Defendant has moved to controvert four search warrants: the first warrant was issued on August 3, 2016 and authorized the search of defendant’s apartment and cell phone; the second warrant was issued on August 9, 2017 and authorized a new search of the same cell phone; the third warrant was issued on February 14, 2018 and authorized yet another re-examination of the same cell phone; and the fourth warrant was issued on September 27, 2018 and authorized the search for cell site data of the phone number associated with the same cell phone. All of the warrants originate from the investigation into the beating death of defendant’s three year old son, Caleb Rivera, who, on August 3, 2016, was taken to the hospital via ambulance from defendant’s apartment and subsequently succumbed to his injuries two days later. Although detectives questioned defendant at the 23rd Precinct on August 3, 2016 while Caleb Rivera was being treated at the hospital, she was neither arrested nor charged with any crime on that day. As of the date of this decision, rendered over five years later, no one has been charged with any crimes relating to the death of Caleb Rivera. While at the precinct on August 3, 2016, defendant’s cell phone was vouchered by a police detective. It is this phone that is the subject of each of the challenged warrants. While the People allege that defendant voluntarily provided the phone to law enforcement, defendant challenges the seizure of her cell phone. A Mapp hearing has been separately ordered with respect to the procurement of that phone. Sometime after defendant spoke with detectives on August 3, 2016, a search warrant was obtained to search both defendant’s apartment and her cell phone (the first challenged warrant). During the search of the apartment, a shotgun was recovered. Defendant’s then boyfriend, Justin Ortiz, pled guilty in 2017 to possessing that weapon and was sentenced to seven years imprisonment. In 2021, defendant was indicted and now stands charged with jointly possessing this same weapon with a man named Jomar Valle. The defendant’s motion to controvert the August 3, 2016 warrant, which authorized the search of defendant’s apartment and cell phone, is denied. The warrant was previously reviewed by the issuing judge and 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). A review of the warrant application authorizing the search of the target apartment establishes probable cause to believe that evidence relating to the assault of defendant’s child, including household items containing blood, vomit or other biological evidence, items capable of administering first aid, and evidence of ownership or use of the premises may be found inside the defendant’s residence. The supporting affidavit additionally includes reference to defendant’s conflicting explanations of how her son sustained his serious injuries. The first was provided to medical staff at the hospital when Caleb Rivera was taken to the emergency room, and was, according to the attending physician, inconsistent with the serious nature of the child’s injuries. The second explanation, made subsequently to a detective, was that defendant had left her healthy son home in the care of her boyfriend, Justin Ortiz, and returned sometime later to find him unresponsive on the floor of the apartment. The sworn allegations accordingly established that evidence relating to the assault of the child earlier that day was reasonably likely to be found in the target premises. The authorization to search defendant’s cell phone, which had been recovered from defendant at the 23rd Precinct, was justified by defendant’s conflicting statements about how the injuries were sustained, coupled with statements defendant made to a Detective that she had left her son in the care of her boyfriend until she received a telephone call to return to the apartment. Moreover, the substantive data sought from the search of the cell phone (other than evidence establishing ownership or use of the device) was not overbroad, but rather was narrowly limited to data related only to the date of the assault (the same date of the warrant application). Accordingly, defendant’s motion to suppress the returns from the August 3, 2016 search warrant authorizing the search of her cell phone is denied. This Court notes that because the phone was password protected, the People were unable to gain access to the data sought by this warrant. Over one year later, on August 9, 2017, the People obtained a second search warrant which authorized the search of the same cell phone, this time using Cellebrite, a private sector forensic company that specializes in mobile device forensics, to aid in accessing and retrieving the electronic data (hereinafter the “2017 Cellebrite warrant”). In addition to incorporating the prior search warrant by reference, the 2017 Cellebrite warrant application included only a few additional factual allegations, the most significant of which was that defendant’s son died from his injuries on August 5, 2016 (two days after the issuance of the first warrant). Unlike the prior warrant, the 2017 Cellebrite warrant application sought a much broader range of data, including “(I) Any and all data, information, or images evidencing Internet usage history, including social media usage and any and all attempts to research for how to administer medical care, perform CPR, or treat injuries to a child.” and “(m) Any and all records that may show the activities of Caleb Rivera, Justin Ortiz, Alexandra Gonzalez, and/or an individual names ‘Jay Real’ aka Jomar Valle during the time period from on or about January 1, 2016 to August 3, 2016, including but not limited to diaries, calendars, photographs, and videos.” (see August 9, 2017 warrant affidavit, 2.(I) and (m), p. 3, attached as Exhibit 2 to defendant’s motion). As noted above, had the 2017 Cellebrite warrant mirrored the subject matter and date limitations contained in the 2016 warrant, a second attempt to search defendant’s cell phone would have been justified by defendant’s conflicting statements about how her son’s injuries were incurred, coupled with the call she received that precipitated her return to the apartment to find her son unconscious. However, the much more expansive search authorized by the 2017 Cellebrite warrant was unconstitutionally overbroad. As the 2017 Cellebrite warrant contained no additional factual allegations indicating that the assault on Caleb Rivera had been ongoing (e.g. that a physical examination of the child had revealed prior injuries), or any other factual support that there was reasonable cause to believe that evidence of the August 3, 2016 crimes would be found in data ranging over seven months prior to that day, the time frame and unfettered “locations” for the search failed to satisfy the particularity requirement under the Fourth Amendment (see People v. Thompson, 178 AD3d 457 [1st Dept. 2019]). In People v. Thompson, despite the allegations of the use of the target cell phone to text indecent proposals to a 13 year old complainant, the First Department found a search warrant overbroad because it authorized police to search defendant’s internet usage for over an eight month period and to examine essentially all other data on defendant’s phone without time limitation. While the Court in Thompson recognized that child sex abuse cases often entail repeated and habitual conduct and noted that the nature of the defendant’s relationship with the complainant (a family friend) suggested a relationship that predated the date of the charged crimes, the warrant application failed to satisfy the particularity requirement under the Fourth Amendment because it alleged only two crimes occurring on the same day, and was devoid of any specific allegations that the phone contained evidence of the specified offenses that preceded that date. Id. Likewise, in this case, the crimes against Caleb Rivera were alleged to have occurred on the date that he was brought to the hospital (August 3, 2016), and the second search warrant application contained no allegations that any crimes occurred prior to that date, or that defendant’s phone was reasonably likely to contain evidence relating to the crimes against Caleb Rivera that predated the date of the assault. Nevertheless, the 2017 Cellebrite warrant authorized police to search defendant’s internet usage without any time limitation, as well as authorized the search for unlimited data relating to four individuals (Caleb Rivera, defendant, Justin Ortiz and “Jay real” aka Jomar Valle) for over seven months preceding Caleb Rivera’s death. Notably, while “Jay Real” aka Jomar Valle was a name that was included in a number of the search parameters of the 2017 Cellebrite warrant (and is the person charged as defendant’s co-defendant in the instant 2021 indictment), neither the 2016 warrant nor the 2017 Cellebrite warrant included any facts about who “Jay Real” aka Jomar Valle was, or how he was involved in the death of Caleb Rivera. Finding that the 2017 Cellebrite warrant was unconstitutionally overbroad, the motion to controvert that warrant is granted. This order extends to all “fruits” of the suppressed material — that is, any evidence obtained by the “exploitation” of the suppressed evidence. Wong Sun v. United States, 371 U.S. 471, 477-478 (1963). The motion to controvert the third challenged warrant, issued on February 14, 2018, authorizing the re-examination of the same cell phone (identified as Target Device 1) as well as another phone (identified as Target Device 2), purported to be the cell phone of Jomar Valle, is likewise granted to the extent it relates to data recovered from Target Device 1 (as defendant has no standing to challenge the search of Target Device 2). Unlike the two previous warrants, the February 14, 2018 warrant sought evidence relating to crimes involving the possession and sale of a firearm (crimes that are unrelated to the homicide of Caleb Rivera, other than that the subject firearm was recovered during the premises search conducted pursuant to the first August 3, 2016 search warrant). The February 14, 2018 warrant expanded the parameters of information sought from defendant’s phone. In support of the application for this warrant, the People relied upon data recovered from the 2017 Cellebrite warrant (the returns of which this Court has suppressed). Notably, although the 2017 Cellebrite warrant sought only evidence of crimes relating to the homicide of Caleb Rivera (and did not contain any allegations of the use of any firearm to commit those crimes), the allegations contained in the February 14, 2018 warrant affidavit now included evidence obtained from the 2017 Cellebrite warrant extraction report that included “(I) The phrase ‘Smith and Wesson 12 Gauge Pump’ under Searched Items and Web History; (ii) Two photographs of an unidentified shotgun in the Saved Images; One Photograph contained a watermark with the website ‘Armslist.com’ in the lower left hand corner of the photograph; and (iii) Two videos contained in two separate text messages sent from Target Device 1 to Target Device 2 each depicting two male individuals, now identified as Justin Ortiz and Jomar Valle, each handling one shot gun while inside of a location that I know to be 2215 1st Avenue, Apartment 2D, New York, NY.” (See February 14, 2018 warrant affidavit, 9.k, p. 5, attached as Exhibit 3 to defendant’s motion). That this evidence was extracted from the 2017 Cellebrite warrant, which only purported to seek evidence relating to the homicide of Caleb Rivera, demonstrates the overbreadth of that 2017 Cellebrite warrant, as the extraction demonstrably includes evidence unrelated to crimes for which it was sought. The February 14, 2018 warrant application’s reliance upon evidence from the 2017 Cellebrite warrant mandates that the motion to controvert the February 14, 2018 warrant as to Target device 1 be granted as a fruit of the prior overbroad warrant. Moreover, the February 14, 2018 warrant affidavit is itself overbroad, as it contains no date range limitation for any data sought, and authorized, without time limitation, an examination of essentially all data on defendant’s phone (see People v. Thompson, supra). Finally, the motion to controvert the search warrant issued on September, 27, 2018, which authorized the search for cell site data of the phone number associated with the defendant’s cell phone, is likewise granted. As with the February 14, 2018 warrant, this warrant is both a fruit of the overbroad 2017 Cellebrite warrant and is itself overbroad. The September 27, 2018 warrant application relied upon the identical information from the 2017 Cellebrite warrant extraction report to justify the cell site search. (see September, 27, 2018 warrant affidavit, 10. k, p. 7, attached as Exhibit 4 to defendant’s motion). Moreover, the cell site warrant sought data for the time period from June 1, 2016 through August 4, 2016. The apparent justification for beginning the date range on June 1, 2016 was that defendant informed law enforcement that she and Caleb Rivera had moved in with Justin Ortiz on or around that date. However, this affidavit included no facts to support that the cell site data ranging back to June 1, 2016 was reasonably likely to contain evidence relating to the crimes committed against Caleb Rivera or any evidence relating to the firearm recovered pursuant to the August 3, 2016 premises warrant which, the affidavit indicates, Justin Ortiz pled guilty in 2017 to possessing on August 4, 2016 (see September, 27, 2018 warrant affidavit, 10.f.(i), p. 6, attached as Exhibit 4 to defendant’s motion). Accordingly, the motion to controvert four search warrants is denied in part and granted in part. This constitutes the Decision and Order of the Court. Dated: March 7, 2022
