People v Clarke

[*1] People v Clarke 2021 NY Slip Op 51210(U) Decided on December 10, 2021 Supreme Court, Queens County Mullen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2021
Supreme Court, Queens County

The People of the State of New York

against

Chandrica Clarke, Defendant.



Index No. 1309/2020



For the People: Melinda Katz by Michael Bello

For the defendant: The Legal Aid Society by Tarini Arogyaswamy
Cassandra M. Mullen, J.

Defendant Chandrica Clarke moves, in a motion dated September 15, 2021, for an order controverting the search warrant, which authorized a search of two cell phones recovered from the vehicle where defendant and co-defendant James Hargrove were found by police, and suppressing all evidence obtained as a result of unlawful searches and seizures. In their omnibus motion dated November 1, 2021, the People oppose defendant's motion to controvert the warrant.

The Court decides the motion as follows:

Both the federal and 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. Probable cause for the issuance of the warrant may be based upon hearsay as long as the application for the warrant demonstrates both the reliability of the informant and the basis of the informant's knowledge. People v. Griminger, 71 NY2d 635, 639 (1988).

To satisfy the particularity requirement, "the warrant's directive must be 'specific enough [*2]to leave no discretion to the executing officer.'" People v. Brown, 96 NY2d 80, 84 (2001) (citing People v. Darling, 95 NY2d 530, 537 [2000]). "This does not mean that hypertechnical accuracy and completeness of description must be attained but rather, from the standpoint of common sense, that the descriptions in the warrant and supporting affidavits be sufficiently definite" to allow the police to identify the people, places, or things to be searched. People v. Nieves, 36 NY2d 396, 401 (1975).

In this case, the search warrant authorized the police to search two cell phones, one of which belonged to defendant, as well as "any and all memory cards, SD cards, internal memory, electronic or other media storage contained therein" on the basis that there was reasonable cause to believe that the following property may be found:

"[s]tored electronic information, including but not limited to emails and text messages, telephone calls including but not limited [to] received, sent and draft messages, concerning the planning, execution and concealment of criminal acts, including but not limited to, Burglary in the First Degree; [s]tored electronic information, including but not limited to, any and all photos and videos, execution or concealment of criminal acts, including but not limited to Burglary in the First Degree; electronic information, including but not limited to the phone books and contact lists/information for the receivers and senders of test message, phone calls and emails; any and all stored electronic information concerning the device's offsite media and external storage and the means to access that information."

The Court agrees with defendant that the warrant is overbroad and fails to satisfy the particularity requirement of the state and federal constitutions as it authorizes a search of nearly all files and data on the defendant's cell phone and fails to specify any date restriction of the files and data to be searched. Courts have held that "where the property to be searched [involves digital files], 'the particularity requirement assumes even greater importance' since '[t]he potential for privacy violations occasioned by an unbridled exploratory search' of such files is 'enormous.'" People v. Melamed, 178 AD3d 1079, 1082 (2d Dept. 2019) (citing United States v. Galpin, 720 F.3d 436, 446-47 [2d Cir. 2013]).

In Melamed, the court held that a search warrant failed to conform to the particularity requirement where, "other than a date restriction covering a period of approximately five years, the warrant permitted the [Office of the Attorney General] to search and seize all computers, hard drives, and computer files stored on other devices, without any guidelines, parameters, or constraints on the types of items to be viewed and seized." Melamed, 178 AD3d at 1081. Similarly, in People v. Thompson, 178 AD3d 457, 458-459 (1st Dept. 2019), the court held that, where the defendant was charged with sending "indecent proposals" to a thirteen-year-old child via text message and calling her, all in a single day, a search warrant which authorized law enforcement to search the defendant's internet usage for a period of eight months and, "without a time limitation, examination of essentially all the other data on [the] defendant's phones" was not sufficiently particularized. Here, the search warrant issued allows for an essentially unrestrained search of defendant's cell phone without any date restriction whatsoever and, thus, fails to satisfy the particularity requirement of both the state and federal constitutions. Accordingly, defendant's motion to controvert the search warrant is granted.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the [*3]attorney for the defendant and to the District Attorney.

December 10, 2021

____________________________

CASSANDRA M. MULLEN, J.S.C.