This is a motion to controvert a search warrant presented to the court on December 9, 2022 and signed on December 16, 2022. The motion raises several novel questions of New York law including 1) whether a court should entertain a renewed ex parte application for a search warrant after an initial warrant has been found improper for lack of probable cause; and 2) if so, what factors should the court consider in evaluating the subsequent warrant. The First Warrant Application On December 3, 2021, a judge of the New York City Criminal Court issued a search warrant authorizing the search of an Apple Iphone seized from defendant Smith when he was arrested. According to the affidavit filed in support of the warrant, on November 27, 2021, Smith entered the complainant’s apartment at 1365 Fifth Avenue, Apartment 5H. At that time, Smith and the complainant were in a romantic relationship. The affidavit states that Smith became angry and started arguing with the complainant after she told Smith that she wanted to end their relationship. Smith displayed a firearm during the argument and threatened to harm the complainant if she left the apartment. While racking the firearm, Smith repeatedly blocked the exit to the apartment and would not let the complainant leave. On the following day, November 28, 2021, Smith allowed the complainant to briefly leave the apartment so she could pick up her five-year-old son. The complainant returned to the apartment with her son. The next day, Smith again attempted to prevent the complainant from leaving the apartment. At approximately 7:00 a.m. on November 29, 2021, the complainant was able to leave the apartment with her son, but Smith followed them out. Smith caught up to the complainant in the building stairwell and used both of his hands to apply pressure around the complainant’s neck and squeeze it. Smith then allowed the complainant to leave so that she could take her son to school. Upon exiting the apartment building, the complainant immediately went to the Police Service Area (“PSA”) 5 precinct to report her encounters with Smith. The affidavit further states that on November 29, 2021, at approximately 9:30 a.m., NYPD officers Jessie Bucholtz and Joshua Albanese of PSA 5 responded to 1365 Fifth Avenue after receiving a call about a man inside an apartment with a loaded firearm. Upon arriving at the apartment building, Officer Bucholtz stood outside to observe the exterior of the “H” apartment line. Officer Bucholtz saw a man approach the ground level of the “H” line begin searching in a grassy area next to the building. Officer Bucholtz stopped this individual, who identified himself as Timothy Reyes. Reyes informed the officer that his brother, Naquan Smith, lived in apartment 5H. A few minutes later, Officer Bucholtz himself began to search the grassy area, and found a firearm inside a white plastic bag. At about the same time, Officer Albanese arrested defendant Smith as he exited apartment 5H. Officer Albanese searched Smith, removing an Apple iPhone from his pocket. The officers vouchered the IPhone at the precinct, and the People sought the first search warrant four days later. Defendant Smith was indicted on the charges on or about May 5, 2022. The defense subsequently filed a motion to controvert the search warrant. In a decision dated July 20, 2022, the court found the warrant application failed to provide case-specific facts to establish reasonable cause to believe that Smith used the Iphone to communicate about the incident and that relevant evidence would be found on the iPhone. The affidavit contained no allegation that anyone observed Smith using his cell phone before, during or after the time of the incidents. Rather than providing case-specific facts, the supporting affidavit merely offered generalized conclusions that individuals who engage in domestic violence and illegally possess firearms use cell phones to communicate regarding past and future criminal actions. Thus, the search warrant application lacked the necessary support for a Fourth Amendment privacy intrusion. See People v. Melamed, 178 AD3d 1079, 1081 (2nd Dept. 2019). See also People v. Thompson, 178 AD3d 457 (1st Dept 2019). The court suppressed any such evidence derived from the phone extraction. The Second Warrant Application On December 3, 2022, this court was presented with a new search warrant application for the Iphone, supported by an affidavit from the same officer, who by then had achieved the rank of detective. The detective repeated the background information that was supplied in the first application, but supplemented it with additional details, including a description of text message exchanges between the complainant and Smith the day of the incident, and also between the defendant’s brother and Smith as the police were attempting to apprehend them. The People represented that no fruits of the first search warrant application were utilized in the People’s application for the second search warrant. In this application, this court found both probable cause and a requested search in keeping with the parameters outlined by the courts in Melamed and Thompson. After a delay occasioned by administrative issues, the new search warrant was signed on December 16, 2022. Applicable law In evaluating the defendant’s challenges, the court notes that if a warrant has already been reviewed, it is 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.), lv. den. 11 NY3d 832 (2008); People v. Ortiz, 234 AD2d 74, 75-76 (1st Dept. 1996), lv. den. 89 NY2d 941 (1997). The situation here is somewhat unusual in that the issuing court is also the reviewing court. Notwithstanding that this is a review of the court’s own order, the court has carefully considered defendant’s arguments in light of the applicable law. Defendant first argues that the warrant application suffers from the same infirmities as the initial search warrant, as it still fails to establish probable cause that the information sought would be would be found in authorized locations, or throughout the time periods outlined in the application. “To establish probable cause, a search warrant application must provide sufficient information ‘to support a reasonable belief that evidence of a crime may be found in a particular place.’” People v. Murray, 136 AD3d 714 (2nd Dept.), lv. den. 27 NY3d 1003 (2016)(citations omitted). Such applications, however, “should not be read hypertechnically and may be ‘accorded all reasonable inferences.’” Id.; see also People v. Hanlon, 36 NY2d 549, 559 (1975)(“search warrant applications should not be read in a hypertechnical manner as if they were entries in an essay contest. On the contrary, they must be considered in the clear light of everyday experience and accorded all reasonable inferences”). Contrary to defendant’s arguments, the second warrant application establishes not only probable cause to believe that defendant committed the crimes charged, but that the contents of his phone would contain evidence relevant to defendant’s actions in committing them. The places authorized to be searched were shown likely to contain communications and location data all relevant to prove the crimes under investigation. These records are likely to establish defendant’s motive, intent and association with the complainant, and his efforts with his brother to evade capture. The ultimate touchstone of the Fourth Amendment is reasonableness. Brigham City v. Stuart, 547 US 398 (2006). Measured against this standard, the court concludes that the People should not be barred from making a subsequent search warrant application provided they do so without using evidence obtained from the first search warrant and that they proceed without unnecessary delay. If the sole reason for the court’s suppression of evidence obtained from a first search warrant is the lack of facts in the supporting affidavit, the prosecution should be permitted to present additional facts in new application.1 Inadequate drafting should not dictate the ultimate outcome. However, the People must act with reasonable speed, within a time frame that permits closure to their investigation and to the discovery process, and allows the defense an adequate opportunity to prepare for trial. New York courts have not developed uniform principles governing evaluation of search warrants that post-date not the filing of the indictment, or as in this case, the filing of the certificates of compliance and readiness. The Third Department briefly addressed the issue of prosecution delay in seeking a cell phone search warrant in People v. Magee, 135 AD3d 1176 (3d Dept 2016), finding that a period of four months after the defendant’s arrest was not excessive. In that case, the defendant’s cell phone had been held as personal property, not arrest evidence, at a correctional facility. In addition, the court’s opinion does not indicate whether or not the prosecution turned over discovery or stated ready for trial prior to the search warrant application. Second Circuit precedent Under federal law, the prosecution must swiftly pursue any investigation conducted by search warrant. The Second Circuit employs a four factor test to discern whether the application is timely: (1) the length of time before seeking a search warrant; (2) the importance of the seized property to the defendant; (3) whether the defendant had a reduced property interest in the seized item; and (4) the strength of the prosecution’s justification for the delay. United States v. Smith, 967 F3d 198 (2d Cir. 2020). Federal courts have invalidated search warrant applications where the prosecution delayed for merely a period of days. See, id; Unites States v. Mitchell. 565 F3d 1347 (11th Cit. 2009)(21 days); Unites States v. Dass, 849 F2d 414 (9th Cir. 1988)(23 days). In United States v. Smith, 967 F3d 198, the prosecution was delayed a month in seeking a search warrant for the contents of the defendant’s computer tablet primarily due to a heavy police caseload. The court found that a month-long delay “well exceeds what is ordinarily reasonable.” Id. At 207. On this factor of the test, the Second Circuit seemingly departed from what was found to be reasonable by the Third Department in People v. Magee, 135 AD3d 1176. The court in Smith dismissed the excuse proffered for the delay — the generally heavy caseload and large geographic area covered by law enforcement — as insignificant compared to the privacy interests the Constitution seeks to protect. In Smith, the Second Circuit also noted that a personal tablet computer is typically used for communication and storing vast amounts of personal data, elevating the importance of the defendant’s property interest. At issue here is a cell phone, arguably even more valuable to the owner because of its greater inter functionality. This court concludes that although probable cause for the Iphone searches was made out in the December, 2022 application, the search then was not in accord with the Fourth Amendment. Under the four factor test the Second Circuit articulated, the People’s unreasonable delay in seeking this application outweighs other considerations. See United States v. Smith, 967 F3d 198. Compare, United States v. Corbett, 2021 US LEXIS 191323 (EDNY)(101 days); People v. Magee, 135 AD3d 1176 (3d Dept 2016). It is less the four (plus) months time frame per se, and more when its context in the litigation that drives the court’s determination. CPL §245.50(1) provides in relevant part: “…The certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence if material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery…” A supplemental certificate of compliance and readiness is permitted if the prosecution subsequently learns of additional material and information and expeditiously notifies the other party. CPL§245.60. The People’s search warrant application ran afoul of the legislative intent that the defense have access to all discoverable material as soon as possible. The People served and filed their certificate of readiness in this case on April 23, 2022. On July 20, 2022, the court issued its decision granting the defendant’s motion to controvert the first search warrant. On September 29, 2022, with no change in the parties’ respective positions, the court directed them to be ready for hearings and trial on November 10, 2022. The People offer no cognizable explanation for why they waited until after the original hearing and trial date was set to resurrect their search for the target items, or why there was any need to do so ex parte.2 It runs counter to the legislative intent to permit the People to declare their readiness, yet continue to obtain investigative material for their use at trial from the defendants without his knowledge. The court must assume that the People filed their certificate of readiness in good faith, and that no information derived from these searches would be necessary to try the defendant. Accord, United States v. Berroa, 2021 US Dist LEXIS 7947 (D Mass), citing United States v. Smith, 967 F3d 198. People v. Magee, 135 AD3d 1176, was decided before the current discovery statute was enacted. In 2019, the Legislature signaled its clear intention that discovery be both comprehensive in scope and expedited, both to move cases to conclusion and to allow defendants enough information concerning the case against them to prepare for trial. See People v. Jian Lin, 76 Misc 3d 825 (Sup Ct NY Co 2022). “Article 245 incorporates existing foundations into a new set of rules designed to modernize discovery and increase fairness, efficiency, and transparency in criminal prosecutions. (https://www.nysenate.gov/legislation/bills/2019/s1716).” People v. Godfred, 77 Misc 3d 1119 (Crim Ct Bx Co 2022). These principles dictate that search warrant applications should not follow the filing of certificates of compliance and readiness without a showing of good cause. Nor has the defendant relinquished his interest in the contents of the Iphone. The phone was vouchered as arrest evidence, not safekeeping evidence, making the return of the phone an issue for litigation. The defendant could not simply authorize someone to retrieve the property. The notion that a defendant in custody has a diminished interest in locked and stored personal information because his cell phone is vouchered is rejected. But see Unites States v. Corbett, 2021 WL 4480626 (EDNY). Defendant’s filing this motion demonstrates his attachment to the contents. For the reasons stated above, the defendant’s motion to controvert the search warrant is granted. Dated: May 24, 2023
