DECISION AND ORDER Defendant moves pursuant to Criminal Procedure Law Section 710.20(1), Article 1 Section 12 of the New York State Constitution, and the Fourth Amendment of the United States Constitution to controvert the search warrant and suppress the evidence seized. On July 19, 2022, a hearing to controvert the search warrant was held. The People relied on the testimony of Police Officer Joseph Jacobson, digital video recorder footage, and photographs of items recovered from execution of the search warrant. The defendant introduced the testimony of Alexander Vargas, a first-floor resident of 303 Milford Street. The Court finds the testimony of Police Officer Joseph Jacobson and Alexander Vargas to be credible. For the reasons discussed hereafter, defendant’s motion to controvert the search warrant and suppression of the evidence seized is granted. STATEMENT OF FACTS1 On May 12, 2020, at 8:48 p.m., Officer Jacobson received a shot spotter notification and reported to 304 Milford Street, Brooklyn, New York. Upon arrival at the location, Officer Jacobson and other law enforcement officials canvassed the area. Officer Jacobson observed five (5) shell casings on the front porch of 303 Milford Street. Lieutenant Hinds knocked on the front door of 303 Milford Street. Alexandra Vargas, a second-floor resident, answered the door. Lieutenant Hinds informed her that law enforcement needed to search the premises for victims, hostages, or assailants. Ms. Vargas denied hearing any gunshots and informed Lieutenant Hinds that a search warrant would be needed to enter the residence. Law enforcement, including Officer Jacobson, entered the residence to search for victims, hostages, or assailants. Officer Jacobson testified that he entered the bedroom on the second floor during his search of the residence. He observed a video monitor in the bedroom that depicted live feed surveillance of the interior stairwell and the exterior of the residence. Another officer rewound the footage. Officer Jacobson watched the video playback and observed a male individual descend the stairwell of the residence with two (2) firearms in his back pockets. The individual then walked to the front porch and fired several shots. The video then depicted the male return to the front door of the residence, hand the firearms to a woman, and then leave the location on foot. Officer Jacobson testified that at some point during the canvassing and search of the residence that night, eyewitness Jamel Grant spoke with Sergeant Calderone. Mr. Grant informed Sergeant Calderone that a male individual had fired shots at him from the porch where the shell casing had been discovered. Sergeant Calderone relayed his discussion with Mr. Grant to Officer Jacobson. Law enforcement ceased search of the residence, safeguarded the location, and went to obtain a search warrant. Search Warrant Application and Recovery On May 13, 2020, a search warrant application was submitted in New York State Supreme Court, Kings County for the second-floor apartment of 303 Milford Street. The warrant application, supported by a three-page affidavit, alleged that there was reasonable cause to believe that evidence of a crime took place on May 12, 2020, in Brooklyn, NY would be found inside the apartment. The affidavit stated further that law enforcement sought to recover handguns, ammunition, gun holsters, firearm paraphernalia, any and all digital video recorder(s) (DVR), camera system transformers, and any records indicating title of ownership. A hearing was held in which Officer Jacobson provided testimony and answered the Court’s questions regarding the incident. The Court found that probable cause existed and granted the search warrant. During the execution of the search warrant, Officer Jacobson recovered two (2) loaded handguns and multiple rounds of ammunition from the second-floor bedroom, as well as the footage from the digital video recorder. CONCLUSIONS OF LAW I. Exigency Exception to a Warrantless Entry It is a well-established principle that the security of one’s privacy against arbitrary intrusion by law enforcement is at the core of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443 (1971). Warrants are required to search a person’s home unless the search falls within one of the “carefully delineated exceptions to the Fourth Amendment’s Warrant Clause.” People v. Molnar, 98 N.Y.2d 328, 331 (2002). One exception to the Fourth Amendment’s Warrant Clause is based on the existence of exigent circumstances. People v. Hallman, 237 A.D.2d 17 (1997). Exigency is narrow and there must be a “direct relationship between the area to be searched and the emergency.” People v. Mitchell, 39 N.Y.2d 173, 179 (1976). The Court of Appeals set forth three (3) elements necessary to establish this emergency doctrine: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) the search must not be primarily motivated by intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. In context of warrantless searches, the people bear the burden of demonstrating the existence of exigent circumstances that invoke the exception to the warrant requirement. People v. Jimenez, 22 N.Y.3d. 717, 719 (2014). Law enforcement may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. City & Cnty. Of San Francisco v. Sheehan, 575 U.S. 600, 612 (2015) Here, law enforcement did have probable cause to enter the defendant’s home without a warrant based on evidence known to them at the time. Officer Jacobson received a ShotSpotter report and went to 304 Milford Street where he observed five (5) shell casings on the front porch, of 303 Milford Street. The front porch is enclosed with two separate fences. The ShotSpotter alert coupled with observing five shell casings on the front porch gave law enforcement reasonable grounds to believe that an emergency was at hand with the need for immediate assistance. Ms. Vargas stated that she did not hear any shots and asked for a search warrant. Officer Jacobson heard Lieutenant Hinds inform Ms. Vargas that he needed to search the premises for victims, hostages, and assailants. The primary motive was not to make an arrest, but to ensure public safety. Lastly, the reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched is apparent given that the shell casings were recovered within the curtilage of 303 Milford Street. The court finds that given the circumstances law enforcement had exigency circumstances to invoke a lawful warrantless entry. II. Scope of Search During a Warrantless Entry Where exigent circumstances justify a warrantless entry into a person’s home, the scope and duration of the warrantless search must be limited by and reasonably related to the exigency of the situation. People v. Scott, 21 N.Y.S.3d 121, 125 (2015). The scope of the search is a “limited privilege afforded to law enforcement officials by emergency exception and does not give them carte blanche to rummage for evidence if they believe a crime has been committed.” People v. Mitchell, 39 N.Y.2d 173, 179 (1976). “The search must not be primarily motivated by intent to arrest and seize evidence.” People v. Rodriguez, 907 N.Y.S.2d 294, 297 (2010). During a lawful warrantless entry, law enforcement is permitted to seize or search evidence that is in plain view in compliance with narrow circumstances. The “plain view” exception “is premised on the rationale that what a person exposes to the public eye cannot be the subject of a legitimate expectation of privacy.” People v. Spinelli, 35 N.Y.2d 77, 80 (1974). Furthermore, if the sight of an object gives law enforcement probable cause to believe that the object is the instrumentality of a crime, they may seize or search the object without a warrant, if the following three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object’s incriminating nature is immediately apparent. Horton v. California, 496 US 128, 136-137 (1990). The plain view doctrine establishes an exception to the requirement of a warrant. This exception allows for the seizure of objects in plain view, it is not an exception for law enforcement to conduct a warrantless search. The Supreme Court extended the right of privacy to electronic devices in Riley v. California, holding that a search warrant is required to search data on a cellphone. Riley v. California, 573 U.S. 373 (2014). “Digital data stored on a cellphone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Id at 387. Here, the law enforcement officers went far beyond the permissible scope of search. Officer Jacobson testified that the reason for entering the residence was to search for victims, hostages, or assailants that might be connected to the alleged shooting. The search should not have extended to rewinding personal security footage found inside the defendant’s bedroom. The people’s reliance upon the digital video recorder being in plain view is misplaced. Indeed, the Digital Video Recorder system was in plain view, however footage of previously recorded events on the device was not in plain view. This court finds that no exigent circumstances existed in which a search of the digital video recorder system during a warrantless entry would be valid. III. Search Warrant Validity After Removal of Illegal Evidence The Fourth Amendment of the United States Constitution provides that “no warrants shall issue, but upon probable cause,…and particularly describing the place to be searched, and the…things to be seized.” (U.S. Const Amend IV). A search warrant application must have “facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” People v. Rodriguez, 758 N.Y.S.2d 172, 174 (2003). With search warrant applications, probable cause requires finding “information sufficient to support a reasonable belief that an offense has been committed or that evidence of a crime may found in a certain place.” People v. Bigelow, 66 N.Y.2d 417, 423 (1985). During a hearing “on a motion to suppress physical evidence, the People have the burden of going forward by presenting evidence of the legality of police conduct.” People v. Worrell, 71 N.Y.S.3d 839, 851 (2018). The defendant then has the burden to establish, “by a preponderance of credible evidence, that the challenged police conduct was illegal.” Id. Further, the defendant must prove that they had an expectation of privacy in the area that was searched. Id. “Any fair doubt arising from the testimony at the suppressal hearing as to whether the affidavits allegations were perjurious should be resolved in favor of the warrant since those allegations have already been examined by a judicial officer in issuing a warrant.” People v. Alfinito, 16 N.Y.2d 181, 186 (1965). When it is determined that the evidence presented during a search warrant application is illegal or knowingly false “the remedy is to delete the statement and review the sufficiency of the remaining evidence.” People v. Tambe, 527 N.Y.S.2d 372, 454 (1988). If the “affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided, and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Franks v. Delaware, 438 U.S. 154, 156 (1978). Here, the court finds that the evidence relating to the digital video recorder system is based on an illegal search conducted by law enforcement during their lawful warrantless entry. The People’s argument that, after striking the statements relating to viewing the Digital Video Recorder footage, that the affidavit is still sufficient to establish probable cause is not persuasive. After a search for victims, hostages, or assailants, there was no showing of evidence of gun possession inside of 303 Milford Street. Without the weight of the evidence observed on the digital video recorder footage, the remaining elements are, the ShotSpotter, the gun shell casings outside of the residence, and a conversation with the neighbor about an alleged argument over a vehicle blocking the driveway of 303 Milford Street. At no time during the search warrant application hearing or in the affidavit is it mentioned that someone witnessed the defendant possess, fire, or have a gun inside of 303 Milford Street. The defendant has met their burden of proving there was illegal activity conducted by law enforcement that was then relied upon for the search warrant application. The People’s assertion that the guns would of nevertheless been recovered under the doctrine of inevitable discovery is unpersuasive as it does not apply to the evidence in this matter. Conclusion Defendant’s application to controvert the search warrant and suppression of evidence obtained pursuant to such search warrant is GRANTED. This constitutes a decision and order of this court. Dated: September 7, 2022
