The defendant Nathaniel Terry has moved to controvert two search warrants issued in this case, a premises warrant in which an iPone was recovered, and a warrant permitting a search of the contents of the phone. The motions raise the issue of the necessity of a sufficient showing in the premises warrant to support a seizure of a cell phone. The warrant applications Terry is charged with attempted murder in the second degree (PL §§110/125.25(1)) and related charges in connection with an incident at 60 Pitt Street in Manhattan. According to affidavits filed in support of the warrant, on November 5, 2021, police units were called to 60 Pitt Street in response to reports that an unknown man (“John Doe”) was on fire in the building’s third-floor stairwell. When the police arrived at 60 Pitt Street, the John Doe was no longer on fire, but was severely injured and transported to the hospital for treatment. Thirteen days later, John Doe died of his injuries. The supporting affidavit further states that on the night of the incident, police were able to retrieve video surveillance footage from the stairwell that depicted the entire incident. Detective Marcelino Alvarez testified he viewed the video footage. The video shows that at approximately 4:43 p.m., John Doe was sleeping on the third-floor landing of the building stairwell as he was approached by a man wearing a tie-dyed sweatshirt and tan hat. The police later identified the man in the sweatshirt and hat as the defendant Nathaniel Terry. Video surveillance then shows Terry taking a lighter out of his pocket and holding a flame to the pant legs of John Doe, causing Doe’s pant leg to ignite. Terry then walks down the stairs and exits the building. As Terry leaves the building, the fire begins to spread to John Doe’s entire body. A few minutes later, a third party comes into the stairwell and pours water over John Doe to extinguish the fire. The surveillance footage also shows Terry going back into the apartment building at approximately 4:49 p.m. and subsequently opening a mailbox that has “13B” written on it. The video also shows Terry using an iPhone on the 13th-floor staircase landing. Later that night, at approximately 9:00 p.m., police arrested Terry at 60 Pitt Street in Apartment 13B. Terry made several inculpatory statements during a Mirandized interview at the 7th precinct. He also stated that he was the 911 caller who alerted the police to the incident. On November 6, 2021, the court (M. Jackson, J.), signed search warrant N0742-2021, which authorized the search of Apartment 13B at 60 Pitt Street. The items to be recovered were: a) lighters; b) Apple Iphone cell phones; c) medications prescribed to Nathaniel Terry; d) marijuana and/or marijuana paraphernalia; and e) indicia of defendant’s ownership and residence. Law enforcement executed the search warrant and recovered an iPhone — believed to belong to the defendant — as well as other items from the Apartment 13B at 60 Pitt Street. On November 15, 2021, the court (T.Farber, J.), signed search warrant N0757-2021, which authorized the search of the contents of the iPhone that was recovered from the apartment. The warrant authorized the search for and seizure of: (a) identifying information concerning the phone, (b) evidence of the identity of the person who owned or used the phone between January 2013 and November 6, 2021, including call logs, contact lists, email addresses and communications around the time of the incident; audio, photos and videos of the defendant and relevant family or friends; and evidence of access to websites, apps or social media accounts associated with the defendant or relevant family or friends, (c) time and geolocation data from November 1, 2021 to November 6, 2021, (d) communications, files, and other data tending to connect persons to the crime from November 1, 2021 to November 6, 2021, including files and images of the defendant or the names of others; evidence relevant to the planning, commission or concealment of the crime; and evidence relevant to an intent or motive to commit the crime, (e) communications, files, and other data from January 2013 to November 6, 2021, connecting Terry to other interactions with homeless people and evidence of mental disease or defect, and (f) information establishing any related backup, or “cloud,” account. On February 22, 2022, Terry filed a motion to controvert search warrant N0757-2021, which authorized the search of the iPhone. On April 13, 2022, the People responded by arguing that the court should deny Terry’s motion in its entirety. On May 5, 2022 the defense filed a motion to controvert the premises warrant, arguing in particular that the warrant should not have authorized the seizure of Iphones. The court considers both motions in this decision, as follows. Discussion As a preliminary matter, in evaluating Terry’s motions, the warrants at issue were already reviewed by a judge of this court and are therefore entitled to a presumption of validity. People v. Castillo, 80 NY2d 578, 585 (1992); Phin v. City of New York, et al., 157 AD3d 553 (1st Dept 2018); People v. Gramson, 50 AD3d 294 (1st Dept 2008); People v. Ortiz, 234 AD2d 74, 75-76 (1st Dept 1996). This court, however, has also independently considered Terry’s arguments. Ample probable cause was present in the search warrant application to search the premises for the specified items, with the exception of the Apple Iphones. Unlike the other items, nothing in the warrant application suggested a connection between the crimes charged and the phone. Therefore, as to the phone, the search warrant fails to meet the standard articulated by the First Department in People v. Thompson, 178 AD3d 457 (1st Dept 2019). The only use of the phone alleged was a call to’911′.1 A valid premises search warrant cannot be used as a vehicle to seize a phone in the hope that later information will give rise to justification for a second warrant to unlock the phone. Just as the warrant did not seek the seizure of computers or recording devices in the premises, requesting seizure of a cell phone because it happens to be in an apartment would constitute an overreach. Most cell phones are in fact minicomputers that happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. Each functional area of the phone represents an aspect of a person’s life. Governmental searches of cell phones “must be done with special care and satisfy a more narrow and demanding standard than [traditional] physical searches.” Commonwealth v. Henley, 488 Mass. 95, 171 N.E.3d 1085, 1111 (2021). Because the issuing court’s core determination of probable cause was not irrational, this court may cure the overbreadth by limiting the admissibility of relevant evidence. People v. Penn, 164 AD3d 1142 (1st Dept. 2018); People v. Allen, 101 AD3d 1491 (3rd Dept. 2012), lv. den. 21 NY3d 1013 (2013); People v. Rhee, 54 M3d 1217(A)(Crim Ct, NY Co 2017), quoting People v. English, 52 M3d 318, 325 (S Ct, NY Co 2016). Accordingly, Terry’s motions are granted in part, as enumerated above, and otherwise denied. In light of this decision, the motion to controvert the search of the cell phone is moot. This shall constitute the decision and order of the court. Dated: August 8, 2022
