Instagram warrant. This one did not authorize the same two-step search process — step one for a download of the account data and its delivery to New York County officials, and step two for a search by law enforcement officials for specific things. Instead, this warrant simply directed Instagram to transmit data described in seven paragraphs.

This court will not recite or even summarize all the words of those seven paragraphs. But a fair interpretation of what had to be submitted by Instagram was all account data created on or after February 1, 2018. For example, the third paragraph required the submission of all communications to or from the account, all images and related data, the identity of anyone who [*4]"liked" an image, and all comments on any image. There were no limits placed on the subject matter of the information, or on the people involved in communications.



III

The warrants raise legal issues that are not all simple to resolve. But the first issue posed by defendant is in fact simple. Defendant apparently agrees that Investigator O'Brien's affidavit made out probable cause to believe that defendant used the first Gmail account to commit crimes against her husband. Defendant claims, however, that the investigator's information did not create probable cause to believe that AB likewise was the victim of crimes and that searches should be conducted with respect to his complaints. The court disagrees.

Defendant cites the Aguilar-Spinelli [FN3] rule, and argues that the information in the warrant application concerning AB did not satisfy that rule's two-prong test for whether information establishes probable cause. See, e.g., People v. Griminger, 71 NY2d 635 (1988); People v. Johnson, 66 NY2d 398 (1985). Defendant is wrong, to a point sufficiently clear that lengthy discussion is unnecessary. The investigator recited a report from AB that a stranger named Cynthia Wallack was harassing him. AB's report consisted of detailed first-hand information and he was a reliable citizen informant. Thus, his report by itself may very likely have sufficed to show probable cause. See People v. Hetrick, 80 NY2d 344, 348-49 (1992); People v. Cantre, 95 AD2d 522, 526 (2nd Dept 1983), aff'd on opinion below, 65 NY2d 90 (1985). And AB's information was corroborated by the evidence of defendant's trespass in, and her arrest in, the apartment of AB's brother, an apartment in which AB had previously lived.



IV

A

Defendant's remaining complaints are more complicated. Again, defendant does not attack the recovery of evidence of her alleged crimes against her husband. As to the search for evidence concerning AB, however, defendant asserts

1. that the warrants authorized searches of some categories of data even though there was no probable cause to believe that relevant evidence would be found in those particular types of data; and2. that in any event the warrants did not describe with adequate particularity what data within the area of the authorized searches could be seized.

What the New York courts describe as the Fourth Amendment's "particularity" doctrine controls here. A search warrant's directive must be "specific enough to leave no discretion to the executing officer" as to the scope of the search. People v. Brown, 96 NY2d 80, 84 (2001) (internal quotation marks omitted); People v. Darling, 95 NY2d 530, 537 (2000). The warrant language need not attain "hypertechnical accuracy and completeness of description." It is enough if, viewed with common sense, the language in the warrant is "sufficiently definite to enable the searcher to identify the persons, places or things" that may be searched or seized. People v. Nieves, 36 NY2d 396, 401 (1975). That particularity requirement limits the invasion of privacy that a search warrant permits. The warrant's language must reasonably restrict the area of a search to locations where relevant evidence is likely to be found. And the objects of the search in those locations must be restricted to items of evidence described with fair specificity. [*5]See, e.g., United States v. Richards, 659 F3d 527, 537-40 (6th Cir 2011); United States v. Upham, 168 F3d 532, 535 (1st Cir 1999). If the warrant fails to accomplish those ends, it does not satisfy the particularity rule. Evidence recovered in an otherwise authorized search may then have to be suppressed.[FN4]

That last sentence says that evidence "may" be suppressed, not that it will be suppressed. What the court has in mind is one more and highly pertinent applicable legal doctrine — "severability." One portion of a warrant's search authorization may not adequately limit the area to be searched or may not adequately specify the permitted objects of the search. But if an independent portion of that search authorization does pass muster, the fruits of a search authorized by the properly particular language will not be suppressed. That is, the offending language will be deemed severed from the warrant, and the evidence will be admissible. See People v. Brown, 96 NY2d 80 (2001); People v. Hansen, 38 NY2d 17 (1975); see also United States v. Galpin, 720 F3d 436 (2nd Cir 2013).



B

Ironically perhaps, defendant's particularity attack on the warrants is not entirely particular. But the court understands defendant to be arguing that the language of the Google, Facebook, LinkedIn and Instagram warrants directs the service providers to search and seize far too much. As noted above, the providers were told to download and provide to the New York authorities what appears to be every bit of data in the accounts. If the court considered that to be the search and seizure authorization, it would agree with defendant. So all-encompassing a search could never be thought consistent with the constitutional rule.

But that is not the search authorized in each warrant. Like other warrants involving electronically stored information, these warrants quite reasonably relied on an out-of-state service provider to make the account contents available for a search by New York officials. The warrant then permitted the officials to examine those contents, and defined the parameters of their search. The provider's initial act of forwarding the account data was not an examination of that data, but the provision of access to it — something akin to a landlord's opening of the locked door of a tenant's room at the beginning of a search by police officials. What the officials were permitted to examine and seize after entry is what is determinative of the particularity issue. See Matter of 381 Search Warrants Directed to Facebook, Inc., 29 NY3d 231, 243-46 (2017); and see United States v. Stabile, 633 F3d 219, 233-34 (3rd Cir 2011). Indeed, New York discovery rules envision that the People will disclose to the defense the entirety of the contents of an account from which evidence has been obtained. CPL Section 245.20 (1)(u)(ii). The Legislature plainly understands that the People will obtain precisely what the service providers were told to deliver here.

The propriety of the warrant's directives to the New York authorities for the actual data searches is best assessed one warrant at a time. And, given the severability doctrine, that assessment is best made with focus on the language permitting the seizure of the evidence which the People will seek to introduce at trial.

The court begins with the Google warrant. The People hope to introduce several emails from the "christiemaywallace" Gmail account in which the sender advises that she will invite AB to her Dartmouth party and asks for AB's address. The People suggest that recovery of those emails is authorized in two paragraphs of the Google warrant. One permits a search of the Gmail account for communications "relating to" AB, including emails "to and from" him. The other authorizes a search for emails that evince an intent to harass, alarm, or annoy AB. There was ample probable cause in the warrant application to believe that such evidence would be found in the emails in the account. And the objects to be seized, communications with AB or revealing criminal intent with respect to him, were described with specificity. There is no basis for defendant's particularity attack on the Google warrant.

As to the Facebook warrant, the People seek to introduce evidence of a "friend" request sent from defendant's account to AB, and Facebook communications directed from that account to AB. Search for and seizure of that evidence among the communications in the account was supported by probable cause and authorized by descriptive language identical to that in the Google warrant. The People also seek to introduce a fair number of photographs and other indicators of defendant's identity as the owner of the Facebook account. There was probable cause to think that such information would be found in the search of Facebook data, and that it would link defendant to the other inculpatory evidence in the account. And this aspect of the search was authorized by specific warrant language permitting the seizure of proof of who created or exercised dominion and control over the account.

As to the LinkedIn account, the warrant language is similar to that in the Google and Facebook warrants. But analysis is not necessary. The People will not offer at trial anything that was recovered from the LinkedIn account.



C

What remains is to address, briefly, the final warrant, the one for the contents of the Instagram account. The People would like to introduce pictures of defendant as well as other indicators of her ownership of the account. The People also offer texts, a few to or from AB and others indicating her interest in him.

As indicated above, and unfortunately for the People, the Instagram warrant is very different from the others. Unaccountably, this warrant directs only the first of the two steps in the search to be conducted. That is, the warrant tells the service provider to forward all data in the account to the New York authorities, and describes the data at length — and very broadly. But the authorities are then told only that on receipt of the information they can keep it. There is no particular area of data they are permitted to search, and no particular type of data in those areas that they are authorized to seize.

The failure to include limiting restrictions like those in the other warrants must have been inadvertent. And it is very possible that the New York officials who searched the Instagram data well understood, from the other warrants, what they were to look for, and limited their intrusion accordingly. But such limitations must be included in the warrant; an understanding of them cannot be presumed.

As a result, the information recovered from the Instagram account is inadmissible. The [*6]Instagram warrant violates the Fourth Amendment requirement that a search warrant be particular both as to the area to be searched, and the evidence to be seized.



ENTER:

_________________________

MARK DWYER

Justice of the Supreme Court

August 12, 2020 Footnotes

Footnote 1:The People have specified the evidence recovered from the accounts which they will offer in support of the AB charges: (1) evidence of the ownership of the Instagram account, along with certain Instagram messages; (2) evidence of the ownership of the Facebook account, along with a "friend" request and hundreds of Facebook messages; and (3) certain emails in one of the two Gmail accounts.

Footnote 2:"The present" was the warrant date of September 10, 2018.

Footnote 3:See Spinelli v. United States, 393 US 410 (1969); Aguilar v. Texas, 378 US 108 (1964); see also Illinois v. Gates, 462 US 213 (1983) (altering federal constitutional rule).

Footnote 4:A note as to terminology is in order. Some federal courts distinguish between an "overbroad" warrant, one which does not properly limit the areas to be searched, and a warrant lacking "particularity" in its description of what evidence may be sought in those areas. See, e.g., United States v. Ulbricht, 858 F3d 71, 102-03 (2nd Cir 2017). New York courts tend to label both failings, essentially interchangeably, as problems with "particularity" and "overbreadth." See People v. Thompson, 51 Misc 3d 693, 704 n. 10 (Sup Ct NY Co 2016); and see, e.g., People v. Nieves, supra. In this opinion the word "particularity" will be used with respect to both categories.



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