People v Nurse

[*1] People v Nurse 2023 NY Slip Op 23167 Decided on May 5, 2023 Supreme Court, Kings County Sciarrino, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 5, 2023
Supreme Court, Kings County

The People of the State of New York

against

Dexter Nurse, Defendant.



Ind. No. 76538-22



For the People: ADA Michael O'Rourke on behalf of DA Eric GonzalezFor the Defendant: Laurel Dick, Esq. of the Legal Aid Society
Matthew A. Sciarrino, J.

The defendant, Dexter Nurse, is charged with Criminal Possession of a Weapon in the Third Degree and other related charges. The defendant moved for an order controverting several search warrants and suppressing the evidence seized pursuant to those warrants on April 6, 2023. The People opposed the defendant's motion on April 25, 2023.

Five search warrants are the subject of the defendant's motion. All of the search warrants were issued by the Hon. Danny Chun on January 4, 2023, and January 5, 2023. The January 4, 2023, search warrants authorized the search of a gray USB flash drive ("subject flash drive"), a silver ACER computer laptop ("subject computer 1"), a silver HP computer laptop ("subject computer 2"), and a pink Apple iPhone ("subject phone 5"). The January 5, 2023, search warrant authorized the search of a SIM card within a gold iPhone ("subject phone 6"). The court will address the search warrants by the date of their issuance.

MOTION TO CONTROVERT THE JANUARY 4, 2023,

SEARCH WARRANTS

Standing

As a preliminary matter, the Court must determine whether the defendant has standing to challenge the legality of the search (see People v Tejada, 81 NY2d 861, 864 [1993], citing People v Wesley, 73 NY2d 351, 355 [1989]). The defendant bears the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises searched (People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Ponder, 54 NY2d l60, 165 [1981]). Where a legitimate expectation of privacy in the area searched or in the items seized is not established, a defendant's motion to controvert the search warrant must be denied (Rawlings v Kentucky, 448 US 98 [1980]; People v Villanueva, 161 AD2d 552 [1st Dept 1990]). Here, in his [*2]motion to controvert, the defendant maintains that based on the contents and factual allegations in the search warrant application, he has established a reasonable expectation of privacy in the devices to be searched. Moreover, the People do not contend that the defendant lacks standing to bring this motion. Accordingly, the court finds that the defendant has standing to challenge this search.

Probable Cause

The court will first address the defendant's contention that the warrant lacks probable cause. "[T]o establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is 'sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place' " (People v Pinkney, 90 AD3d 1313, 1315 [3d Dept 2011], quoting People v Church, 31 AD3d 892, 894 [3d Dept 2006]). Probable cause "does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" (People v Bigelow, 66 NY2d 417, 423 [1985]). Probable cause may be supplied, in whole or in part, through hearsay information (see People v Landy, 59 NY2d 369, 375 [1983]).

In the instant case, search warrants KSC 4A-D were issued for a USB flash drive, two laptops, and a pink Apple iPhone. The requesting officer, Detective John Uske, swore under oath that the statements contained in his affidavit were true. The affidavit stated that Dexter Nurse had made several dozen purchases of firearm components through eBay from the period of January 2022 through October 2022. These purchases were made in the defendant's name, using his e-mail account, and ordering the firearm components to be delivered to his home.[FN1] Given that the items were purchased through an online-only source (i.e. eBay), doing so would require the use of an electronic device, such as a smart-phone, laptop, or other electronic device capable of browsing the internet and making purchases.

It was reasonable for the issuing magistrate to conclude that since firearm components were only purchased on the internet, these electronic devices, which were found in the defendant's bedroom, would contain information relating to the purchases of said firearm components. Thus, the court concludes that the search warrants were supported by probable cause. "[T]he challenged search warrant application, interpreted in a commonsense manner (citations omitted), provided sufficient information to support a reasonable belief that evidence of a crime would be found (citations omitted)" (People v Green, 10 AD3d 731, 731-32 [2d Dept 2004], appeal denied, 4 NY3d 744 [2004]).

Where a warrant application was previously reviewed by the issuing judge, it is entitled to a presumption of validity (People v Castillo, 80 NY2d 578, 585 [1992]; People v Ortiz, 234 AD2d 74, 75-76 [1st Dept 1996]). In addition, this court has reviewed the search warrant [*3]affidavit as well as the transcript of the search warrant application. The sworn allegations of the search warrant application were not perjurious on their face. Moreover, the transcript of the search warrant application reflects that the affiant-officer appeared before the issuing judge. The transcript further reflects that Detective Uske swore to the truth of the contents of the affidavit and then signed the affidavit in support of the search warrant application in the presence of the issuing judge. Upon review, this court agrees with the conclusion reached by the issuing judge that there was probable cause to issue the search warrants for the above-listed electronic devices.

Particularity and Overbroad

The test for determining the sufficiency of the description of the premises or object to be searched has been described by the Court of Appeals as a "common sense test" (People v Nieves, 36 NY2d 396 [1975]). It is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place or object intended to be searched (People v Sprague, 47 AD2d 510, 511 [3d Dept 1975], citing Steele v US No. 1, 267 US 498, 503 [1925]). The particularity of the description of the property seized "necessarily depends on the facts and circumstances of each case" (Nieves, 36 NY2d at 402). The description of the property seized must be as specific as reasonably possible under the circumstances (see People v Hulson, 178 AD2d 189, 190 [1st Dept 1991]; see also United States v Galpin, 720 F3d 436, 446 [2d Cir 2013]).

The warrants here are not vague. The affidavit clearly sets forth the alleged course of criminal conduct taken by the defendant, specifying the dates that the electronic purchases were made, and the location that the firearm components were sent to. The shipping location is the defendant's residence, which the defendant does not dispute. Given that the purchases were made through an online-only website, it is reasonable to assume that evidence of the electronic purchases would be found on the above-listed electronic devices which were found in the defendant's bedroom.

Furthermore, the search warrants for the forensic examination of the USB flash drive, two laptops, and one Apple iPhone were not overbroad as to timeframe. It did in fact contain a limitation that for "any data related to ownership and possession of" as well as a limitation for actual content. The affidavit did set forth that the purchases for the firearm components were made between January and October 2022. Thus, these were not warrants without time limitation (cf. People v Thompson, 178 AD3d 457 [1st Dept 2019] [finding warrant that contained no time restriction for crime that allegedly occurred on one day to be overbroad]). Accordingly, this court finds that the warrants were not overbroad or lacked particularity.

MOTION TO CONTROVERT THE JANUARY 5, 2023, SEARCH WARRANT

Standing

As a preliminary matter, the Court must determine whether the defendant has standing to challenge the legality of the search (see People v Tejada, supra). The defendant bears the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises [*4]searched (People v Ramirez-Portoreal, supra; People v Ponder supra). Where a legitimate expectation of privacy in the area searched or in the items seized is not established, a defendant's motion to controvert the search warrant must be denied (Rawlings v Kentucky, supra; People v Villanueva, supra). Here, in his motion to controvert, the defendant maintains that based on the contents and factual allegations in the search warrant application, he has established a reasonable expectation of privacy in the device to be searched. Moreover, the People do not contend that the defendant lacks standing to bring this motion. Accordingly, the court finds that the defendant has standing to challenge this search.

Probable Cause

"[T]o establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is 'sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place' " (People v Pinkney, supra). Probable cause "does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place" (People v Bigelow, supra). Probable cause may be supplied, in whole or in part, through hearsay information (see People v Landy, supra).

In the instant case, search warrant KSC 14 was issued for a SIM card within a gold iPhone. The requesting officer, Detective Uske, swore under oath that the statements contained in his affidavit were true. The affidavit stated, in addition to rendition provided above, that during a protective sweep of the defendant's residence, the police accessed the basement where they observed in plain view a press machine that is known to make firearm ammunition. Upon obtaining a search warrant for the basement, next to the press machine was gold iPhone. The defendant, nor any of the other occupants, claimed ownership of this phone. During the course of the investigation, Detective Uske learned that the defendant utilized two phone numbers.

The issuing magistrate was first presented with a search warrant to search the contents and data stored on the phone. The issuing magistrate denied that application as lacking probable cause that the phone belonged to Dexter Nurse. This new application limited the scope of the search to only the SIM card for the purpose of determining the user/owner of the phone. It was reasonable for the issuing magistrate to conclude that Dexter Nurse was utilizing more than one phone, as the affiant-Detective learned of two phone numbers associated with the defendant. Thus, the court concludes that the search warrant was supported by probable cause. "[T]he challenged search warrant application, interpreted in a commonsense manner (citations omitted), provided sufficient information to support a reasonable belief that evidence of a crime would be found (citations omitted)" (People v Green, supra).

Where a warrant application was previously reviewed by the issuing judge, it is entitled to a presumption of validity (People v Castillo, supra; People v Ortiz, supra). In addition, this court has reviewed the search warrant affidavit as well as the transcript of the search warrant application. The sworn allegations of the search warrant application were not perjurious on their face. Moreover, the transcript of the search warrant application reflects that the affiant-officer appeared before the issuing judge. The transcript further reflects that Detective Uske swore to the [*5]truth of the contents of the affidavit and then signed the affidavit in support of the search warrant application in the presence of the issuing judge. Upon review, this court agrees with the conclusion reached by the issuing judge that there was probable cause to issue the search warrants for the above-listed electronic devices.

THE WARRANTS WERE NOT EXECUTED WITHIN 10 DAYS (CPL § 690.30[1])

The defendant argues that the issuing magistrate's order in both the January 4 and January 5, 2023, search warrants, that "[t]he warrant shall be deemed executed at the date and time of intake by a digital forensic facility, including the Digital Evidence Lab at the Kings County District Attorney's Office" is invalid, based upon a plain language definition of the word "executed." The People claim that all the devices to be searched were brought to the Kings County Digital Evidence Lab on January 10, 2023, which is within the 10 days, and that the items were "worked on and data was extracted" between January 20 and January 24, 2023. The People also claim that the defendant has not suffered any prejudice as the search results were provided to the defendant within a reasonable amount of time before any scheduled trial date. The People rely on People v Deprospero, 91 AD3d 39 (4th Dept 2012), to support their contention that the 4th Amendment does not provide for a specific time limit in conducting forensic examinations of digital objects so long as the warrant was executed within a reasonable amount of time. The People's reliance on Deprospero is misplaced.

In Deprospero, the defendant was arrested for possessing child pornography. Pursuant to a search warrant of his home, a computer was seized. A limited preview of the defendant's computer revealed a single photograph of child pornography. The defendant ultimately pled guilty to Possessing a Sexual Performance by a Child. After sentencing, the defendant's attorney requested that the defendant's property seized pursuant to the warrant be returned to him. To ensure that no contraband was returned to the defendant, the police conducted a full search of the defendant's computer, finding hundreds of child pornographic photos and videos. This search took place approximately eight months after the computer was seized. The defendant was subsequently indicted on new charges based on the additional images found on the defendant's computer. The defendant moved to suppress the contents of the search. The trial court denied suppression, finding the initial search warrant was supported by probable cause and that there was nothing improper about a delayed analysis or inspection of the computer since it was lawfully seized. The defendant ultimately pled guilty to Predatory Sexual Assault Against a Child.

The Fourth Department found that the search of the defendant's computer did not violate his 4th Amendment rights, finding that the search warrant lawfully permitted the police to seize his computer for the purpose of conducting further analysis and examination. The Court found that the 4th Amendment does not provide "for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant" (id. at 46). The Court of Appeals affirmed (20 NY3d 527 [2013]).

The facts of Deprospero are different from the instant matter. Deprospero dealt with the issue of whether the property seized in May 2009 and subsequently searched in January 2010 violated the 4th Amendment. When the computer was ultimately searched, it was done as a [*6]condition of releasing the property to the defendant to ensure no further contraband existed. In the instant matter, the People ultimately secured two separate search warrants: the first was for the defendant's residence to seize certain property relating to the online purchases of firearm components as well as digital objects such as cellphones, computers, tablets, etc.; and the second was for the actual search, download, and extraction of certain content contained on those digital objects (i.e. the two laptops, USB flash drive, and Apple iPhone). Given that the People applied for and secured a search warrant to conduct a forensic examination of those items, CPL § 690.30(1) controls. It mandates that "[a] search warrant must be executed not more than ten days after the date of issuance and it must thereafter be returned to the court without unnecessary delay" (emphasis added).

The People admit in their response that although the items were brought to the lab on January 10, 2023, which is within the 10 days, the items were not evaluated and extracted until the earliest, January 20, 2023, which is more than 10 days from the date of issuance. Therefore, the search warrants issued on January 4 and January 5, 2023, were not executed within 10 days of their issuance.

In support of this court's finding, the court relies on People v Kiah, 156 AD3d 1054 (3d Dept 2017), lv denied 31 NY3d 984 (2018), as this court is unaware of any Second Department authority on this issue. In Kiah, the defendant was arrested for rape. At the time of his arrest, the police recovered a cellphone from the defendant's person. A search warrant was obtained authorizing the search for subscriber information, text messages, and other data. The examination of the defendant's phone pursuant to the warrant was completed 19 days after the warrant was issued. Therefore, the Court held that the fruits of the search must be suppressed as the warrant was not executed within 10 days of being issued.

Although this court is aware of People v Ruffin, 178 AD3d 455 (1st Dept 2019), which held that the search warrant's explicit language of "deemed executed at the date and time of issuance" was appropriate given the subject cellphone was already in police custody and not yet analyzed, this court does not find it persuasive and adheres to the statutory language contained in CPL § 690.30(1).

Accordingly, the defendant's motion to controvert the search warrant is GRANTED.

This order is stayed for 45 days for the People to determine whether to exercise their right to appeal.

This case is next on May 30, 2023, in Part 9.

This constitutes the decision and order of the court.

Dated: May 5, 2023

________/s_______________

Matthew A. Sciarrino, Jr.

Acting Justice, Supreme Court Footnotes

Footnote 1: Two separate search warrants were issued for the defendant's residence in which firearms, firearm components, ammunition, a press machine used to build firearm ammunition, the above-listed items which are the subject of the instant motion, and other items were recovered. This court issued a decision and order denying the defendant's motion to controvert the search warrants issued for the defendant's residence (see Decision and Order dated April 7, 2023 [Sciarrino, J.]).