DECISION AND ORDER On April 30, 2024, defendant Todd Elliot moved to controvert five (5) search warrants to search the location of 1445 Geneva Loop, Apt 17 A Brooklyn, NY; One Gray Apple iPad; One gray Lenovo Computer Laptop; One Gray HP Computer Laptop; and One Purple Samsung Cell Phone. Thereby suppressing the evidence seized under that search and any other evidence obtained due to the recovered data. BACKGROUND Deanne Philippe (hereinafter “complainant”) was in a romantic relationship with the defendant for over two years. After their relationship ended, the complainant told the defendant he was no longer welcome in her home. Upon returning from a business trip to Florida on April 15, 2023, the complainant found signs of intrusion in her apartment; her Bluetooth speaker had been used, food had been cooked, and cigarettes had been smoked. The defendant attempted to reenter the complainant’s apartment through the door with a key that morning but was thwarted by a chain lock. Detective Spera reviewed surveillance footage showing the defendant entering the apartment on April 14, 2023, at 7:42 pm and leaving at 9:35 pm with a bag of items. On May 10, 2023, the complainant saw the defendant speaking with NYPD officers, one of whom informed the defendant of plans to arrest the complainant for an alleged assault in April 2022. The complaining witness was subsequently notified that she was going to be arrested and returned to her apartment where she left her phone before being taken into custody. On May 11, 2023, the complainant returned to her apartment to find the door locks on the floor and a hole where the lock cylinder had been. She also discovered her SIM card missing from her phone, which she had left during her arrest. Detective Spera reviewed surveillance footage showing the defendant entering the building at 5:52 pm and exiting at 6:06 pm. The complainant informed Detective Spera the defendant took control of her Samsung phone account with the SIM card in the defendant’s possession. While she was in custody, a work colleague received a text from her phone number confessing to assaulting the defendant. On May 17, 2023, an email from was sent to her workplace board and colleagues about her arrest, which the complainant did not send. On the same day, despite not having access to her Facebook account, posts about the arrest appeared on her page, including a video filmed from the same angle the complainant saw the defendant recording. On May 20. 2023, while complaining witness was at a work-related event. Defendant appeared in violation of complaining witnesses’ Order of Protection. The complaining witness proceeded to call the police but when they appeared, she was arrested on a complaint filed by defendant. While the complainant was being arraigned around 6:30 pm, single-use codes for her Microsoft accounts were sent to her, her Google account passwords were changed, and all her personal information was removed as backup security steps. On May 22, 2023, the complainant informed Detective Spera the defendant texted the complainant’s assistant principal to defame her character. On June 6, 2023, the defendant was arrested and Hon. Jennifer A. Tubridy issued a warrant authorizing the search of the defendant’s location. Furthermore, Detective Spera executed the warrant and recovered one gray Apple iPad, one gray Lenovo laptop, one gray HP laptop, and one purple Samsung cell phone. On June 7, 2023, the defendant was arraigned in Part APAR1 on docket CR-019968-23KN and charged with Burglary in the Second Degree, and other charges. On June 29, 2023, the Affidavit for the search warrant of the Subject Devices was drafted by the undersigned, with Detective Spera as affiant and naming Deanna Phillipe as the informant. Moreover, Hon. Michael Kitsis issued the warrant authorizing the search of the subject devices for information. The defendant was indicted and charged with two counts of Criminal Trespass in the Second Degree, Burglary in the Second Degree, Burglary in the Third Degree, Criminal Mischief in the Third Degree, Criminal Mischief in the Fourth Degree, Petit Larceny, six counts of Criminal Impersonation in the Second Degree, and Stalking in the Fourth Degree. On May 1, 2024, defense counsel served the People with his Motion to Controvert the search warrant in this case. ANALYSIS In New York, when issuing a search warrant based on hearsay, probable cause is satisfied when the two-pronged test of Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. U.S., 393 U.S. 410 (1969), is met. Under the Aguilar-Spinelli test, a search warrant must demonstrate the reliability of the informant and the basis of the informant’s knowledge. The court in Bigelow defines probable cause as “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 N.Y.2d 417, 423 (1985)). There is a presumption of reliability for informants when they are known citizens rather than confidential informants (People v. Hetrick, 80 N.Y.2d 344, 349 (1992)). Furthermore, an eyewitness account is sufficient to meet the second prong of establishing a basis of knowledge. Id. at 384. Moreover, when reviewing an issuing court’s probable cause determination, great deference will be accorded to the issuing court’s findings. (People v. Griminger, 71 N.Y.2d 635, 640). Review of Probable Cause of Subject Location The defendant contends the information establishing probable cause to search the subject location comes from the unsworn hearsay of a civilian informant. As mentioned above, the Aguilar-Spinelli test governs this issue. However, this is not a case where the information was supplied by a confidential informant, but rather by a complainant named in the search warrant. Since the informant is known, there is a presumption of their reliability under the ruling in Hetrick. (Hetrick, 80 N.Y.2d at 349) Regarding the second prong, the complainant used to be in a romantic relationship with the defendant, and when the relationship ended, the defendant began to stalk her. Moreover, the complainant saw him try to reenter the apartment after he had already broken in when she was on a business trip and saw him recording her arrest moments before she left her cell phone in her apartment. This eyewitness account is sufficient to meet the basis of knowledge element under the Hetrick ruling. Id. at 384. Although the complainant was not present in court, Detective Spera, the affiant, was informed by the complainant. According to the court in Parris, police officers are deemed reliable informants (People v. Parris, 83 N.Y.2d 342, 347-348). Detective Spera also reviewed surveillance footage of the defendant entering and exiting the complainant’s building while on her trip and in custody. Furthermore, the affidavit goes into detail about the detective’s belief of the defendant’s capacity as a “domestic violence offender” to hack into the complainant’s Microsoft. Facebook, Google, and Samsung accounts after taking the complainant’s SIM card. Therefore, this court sees no issue with the absence of the complainant during the issuing judge’s hearing. The defendant also argues the complainant’s statements are in retaliation because of the arrest based on assault claims by the defendant. However, this court is not persuaded by this argument. The issuing judge was fully briefed about the arrest and the police diligently corroborated the complainant’s statements through examining surveillance videos. Therefore, for the reasons stated above, this court gives deference to the issuing court’s finding of probable cause for the subject devices. Review of Probable Cause of Subject Devices For the reasons stated above, this court gives deference to the issuing court’s finding of probable cause for the subject devices. Review of Search Warrants Being Overbroad The last issue before the court is whether the warrants for the subject location and subject devices were overbroad. Defense argues the search warrants permit a general search that is not sufficiently particularized. Upon review of the warrant issued for the search of the subject location, this court finds the warrant was sufficiently particularized. The warrant dictates “any and all cellular phone, laptops, iPads, sim cards, and electronic devices within the subject location” (People’s Exhibit 3). This list of property is sufficiently particularized to the related underlying offenses against the defendant. The warrants for the subject devices must conform to the test laid out in English, which dictates that a warrant must identify (1) “a specific offense” for which there is probable cause to believe it exists; (2) “the place to be searched,” in this case, the designated electronic device; and (3) “the items to be seized…by their relation to the designated crime[s],” (People v. English, 52 Misc.3d 318, 322 ( Sup. Ct. Bronx County 2016)) (citing United States v. Galpin, 720 F. 3d 436, 445-446 (2d Cir. 2013). The listed subject devices are related to the defendant’s alleged acts of criminal impersonation and stalking. The warrant also lists the particular make and color of the subject devices. The court in Graziano has held “there is no way for law enforcement or the courts to know in advance how a criminal may label or code his computer files and/or documents which contain evidence of criminal activities.” (United States v. Graziano, 558 F. Supp. 2d 304, 315 (E.D.N.Y. 2008)). In the present case, it will be necessary to inspect the files in the device broadly. Furthermore, the court in Nieves held a search warrant requires the place to be searched and the things to be seized to be particularity described in a “common sense” manner, rather than a “hypertechnical” one. (People v. Nieves, 36 N.Y.2d 396, 401). Technology is an ever-evolving tool, and the court in Fredrick recognized this growing pain by ruling any warrant for a search of personal devices “must be drafted with sufficient breadth” (People v. Fredrick, 52 Misc.3d 648, 651). In interpreting precedent this court finds the search warrants were not overbroad. For the reasons stated herein, the court DENIES defendant’s motion to controvert the five (5) search warrants. This constitutes the Decision and Order of the Court. Dated: July 24, 2024
