The defendant's motion pursuant to CPL § 710.20 (1), dated April 27, 2004 (sic), to controvert a search warrant for a cellular telephone and suppress evidence contained in that telephone, allegedly connecting the defendant to a robbery and homicide, upon consideration of the People's response, dated May 23, 2005, is denied.

The defendant claims the information obtained during the examination of the cellular telephone should be suppressed because: (1) the affidavit in support of the search warrant "does not mention how any cell phone, much less the cellular phone named in the warrant, figured into the planning of the robbery"; (2) neither the affidavit nor the Court's questioning of the detective who applied for the warrant identifies the cellular telephone to be searched as the same telephone that was allegedly used in connection with the robbery; (3) there was no showing as to the reliability of the informant who claimed she used the telephone to call the victim prior to the crime in order to gain admittance to the victim's apartment; (4) there was insufficient information provided to the issuing Court for the Court to conclude that the cellular telephone sought to be searched was actually taken from the defendant at the hospital.

The People argue in response that: (1) the informant's reliability as an accomplice is satisfied through her personal observations as a "statement against penal interest" and (2) the warrant describes the phone in specific detail. Most of the defendant's arguments are not addressed by the People in their response, particularly the defendant's argument that there was insufficient information for the issuing Court to conclude that the telephone described in the search warrant was the one allegedly used in the crime.

THE FACTS

On March 15, 2004, in Part AR3, Detective Michael Braithwaite of the New York City Police Department's 67th Precinct came before Hon. James Gibbons sitting in Criminal Court with an application for a search warrant for a Sprint Spectrum Cellular Phone bearing the telephone number 718-812-4865. See, CPL § 690.35. In addition to the written application, Judge Gibbons questioned Detective Braithwaite under oath. The application was in part based on information provided by Felicia Anderson, a 14-year-old girl, who at the time of the [*2]application was in custody at the 67th Precinct. The informant had been under arrest for her own involvement in the death of the victim, Mark McGregor.

THE AFFIDAVIT

The Detective's affidavit in support of the warrant stated that he was assigned to investigate the death of Mark McGregor which occurred following a shooting at approximately 12:30 A.M. on March 15, 2004 in a specified apartment in Brooklyn. The affidavit sought permission to search the contents of a cellular telephone "recovered from Craig Phipps at Brookdale Hospital on March 15, 2004 by Brookdale Hospital personnel and given to Detective Habert of the New York City Police Department, ... ."

The cellular telephone was particularly described as to make, model number, FCC Identification Number, and telephone number.

The affidavit stated that the detective had spoken with Felisha Anderson, a 14-year-old girl who claimed to have been present at the shooting with Craig Phipps and two other males. The four of them had decided to rob the deceased of drugs and cash. Her role was to gain entry into the apartment while her three male companions were armed with firearms. Upon their entry a "physical altercation occurred whereby Mr. McGregor pulled out a firearm and began shooting," and Craig Phipps and another of the males fired back. Ms. Anderson stated she saw Mr. McGregor injured.

The detective was at the apartment at approximately 12:45 A.M. on March 15, 2004 and observed ballistic evidence and blood on the floor. Mr. McGregor was taken to Kings County Hospital where he was pronounced dead at 3:15 A.M.

The detective spoke to fellow Detective Michael Habert who stated that Craig Phipps "entered Brookdale Hospital on March 15, 2004 with multiple gunshot wounds. His cellular phone was taken by hospital employees and given to Detective Habert."

The affidavit was sworn to before Judge Gibbons on March 15, 2004 at 11:10 P.M.

As noted above, the affidavit made no mention of a cellular telephone being used in the crime.

THE EXAMINATION

Pursuant to CPL § 690.40 (1), Judge Gibbons questioned Detective Braithwaite under oath and recorded the examination on the record (hereinafter refererred to as "Tr."). This examination provided further details to justify the search of the cellular telephone.

The detective testified that Ms. Anderson was under arrest for her involvement in the crime. She had told the detective that she had used "the phone" to call Mr. McGregor "just prior to knocking on his front door" to insure he was home and would answer the door when she arrived. (Tr. 4).

The detective stated he was seeking the warrant to obtain corroborative evidence of this telephone call. (Tr. 5). The detective also stated that Ms. Anderson told him that she believed the other two males "worked with" Craig Phipps, one of whom she knew as "Orrette Davis" and the other she described as "a dark skin male black." (Tr. 5). Based on this relationship, the detective believed it "very likely ... phone numbers for these two other people and perhaps records of calls back and forth between them and Phipps would be found in Phipps' phone." (Tr. 5-6). [*3]

The detective also testified that Detective Habert told him the phone was given to him at the emergency room area of the hospital by hospital staff who had taken it "from the stored personal effects of the person marked Phipps (sic) who came to be treated for the gunshot wounds." (Tr. 6). Detective Habert further informed him that he obtained personal identification belonging to Mr. Phipps from the personal effects given to him by hospital staff. (Tr. 8).

Detective Habert physically observed Mr. Phipps in the hospital, obtained a photograph of him, and placed it in an array. (Tr. 7). The Court was originally informed that Detective Habert had shown the photo array to Ms. Anderson. (Tr.7). Detective Braithwaite later corrected himself and informed the Court that, in fact, he was the one who had shown the photo array to Ms. Anderson. She positively identified Craig Phipps (Tr. 9). Phipps, according to Detective Habert, had walked into the hospital emergency room shortly after 12:30 A.M., "very soon" after the shooting. (Tr. 9).

Judge Gibbons made specific findings justifying the issuance of the search warrant (Tr. 10-11), and signed it.

THE LAW

According to CPL § 690.10 (4), personal property is subject to seizure pursuant to a search warrant if there is reasonable cause to believe that it, "Constitutes evidence or tends to demonstrate that an offense was committed . . ., or that a particular person participated in the commission of an offense ... ."

The first argument raised by the defense is that the affidavit "does not mention how any cell phone, much less the cellular phone named in the warrant, figured into the planning of the robbery." While defense counsel is correct that the affidavit does not mention the specifics regarding the phone's use in the crime, the relevance of the phone is clearly established in the examination conducted by Judge Gibbons and thereby incorporated into the application. CPL § 690.40 (1).

The defendant's second point is that neither the affidavit nor the Court's questioning of the detective who applied for the warrant identifies the cellular telephone to be searched as the same telephone that was allegedly used in connection with the robbery. This Court disagrees. There was sufficient information presented to Judge Gibbons to conclude that there was reasonable cause to believe the telephone recovered in the hospital both belonged to the defendant and contained records to show it was used in the crime.

Furthermore, as an additional basis to search the phone, there was also reasonable cause to believe that it contained a list of telephone numbers that could lead to identifying and locating one or both of the unapprehended perpetrators who were described as associates of the defendant. Therefore, the issuing Court properly inferred that information regarding the two unapprehended associates could be recovered from the phone possessed by the defendant. See, People v. Olivera 2 AD3d 122 (1st Dept. 2003)(description of murder charges in application created reasonable cause to believe that clothes worn by defendant and property of victim would be found in defendant's residence or gym bag).

Judge Gibbons was informed that Detective Habert recovered a cellular phone from hospital personnel that was included in the personal effects of the defendant upon the defendant's admission to the hospital. Further, Detective Habert observed the defendant in the hospital [*4]being treated for unexplained gunshot wounds and his photograph was positively identified by Ms. Anderson as being the same person she had been involved with and the person whose phone she had made the call with.

The above information collectively provided reasonable cause to believe that the phone recovered by Detective Habert contained evidence both of Phipps' involvement in the crime and the identities or telephone numbers of others who may have also been involved.

The defendant's third point is that there was no showing as to the reliability of Ms. Anderson, the informant who claimed she used the telephone to call the victim prior to the crime in order to gain admittance to the victim's apartment. In determining the sufficiency of an affidavit in support of a search warrant application, New York courts apply the Aguilar-Spinelli two-pronged test in evaluating hearsay information from an informant. See Aguilar v. Texas, 378 US 108 (1964) and Spinelli v. United States, 393 US 410 (1969). The Aguilar-Spinelli test is to assure "that probable cause determinations be based on information derived from a credible source with first-hand information . . ." People v. Griminger, 71 NY2d 635, 639 (1988). Under this test, the application for a search warrant must demonstrate (1) the veracity or reliability of the source of the information, and (2) the basis of the informant's knowledge. People v. Delarosa, 215 AD2d 496, 496 (2d Dept. 1995), lv denied 86 NY2d 841, quoting People v. Griminger, 71 NY2d at 639 and People v. Naranjo, 174 AD2d 546, 548, lv denied 78 NY2d 1013.

The first prong of Aguilar-Spinnelli, that is the reliability of an informant's information, can be satisfied when the information is given as a declaration against penal interest. See, People v. Rodriguez, 52 NY2d 483 (1981). One court concluded that when an informer's criminal history is recent and ongoing, it is unlikely that an individual in the informant's position would lightly mislead the police. People v. Calise, 256 AD2d 64 (1st Dept. 1998). The statement must be made knowingly to a law enforcement officer and with knowledge that it might be used against the informant directly. See, People v. Morusty, 195 AD2d 733 (3d Dept. 1993). An informant's admitted participation in a burglary with a co-defendant has been held sufficient. See, People v. Messina 209 AD2d 642 (2d Dept. 1994); People v. McCann, 202 AD2d 968 (4th Dept. 1994), affd, 85 NY2d 951 (1995).

In this case, the issuing Court had a myriad of circumstances before it to conclude the informant was reliable in her assertion of Phipps' involvement: (1) Ms. Anderson's statements to the detectives as to her role in the crime were a declaration against her penal interest and she was under arrest for that role which was further corroborated by (2) Detective Braithewaite's first-hand observation of the apartment showing evidence of the recent shooting there and (3) Detective Habert's observations that Phipps was hospitalized with unexplained multiple gunshot wounds close in time to the shooting. See also, People v. Ketcham, 93 NY2d 416 (1999) (information from fellow officer "engaged in common investigation" is presumed reliable.)

The second prong, related to the informant's basis of knowledge, is independently satisfied, because the source of the informant's information was her actual involvement in the crime itself and personal observations of Phipps. The informant's basis of knowledge included her participation in the planning, her making of the call with a phone supplied by the defendant and her actual presence during the crime itself, all clearly establishing her personal knowledge of the incident. See, People v. Rodriguez, 52 NY2d at 491(1981), People v. Tyrell, 248 AD2d 747 [*5](3d Dept. 1998).

The defendant's fourth point is that there was insufficient information provided to the issuing Court for the Court to conclude that the cellular telephone sought to be searched was actually taken from the defendant at the hospital. As noted above, Detective Habert told Detective Braithewaite that he personally observed the defendant in the hospital emergency room being treated, and that he recovered personnel effects from Brookdale Hospital staff identified as the defendant's. Although vague as to how Detective Habert knew the cell phone given to him came from the defendant, a common sense reading of the transcript indicates the phone was in some manner identified to him by hospital personnel who obtained it either personally from Phipps or from where his property was stored under his name. Although the identities of the hospital personnel who obtained the phone from the defendant were not made known to the issuing Court, there were sufficient facts to conclude that the phone was taken from the defendant based on the hospital's labeling of the property as belonging to Phipps combined with the statements of presumably reliable hospital employees relying on their apparently regular procedures to identify a patient's belongings. Therefore, the Court was justified in relying on Detective Habert's statements to Detective Braithwaite that the phone Habert gave to Braithwaite was the phone brought into the hospital by the defendant.

The Court of Appeals has said, "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." People v. Hanlon, 36 NY2d 549, 559 (1975). (See, e.g., Unites States v. Ventresca, 380 US 102; Brinegar v. United States, 338 US 160, 175).

Applying common sense to the present case, there was sufficient information for the issuing Court to find that the phone came from Phipps and there was probable cause to issue the warrant to search it.

Accordingly, the defendant's motion to controvert the search warrant is denied.

SO ORDERED

JOEL M. GOLDBERG

Judge