DECISION AND ORDER Defendant moves to controvert warrants authorizing the search of 145 East 23rd Street, Apartment 8M, New York, New York, and 145 East 23rd Street, Apartment 8I, New York, New York (the “Target Premises”).1 Defendant further moves to controvert the warrants authorizing the search of five cellular phones (the “Target Devices”) recovered during the searches of the Target Premises. Defendant’s motion is DENIED in part and GRANTED in part. Specifically, the motion to controvert is DENIED in its entirety with respect to the Target Premises; with respect to the Target Devices, the motion is GRANTED to the extent that the Court suppresses any information recovered from the devices that predates July 20, 2019, and any other evidence — “fruits” — derived therefrom. Factual Background This case concerns drugs sales to an undercover police officer that took place in July and August of 2019. The first four sales are alleged to have occurred on July 18, 25, 31, and August 13. They only involved co-defendant Scott (who is now deceased) and some of those sales took place inside of apartment 8M, which was Scott’s apartment. A fifth sale took place on August 21, 2019; it is the only transaction in which Barnett is alleged to have participated. Although the sale itself occurred within apartment 8M, Barnett, who resided in apartment 8I of the same building, was alleged to have supplied the narcotics from there. Warrants to search the two Target Premises were authorized on August 22, 2019, and those warrants were excuted the next day. The Target Devices were recovered during those searches and, one week later, warrants were issued to search them for evidence relating to drug-related criminal activity. The warrants had no temporal restrictions. Search of the Target Premises Neither party has addressed the question whether the defendant has standing to contest the search warrants issued for both of the Target Premises, which are two separate apartments, 8M and 8I, in the same building. Although it appears that this defendant resided only in apartment 8I, and not in 8M, for the purposes of this decision, the Court will assume, without deciding, that the defendant does have standing. See, e.g., People v. Gomez, 58 Misc 3d 1223(A) (Crim. Ct. Bronx County February 26, 2018) (assuming, arguendo, that defendant had standing, and reviewing the validity of warrant). There is a presumption of validity to a duly authorized search warrant. People v. Castillo, 80 NY2d 578 [1992]; People v. Ortiz, 234 AD2d 74, 75-76 [1st Dept 1996]. In this case, this Judge Peterson initially reviewed the applicagtion for the warrants on August 22, 2019, and found that probable cause existed. Upon a second review, the Court finds that the warrants for both of the Target Premises were issued upon reasonable cause and with sufficient particularity. Criminal Procedure Law (hereafter “C.P.L.”) article 690, §690.35; People v. Tambe, 71 NY2d 492 [1988]. The deponent is a detective from the New York Police Department and is thus authorized to make such an application pursuant to C.P.L. §690.01(1). The application was based on information acquired via NYPD investigations, fellow officers, and the New York County District Attorney’s Office. The facts alleged in the application for the warrants provide a sufficient connection between the crimes charged and the Target Premises. Namely, an undercover officer affiliated with the deponent purchased crack cocaine and heroin from co-defendant Scott on several occasions, and at least two of those sales took place inside of apartment 8M. These transactions were corroborated by the deponent. During the final such transaction, co-defendant Scott made a telephone call and, soon thereafter, defendant Barnett arrived and gave narcotics to Scott, who then sold them to the undercover. The deponent personally observed video surveillance of that transaction, which corroborates the information conveyed by the undercover; it shows Barnett leaving apartment 8I with a bag, entering apartment 8M, and then leaving apartment 8M without the bag. The contents of that bag, recovered from the undercover officer, tested positive for cocaine. The Court finds that these facts establish probable cause to believe that evidence related to the crimes charged would be found within both Target Premises. The Court further finds that the warrants for the Target Premises were not overbroad and the no-knock provisions were valid. The motion to controvert the search warrants of the Target Premises is denied in its entirety. Search of the Target Devices Again, for the purposes of this decision, the Court will assume, without deciding, that the defendant has standing to contest the search of all of Target Devices, since neither party has raised the issue of standing. Gomez, 58 Misc 3d at 1223(A). The deponent of the warrant application for the Target Devices is the same as for the Target Premises. As noted above, there is a presumption of validity to a duly authorized search warrant. Judge Tsai initially reviewed the warrant application on August 30, 2019, and found that probable cause existed. Upon a second review, the Court finds that the warrants for the Target Devices were issued upon reasonable cause and with sufficient particularity. The transactions that gave rise to probable cause to search the Target Premises were all orchestrated using cellular telephones. During the execution of the search warrants on August 23, 2019, Target Devices 1 through 4 were recovered from under Barnett’s bed in apartment 8I. Target Device 5 was recovered from apartment 8M, on a table next to co-defendant Scott’s wallet. The Court finds that these facts, combined with the facts detailed above, establish probable cause to believe that evidence reflecting the ownership and or use of the Target Devices would be contained on or within those devices, as well as evidence relating to the crimes charged in the indictment. Defendant’s motion to suppress pursuant to C.P.L. §690.40(1) is denied. The defendant also argues that the warrants for the target devices are overbroad because they do not contain any temporal limitation, citing People v. Thompson, 178 AD3d 457 (1st Dept 2019). In Thompson, the defendant used his cellphone to send sexually explicit photos to a minor on a single date in September of 2016. The search warrant, which authorized the search of the defendant’s phone with no date limitation, was found to be overbroad absent “allegations of conduct relevant to the charged offenses” that predated the date of their commission. Id. at 458. The instant case, however, is distinguishable from Thompson because of the nature of the charges: narcotics sales and possession. Narcotics transactions, like those alleged here, require planning and communication between the buyer and seller, and between the seller and supplier. Such planning and communication can reasonably be expected take place over a period of time, and not just on a single day. Indeed, here, the indictment alleges multiple drug sales that took place over a nearly two-month period. Nevertheless, following Thompson, the Court agrees that the absence of any temporal resctriction at all renders the warrants for the Target Devices overbroad. Turning to the question of remedy, the Court grants the motion in part, and orders the suppression of any evidence from more than thirty days before the sole transaction that defendant Barnett is alleged to have participated in. Specifically, since Barnett is alleged to have participated in a sale on August 21, 2019, all evidence recovered from any Target Device from before July 20, 2019, is suppressed. See, e.g., United States v. Santiago-Rivera, 2017 WL 4551039 at *15 (M.D. Pa. October 12, 2017) (cellphone warrant with no time restriction was overbroad but not fatally deficient; remedy was to restrict use of information recovered from phone to approximately one month before the known commencement of the criminal activity); United States v. Chambers, 2016 WL 11448314 (E.D. Wis. Sept. 14, 2016) (warrant authorizing search of cell phone for information commencing approximately one month from the commencement of the criminal activity was not overbroad). Only evidence recovered from the Target Devices from July 20, 2019, to the date of the devices’ seizure is accordingly admissible. This order suppressing evidence from before July 20, 2019, also covers the “fruits” of this material — that is, any additional evidence obtained by the “exploitation” of the suppressed evidence. Wong Sun v. United States, 371 U.S. 471, 477-78 (1963). This opinion constitutes the Decision and Order of the Court. Date: December 2, 2020
