DECISION AND ORDER The defendant moves this Court for an Order to controvert two search warrants issued in relation to the above-listed indictment. Defendant’s first motion pertains to a search warrant issued by the Honorable John Ingram, Justice of the Kings County Supreme Court, dated July 3, 2019, authorizing the search of a 2014 Nissan NV3 bearing New York Plate No. JGM6232, including locked containers found within1 (hereinafter: Vehicle Search Warrant). Defendant’s second motion pertains to a search warrant issued by Judge Edwin Novillo, Acting Justice of the Kings County Supreme Court, dated July 3, 2019, authorizing the search of a black Apple iPhone, vouchered under NYPD Invoice Number 3001129274 and any electronic storage media upon and within said cell phone2 (hereinafter: Cell Phone Search Warrant). The People oppose both motions to controvert the above-described search warrants. The defendant filed an affirmation in reply to the People’s joint opposition and, with leave of this Court, the People filed a sur-reply. The defendant’s motions are disposed of as follows: Findings of Fact The defendant is charged pursuant to Kings County Indictment 4009/2019 with the crimes of Murder in the Second Degree (P.L. §125.25[1]) and other related charges, stemming from the June 26, 2019, shooting death of Da Li (hereinafter: decedent). It is alleged that the defendant, using his wife’s 2014 Nissan NV3, bearing New York Plate No. JGM6232 (hereinafter: subject vehicle), picked up the decedent at J.F.K. Airport and drove the decedent to the 718 51st Street, in Kings County (hereinafter: subject location). The defendant and decedent then exited the subject vehicle and entered the subject location. Shortly thereafter, the defendant left the location in the subject vehicle. Later that same day, the defendant returned in the subject vehicle, surveillance shows the defendant looking at a cell phone, put on a surgical mask and enter the subject location. Thereafter, the defendant left the subject location, ran to a nearby subway station, purchased and swiped a MetroCard at that station. Thereafter, the defendant returned to the subject vehicle and drove from that location. Witnesses reportedly heard what they believed to be gun shots coming from the room where the decedent was staying. The decedent was found shot to death two days later, on June 28, 2019. On July 3, 2019, the defendant was apprehended at J.F.K. Airport as he was about to board a flight to California with his wife and child. At the time of arrest the police recovered a black Apple iPhone, later vouchered under NYPD Invoice Number 3001129274 (hereinafter: subject cell phone), as well as the MetroCard the defendant allegedly purchased and used after leaving the subject location. No description of the phone alleged to have been used prior to the homicide was provided in the application for the Cell Phone Search Warrant. On that same day, the police requested and received permission from the defendant’s wife to search her Nissan NV3 (the subject vehicle). Although the defense contends that said consent was not obtained in defendant’s wife’s native language and while in police custody, the People provide proof that the permission sought was in Chinese and in a non-coercive environment (See People’s Affirmation in Opposition, dated June 17, 2019, Exhibits 2 and 3). Subsequently, the police accompanied the defendant’s wife to her residence, where police were directed to the subject vehicle and given the key. Upon search of the vehicle, Police Officer Peter Chiofolo of the NYPD’s 72nd Precinct, felt the outline of a firearm in a plastic bag inside the subject vehicle. The bag was not opened, returned to the location in which it was found and the vehicle was secured while the police obtained the Vehicle Search Warrant. Upon issuance and execution of the Vehicle Search Warrant, police recovered a firearm and disposable masks from the subject vehicle. Later in the day, on July 3, 2019, the police obtained the Cell Phone Search Warrant, which was subsequently executed. No description of data or property recovered from execution of the Cell Phone Search Warrant was provided. The defendant was arraigned on Kings County Indictment 4009/2019 on August 2, 2019 and pled not guilty to the charges contained therein. July 3, 2019 Search Warrant for Cell Phone Defendant moves this Court for an Order to controvert the July 3, 2019, Search Warrant authorizing the search of a black Apple iPhone, which was vouchered by NYPD under Invoice Number 3001129274, and any electronic storage media upon and within said cell phone (see Cell Phone Search Warrant), arguing the warrant (1) lacked sufficient Probable Cause; (2) was overbroad and not sufficiently particularized based upon a listing of the types of digital files to be searched; and (3) the warrant is overbroad and not sufficiently particularized based on inadequate date and time limitations. The People oppose said motion. 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 [3rd Dept 2011], quoting People v. Church, 31 AD3d 892, 894 [3rd Dept 2006], lv denied 7 NY3d 866). See also: People v. Murray, 136 AD3d 714 (2d Dept 2016); People v. McCulloch, 226 AD2d 848, 849 (3rd Dept 1996); People v. Augustus, 163 AD3d 981 (2d Dept 2018). 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]). A defendant is entitled to challenge a search warrant on the grounds that there was no actual showing of probable cause (Franks v. Delaware, 438 US 154 [1978]; People v. Bigelow, supra). Moreover, in those reported New York cases where a court found probable cause to search the contents of a cell phone, the issuing court found some nexus between the crime and the target cell phone. People v. Sime, 61 Misc3d 896 (NY Co. 2018) (evidence in the warrant application that defendant used the target cell phone to make threats to the victim); People v. English, 52 Misc3d 318 (Bronx Co. 2016) (evidence that defendant used target cell phone to communicate with victim); People v. Phipps, 2005 NYLJ 2929 (Kings Co. 2016) (evidence that defendant was using target cell phone upon arrest shortly after crime) (emphasis added); People v. Frederick, 52 Misc3d 648 (Kings Co. 2016) (evidence that police observed defendant using target cell phone at time of arrest, shortly after commission of the crime) (emphasis added). Here, as stated above, it is alleged that video surveillance from June 26, 2019, shows the defendant merely looked at a cell phone, without even the claim that he used said cell phone for the purpose of communicating with another person. Subsequently, on July 3, 2019, approximately seven days later, the defendant is arrested in possession of a cell phone, which is the target of the Cell Phone Search Warrant. The search warrant application for the Cell Phone Search Warrant does not contain any description of the cell phone alleged to have been used by the defendant at the time of the charged crimes and is therefore devoid of factual allegations linking the cell phone in the defendant’s possession at the time of arrest to the cell phone the People allege the defendant used immediately prior to the homicide. As such, the People failed to establish a nexus, supported by probable cause, that the cell phone recovered was the cell phone used at the time they allege the defendant committed the charged crimes and therefore cannot satisfy the required element of probable cause to believe evidence of the crime will be found in the location to be searched. Given this Court’s ruling that the Cell Phone Search Warrant lacked probable cause to believe that evidence of the crimes charged would be found on the device seized, the defendant’s remaining contentions as to the Cell Phone Search Warrant are rendered academic and need not be addressed by this Court. Therefore, the defendant’s motion to controvert the July 3, 2019 Cell Phone Search Warrant is hereby GRANTED, and any property or information obtained as a result of the execution of said warrant is hereby suppressed pursuant to the Fruit of the Poisonous Tree Doctrine. See Wong Sun v. US, 371 US 471 (1963); Nardone v. US, 308 US 338 (1939); People v. Johnson, 66 NY2d 398 (1985); People v. Hendricks, 25 NY2d 129 (1969); People v. Nichols, 117 AD3d 881 (2d Dep’t 2014); People v. Isaacs, 101 AD3d 1152 (2d Dep’t 2012). July 3, 2019 Search Warrant for Nissan NV3 Defendant also moves this Court for an Order to controvert the July 3, 3019, Search Warrants authorizing the search of the subject vehicle, as described above, arguing a lack of valid consent to search the subject vehicle, underlying the Vehicle Search Warrant. The People oppose said motion. Upon review of the People’s application for search warrant presented to the Honorable John Ingram, J.S.C., on July 3, 2019, the People established, and that court found probable cause, upon which to grant the Order at issue here. It is well settled that search warrants must be based upon a showing of nothing less than 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 at 1315, quoting People v. Church, supra at 894, lv denied 7 NY3d 866). The order at issue was granted upon probable cause, based on the affidavits and stenographically recorded testimony of Police Officer Peter Chiofolo of the NYPD’s 72nd Precinct, on July 3, 2019. Once a search warrant has been executed, the “bona fides of the police will be presumed and the subsequent search upheld in a marginal or doubtful case” (People v. Hanlon, 26 NY2d 549, 558-589 [1975]). “A search warrant that has been approved by a reviewing magistrate is cloaked with a presumption of validity” (People v. Vanness, 106 AD3d 1265, 1266 [3rd Dept 2013], lv denied 22 NY3d 1044, quoting People v. Rogers, 94 AD3d 1246, 1247 [3rd Dept 2012], lv denied 19 NY3d 977) (see also, People v. Castillo, 80 NY2d 578, 585 [1992]). So long as proper guidelines and procedures, as enumerated by the courts are followed, deference must be given to the issuing magistrate. The owner of a vehicle has the authority to issue consent for the police to search said vehicle, as is the case here where the defendant’s wife is the registered owner of the subject vehicle and gave consent to the police to search the vehicle upon their request. See People v. Howell, 111 AD2d 768 (2d Dept 1985). Moreover, the co-owner of property has authority to consent to a search of that property, so long as the other owner is not present and does not object. See People v. Carter, 30 NY2d 279 (1972) (Wife of defendant gives valid consent to search property shared with husband/defendant, in defendant’s absence). In addition, the defendant contends that the consent given was not knowing or voluntary, based upon a language barrier and the alleged detention of the defendant’s wife. The defendant’s argument is supported by an affidavit purportedly submitted by the defendant’s wife. However, the statements contained within the defendant’s wife’s affidavit in support are directly refuted by the documentary evidence annexed to the People’s affirmation in opposition to the defendant’s motion, dated June 17, 2021. See People v. Gonzalez, 39 NY2d 122, 128 (1976) (consent to search is voluntary “when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice”). Finally, assuming arguendo, that the defendant’s wife did not give knowing and voluntary consent to search her vehicle, the defendant lacks standing to challenge any perceived Fourth Amendment violations suffered by her. See Criminal Procedure Law §710.20; People v. Ramirez-Portoreal, 88 NY2d 99 (1996); People v. Ponder, 54 NY2d 160 (1981); see generally US v. Ragusa, 586 F. Supp 1256 (EDNY 1984). Therefore, the defendant’s motion to controvert the July 3, 2019 Vehicle Search Warrant is hereby DENIED. This constitutes the Decision and Order of this Court. Dated: August 23, 2021
