Supreme Court, Kings County, April 30, 2021

Lawrence J. Fredella for defendant.

Eric Gonzalez, District Attorney (Joseph Rozovsky of counsel), for plaintiff.

Defendant Jordan Perez is charged with manslaughter in the second degree and other crimes based on an allegation that on October 6, 2018, on the Gowanus Expressway in Brooklyn, he drove into an active construction site, while intoxicated, and struck a car parked at the site, thereby killing a road worker.

On arrival to the scene, the police observed two extensively damaged vehicles, the individual who later passed away and defendant, who was then standing by his vehicle. Noting his admission that he had been driving, the police took him to Lutheran Hospital, where his blood alcohol content measured twice the legal limit. A cell phone was recovered from defendant when he was arrested and searched upon leaving the hospital. Later, at the 78th Precinct, defendant's blood alcohol content registered .12%. Defendant's damaged vehicle was removed from the scene and vouchered and secured at a police precinct.

On November 23, 2018, Police Officer Aubrie Van Weele appeared before a justice of this court seeking and obtaining two search warrants, one for the vehicle and the other for the phone. This decision considers whether the search warrants were properly issued.{**72 Misc 3d at 312}

The search warrant for the vehicle was supported by an affidavit of Officer Van Weele, who attested, among other things, to the following:

"6. Your Affiant is informed by The Defendant's own statements in sum and substance that . . . prior to arriving at the Location, The Defendant was working as a manager at a bar and it is his job to test the drinks at the bar. The Defendant further stated that the Defendant was driving The Vehicle at The Location and that the Defendant did not see the cones on the highway and that there were no lights and that he drives through that area every night and did not know there was a construction site. The Defendant further stated in sum and substance that The Vehicle had an issue with the braking system . . .

"11. Based on my training and experience and my conversations with other law enforcement officials and investigators, The Vehicle may have a device referred to as a Crash Data Recorder (CDR), which may be found [in] The Vehicle's interior. When accessed, the CDR may, among other things, provide some or all of the following [*2]information: throttle position, the driver's speed just before the collision, whether or not the braking system was activated and whether the driver wore a seatbelt . . .

"14. Based on the above, I have reason to believe that the CDR as well as the mechanical hardware of the vehicle, including but not limited to the engine, accelerator, brakes, steering system may contain evidence that would demonstrate that an offense was committed or that a particular person committed the offense described above."

The warrant, consistent with the affidavit, authorized a "mechanical inspection" of the vehicle, including its crash data recorder, as well as photographs, video and photo images from such inspection.

[1] Officer Van Weele's observations of the results of the collision and the blood alcohol test, as well as defendant's statements that he had been driving and that his vehicle's braking system might have been faulty, gave the issuing court ample reason to believe that relevant evidence would be found in a mechanical inspection of the vehicle. Accordingly, the search warrant as to the vehicle properly issued.{**72 Misc 3d at 313}

This conclusion is reinforced by the fact that the People could have relied on Vehicle and Traffic Law § 603, which permits a warrantless inspection of the mechanics of a vehicle involved in an accident that results in serious physical injury or death (see People v Quackenbush, 88 NY2d 534 [1996]; see generally Barry Kamins, New York Search and Seizure § 5.05 [10] [2020 ed]).^[FN*]

[2] With respect to the search warrant pertaining to defendant's cell phone, however, the court must reach a different conclusion. The warrant application fails to provide probable cause that evidence of defendant's involvement in the fatal crash would be found in the broad search of defendant's cell phone that it authorized.

Officer Van Weele's application states as follows:

"17. [T]here is reason to believe that the Cellphone and electronic data stored within, which was recovered from the Defendant, will contain forensic evidence that is material and relevant to the above investigation. The forensic evidence will corroborate . . . information related to the possession and consumption of alcohol, and the source of intoxication of the Defendant.

"18. . . . The forensic evidence will corroborate The Defendant's identity, The Defendant's whereabouts immediately before and after the possession and consumption of alcohol before and during the vehicular collision, as well as whom The Defendant contacted immediately before, during, and after the above described incident. The forensic information will include text messages, phone numbers, voice messages, call records, call [*3]history, historic cell cite [sic] data, stored telephone numbers, outgoing and incoming calls, contact information, addresses, pages and any other electronic information, including, but not limited to photo images, video images, or data otherwise contained within the cellphone and internal memory."

{**72 Misc 3d at 314}The accompanying warrant authorized a search, without any time limitation:

"You are hereby authorized and directed to search and seize the above-listed property and their components as they will contain forensic evidence including: text messages, phone numbers, voice messages, call records, call history, stored telephone numbers, outgoing and incoming calls, contact information, addresses, pages and any other electronic information, photo images, video images or data otherwise contained within said cellphone and memory within."

To establish probable cause, a search warrant application must provide sufficient information to support a reasonable belief that evidence of the crime may be found in a certain place (People v Boothe, 188 AD3d 1242, 1243 [2d Dept 2020], citing People v Augustus, 163 AD3d 981, 982 [2d Dept 2018]).

Here, the search warrant application did not indicate that a search of defendant's cell phone "would yield evidence that a crime had occurred, was occurring or was about to occur" (People v Jemmott, 164 AD3d 953, 954 [3d Dept 2018], citing People v Mercado, 68 NY2d 874 [1986], cert denied 479 US 1095 [1987]). There is simply no connection between the phone and the alleged crime—for example, that defendant was observed using the phone during the commission of the crime (People v Watkins, 46 Misc 3d 207 [Sup Ct, Kings County 2014, Miller, J.]), or at the time of his arrest, shortly after the alleged commission of the crime, so that the phone would likely confirm his identity as the perpetrator (People v Frederick, 52 Misc 3d 648 [Sup Ct, Kings County 2016, D'Emic, J.]).

As the Second Department ruled in a case in which a cell phone was taken from an arrestee accused of a robbery, a conclusory statement that the cell phone contained information relevant to the robbery was bereft of any supporting factual allegations—hearsay or otherwise—and, therefore, plainly insufficient to establish probable cause. (Boothe, 188 AD3d at 1243.)

In other words, the mere fact that an accused possesses a cell phone at the time of his arrest does not mean that the cell phone is subject to search pursuant to a judicial warrant. The mere assumption that his cell phone may contain evidence—no matter how sensible that may be—does not sufficiently recognize the significant privacy interest embodied in a cell phone (see Carpenter v United States, 585 US —, —, 138 S Ct 2206,{**72 Misc 3d at 315} 2217 [2018]; Riley v California, 573 US 373 [2014]), and the attendant legal requirement that, before a judge may issue a warrant, the investigating officer must articulate facts demonstrating reason to believe that the phone contains evidence of the particular crime under investigation.

Remarkably, although the affidavit correctly suggests that a search of the phone would yield incriminatory evidence of "Defendant's whereabouts"—after all, defendant claimed to have been coming from a bar—the warrant contains no similar language. Instead, as noted, the warrant allows a temporally unlimited search of seemingly every component of the phone but makes no specific mention of cell site location information. It therefore cannot be said to direct the investigators to that aspect of the phone's data (see People v Covlin, 58 Misc 3d 996, 1004 [Sup Ct, NY County 2018] ["sufficiently specific affidavit will not itself cure an overbroad warrant" (citation omitted)]). Thus, to the extent that the affidavit provided probable cause to search [*4]defendant's cell site location data, the search warrant for defendant's phone was fatally overbroad and lacking in necessary particularity (see People v Brown, 96 NY2d 80 [2001]; People v Melamed, 178 AD3d 1079, 1083 [2d Dept 2019], citing United States v Rosa, 626 F3d 56 [2d Cir 2010]; see also People v Thompson, 178 AD3d 457 [1st Dept 2019]).

For these reasons, the motion to controvert is denied as to the search warrant for the vehicle but granted as to the search warrant for the phone.