People v. Smith

80 Misc.3d 395

195 N.Y.S.3d 870

The PEOPLE of the State of New York

v.Naquan SMITH

71259-2022

Supreme Court, New York County, New York.

Decided on May 24, 2023

Alvin Bragg, District Attorney (Joseph Goldstein of counsel), for the People.

Legal Aid Society (James McQueeney of counsel), for Defendant.

April A. Newbauer, J.

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 A.D.3d 1079, 1081, 116 N.Y.S.3d 659 (2nd Dept. 2019). See also People v. Thompson, 178 A.D.3d 457, 116 N.Y.S.3d 2 (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 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050 (1992) ; Phin v. City of New York, et al., 157 A.D.3d 553, 70 N.Y.S.3d 1 (1st Dept. 2018) ; People v. Gramson , 50 A.D.3d 294, 854 N.Y.S.2d 707 (1st Dept.), lv. den. 11 N.Y.3d 832, 868 N.Y.S.2d 607, 897 N.E.2d 1091 (2008) ; People v. Ortiz , 234 A.D.2d 74, 75-76, 650 N.Y.S.2d 223 (1st Dept. 1996), lv. den. 89 N.Y.2d 941, 655 N.Y.S.2d 892, 678 N.E.2d 505 (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 A.D.3d 714, 24 N.Y.S.3d 194 (2nd Dept.), lv. den. 27 N.Y.3d 1003, 38 N.Y.S.3d 112, 59 N.E.3d 1224 (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 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631 (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 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (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 A.D.3d 1176, 23 N.Y.S.3d 468 (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...