Supreme Court, Albany County, May 8, 2023

Francisco Calderon, Albany, for defendant.

P. David Soares, District Attorney (Bryanne Perlanski Brucato of counsel), for the People.

Defendant moves to suppress certain cell phone records and data that he claims the police seized in violation of his rights. In particular, he argues that the warrant issuing judge lacked probable cause to allow the police to search his phone and seize information found on it. In addition, he argues that the judge failed to comply with the requirements of CPL 690.20 (2).

The prosecution, at the suppression hearing, alleged the following:^[FN1] The victim and defendant had an intimate relationship that did not end well. The victim told defendant that she wanted to break up. Defendant did not like this; he went to the victim's home in Albany where he proceeded to choke and beat her. Upon ending his assault, defendant cautioned the victim that he would kill her if the police got involved. Nevertheless, the victim reported the incident to the police; she then went to a domestic violence shelter and ultimately moved from Albany to Cohoes—all to get away from the defendant.

About six weeks later, on November 13, while the victim was waiting for her mother, a car pulled up in front of the house. It was defendant. He repeatedly commanded the victim to get into the vehicle. After considering fleeing (and the consequences that might result to her for attempting to do so), the victim decided it best to get in the car and talk.

After stepping into the vehicle, she observed a handgun on defendant's lap. For the next [*2]six hours defendant held the victim prisoner. At one point, defendant drove to the Hudson River. There he forced the victim to strip naked and to walk to the end of a dock. He then tried to throw her into the river, but the victim pancaked her body to the ground; so, defendant pulled her by the hair and assaulted her, promising the victim that she was going to die. Ultimately, defendant allowed the victim to reclothe and then ushered her back to the car.

Defendant drove around for a few more hours. Finally, while parked at a Burger King restaurant, defendant presented the victim with an option to evade death—namely, to recant her story to the police. Gaining the victim's consent to the condition,{**79 Misc 3d at 813} defendant released her. The kidnapping escapade lasted almost six hours from about 2:00 a.m. to well after dawn.

The victim went to the police on the following day (Nov. 14) to report the whole affair. Albany Police Detective Haggarty was assigned to the case. As part of his investigation, the Detective wanted access to defendant's cell phone records. To obtain the records, he requested that the Albany City Court issue a search warrant. This request was granted.

The warrant permitted the police to seize defendant's cell phone records maintained by AT&T mobile from the dates November 6, 2022, to November 20, 2022. The data included virtually everything that a cell phone could store, capture, record and reflect from its use. Defendant wants to suppress information and evidence gathered from the search warrant. He makes several arguments, some better than others, in support of his motion to suppress.

Both the United States and the New York State Constitutions require search warrants to be issued only upon probable cause:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" (US Const Amend IV; NY Const, art I, § 12).

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 certain place" (People v Schaefer, 163 AD3d 1179, 1180 [3d Dept 2018] [citations and internal quotation marks omitted]). So, initially, it must be reasonable that the cell number in the search warrant belonged to defendant. Detective Haggarty's affidavit supplied such support. His affidavit recounts that the victim told him she had been together with defendant for a year. Of course, during that time, defendant had contacted her via cell phone. The victim, consequently, was able to deliver the Detective defendant's cell number.

[1] It seems obvious that the victim's statement established a reasonable basis to believe that the number was defendant's. Nevertheless, defendant protests. He says that the victim's{**79 Misc 3d at 814} statement is hearsay, and that her statement fails to satisfy the two-part Aguilar-Spinelli test.^[FN2]

The Aguilar-Spinelli test applies where the warrant issuing magistrate has no sworn statement emanating directly from a witness with personal knowledge (People v Hicks, 38 NY2d [*3]90, 93 [1975]). In such a situation, the test requires a showing that the person who provided the hearsay is reliable and has a basis of knowledge for the information that she imparted (People v Bahr, 35 AD3d 909, 910 [3d Dept 2006]).

Here, the burden imposed by Aguilar-Spinelli is easily met. Under the first part of the test (reliability), the hearsay statement comes from the victim who is a citizen and not a police informant. "[I]nformation provided by private citizen informants . . . is presumed to be reliable, thus satisfying the first part of the Aguilar-Spinelli test" (People v Cazeau, 192 AD3d 1388, 1389 [3d Dept 2021] [citations and internal quotation marks omitted]). With respect to the second part of the test (basis of knowledge), the victim had the ability to identify defendant's cell phone number. The two had dated for a year, and during that time they communicated with each other via his cell phone. No question, therefore, the Albany City Court properly concluded that the victim's statement provided probable cause.

[2] Next defendant argues that there is no reason to believe evidence of a crime could be found on his cell phone. The court will separate the analysis into two parts. First, it will deal with calls and texts that defendant made and received, pictures and/or videos that he took or recorded, applications (e.g., emails and social media) that he accessed or used, and web searches that he made or websites that he visited—in short, any information contained or stored on the phone. Defendant argues that the Detective's affidavit made no connection between the information on his cell phone and evidence about the kidnapping—this argument has force.

In his affidavit, the Detective says that in his experience and training suspects use their cell phones to record and communicate{**79 Misc 3d at 815} about events associated with criminal activity. This certainly makes sense—at least generally. However, it is but speculation if and how a person employs a cell phone at a specific moment to record and communicate about a particular event. Accordingly, "common sense alone does not establish probable cause to search a person's cell phone" (People v Jemmott, 164 AD3d 953, 954 [3d Dept 2018]).

Rather, the warrant application must demonstrate that the defendant used the cell phone in some way that connects the phone to the crime. For example, if police have information that a defendant texted the victim or that a defendant posted on social media a picture of himself and the victim together at a relevant time or relevant place, such information would provide a reasonable belief that evidence of the crime is contained in the cell phone's records (see People v Vergara, 79 Misc 3d 245, 247-248 [Sup Ct, Richmond County 2023] [collecting cases showing that probable cause to search the contents of a cell phone occurs only where a nexus exists between the criminal activity and a cell phone]).

In this case, the warrant application does not allege that defendant operated the cell phone at all during, or in close temporal proximity to, the charged crime. Therefore, the application lacks information to support a reasonable belief that evidence of a crime could be found on defendant's cell phone. Consequently, the court will suppress any evidence of calls and texts that defendant made and/or received, pictures and/or videos that he took or recorded, applications (e.g., emails and social media) that he accessed or used, web searches that he made or websites that he visited, information that he stored and similar type data generated as a result of defendant's use of his cell phone.

This brings the case to the seizure of cell phone records that reflect defendant's [*4]whereabouts.^[FN3] Defendant says this too must be suppressed and argues that the warrant in this case was overbroad and insufficiently particularized. Overbroad and{**79 Misc 3d at 816} insufficiently particularized are two conceptually distinct but related constitutional infirmities (People v Alexander, 207 AD3d 878, 879 [3d Dept 2022]).

First, the Fourth Amendment requires that warrants must describe with particularity the places where the police are permitted to search. "The particularity requirement protects the magistrate's determination regarding the permissible scope of the search. Thus, to be valid, a search warrant must be specific enough to leave no discretion to the executing officer" (People v Gordon, 36 NY3d 420, 429 [2021] [citations and internal quotation marks omitted]). Here, the warrant was quite detailed in exactly which data, records and information were sought. Consequently, the warrant's thorough description met the particularity requirement and left nothing to the discretion of the executing officers—in this regard it passes constitutional muster.

Turning next to the overbroad issue, the Fourth Amendment also requires that the warrant's scope be limited to the specific areas and things for which there is probable cause to search (Maryland v Garrison, 480 US 79 [1987]). In other words, the breadth of a warrant must be justified by the breadth of the probable cause. When the former exceeds the latter, the search warrant is overbroad.

[3] In this case, the warrant's temporal range is problematic. The warrant authorized the police to seize records of defendant's location from the week before the alleged kidnapping until the week after. While the cell phone's location during the time of the kidnapping may corroborate the victim's story, it is hard to comprehend how the cell phone's location in the week prior to and the week after the kidnapping would yield proof of criminal conduct. Indeed, nothing in the affidavit nor in the supporting materials remotely suggest any contact between the victim and defendant after the day of the kidnapping or the week leading up to the abduction. Moreover, the prosecution has not argued that defendant's movements prior to or after the kidnapping are relevant in this case. Therefore, the court finds that the search warrant is unconstitutionally overbroad (see e.g. VonderAhe v Howland, 508 F2d 364, 369 [9th Cir 1974] [explaining that "although there may have been probable cause to search for and seize (records of a certain type and from a certain date) there was no probable cause shown for a seizure of all the . . . books and records (regardless of type or date)"]).

{**79 Misc 3d at 817}The question arises whether the Fourth Amendment still allows evidence of the cell phone's location on the date of the alleged kidnapping—in theory, yes. This is because an overbroad directive does not invalidate the entire warrant (People v Brown, 96 NY2d 80, 85-88 [2001]). Rather, if probable cause exists for a narrower search, then a court may sever the overbroad portion of the warrant (Alexander, 207 AD3d at 881).

It might seem that the defendant has already prevailed on this point. Indeed, the court [*5]found no nexus between the utilization of defendant's cell phone and the crime. Without such a nexus, one must speculate how a suspect employed his phone, and speculation is the antithesis of probable cause. However, a major difference exists between what information a person records, accesses, or communicates on or with his phone and whether a person merely possesses his cell phone during a discrete period of time. And that difference is controlling in this case.

[4] A cell phone is seldom separated from its owner—that is not speculation, at least according to the Supreme Court: "[I]ndividuals . . . compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor's offices, political headquarters, and other potentially revealing locales" (Carpenter v United States, 585 US — —, 201 L Ed 2d 507, 522 [2018] [emphasis added]). Truly, a cell phone has become "an important feature of human anatomy" (Riley v California, 573 US 373, 385 [2014]). Thus, in this case, the warrant issuing judge could have determined that defendant likely possessed his cell phone during the approximately six hours that the victim claims that defendant held her captive. Moreover, since the cell phone's location would reveal defendant's location during that time, it could produce significant evidence corroborating the victim's account of the travels that she says she was forced to endure.^[FN4] Therefore, the court finds that the otherwise overbroad warrant may properly be severed.

Defendant makes a last attempt to suppress his cell location records. He says that the search reached beyond the geographical restriction contained in CPL 690.20 (2). A warrant issued by a city court judge can only be "executed . . . in the county {**79 Misc 3d at 818}of issuance or an adjoining county" (CPL 690.20 [2]). Here, the Albany City Court issued a warrant that authorized police to search defendant's cell records at AT&T Mobility National Subpoena Compliance Center in North Palm Beach, Florida. To state the obvious, North Palm Beach is neither located in Albany County nor in any county adjacent to it. Therefore, defendant requests that the evidence be suppressed pursuant to the exclusionary rule.

Defendant's argument is creative. His statutory claim, at least initially, hinges on where the Albany Police executed the search warrant—Albany or North Palm Beach. The Detective testified that while at South Station in Albany, he faxed the warrant to AT&T in Florida. The prosecution places great weight on this act. They argue that faxing the warrant constituted its execution. Therefore, since the execution occurred in Albany, the police complied with CPL 690.20 (2) and no evidence need be suppressed. This position seems attractive—to a degree; but there is no definitive answer provided in the case law.

Logic would suggest that a search warrant is executed when the search commences. "A search [commences] when an expectation of privacy that society is prepared to consider reasonable is infringed" (United States v Jacobsen, 466 US 109, 113-114 [1984] [internal quotation marks omitted]). Thus, the key question is when did the police invade defendant's privacy.

[5] A police officer's demand that a party comply with a search warrant endorsed by a judge establishes the initial point where law enforcement intrudes upon a person's privacy (cf. People v De Bour, 40 NY2d 210 [1976] [holding that mere questioning of an individual by a police [*6]officer engaged in a criminal law enforcement function triggers the Fourth Amendment's protection]). Thus, the Detective searched for defendant's cell records when he faxed the warrant to AT&T while at the police station (cf. People v Schneider, 37 NY3d 187, 197 [2021] [holding in the eavesdropping context that execution of the warrant occurs at the point where authorized law enforcement intentionally overhear or record the human voice contained in telephonic communications and intentionally access the transferred signals or data in the electronic communications]). Therefore, the court finds that the warrant was executed in Albany in accordance with the requirements of CPL 690.20.

This conclusion about the execution's locus rests on analogies to police questioning a suspect (De Bour) and police listening{**79 Misc 3d at 819} to calls under an eavesdropping warrant (Schneider). Such analogical reasoning by its nature is imprecise.^[FN5] Moreover, defendant is impeccably correct on one inescapable truth—nongovernmental personnel conducted the search for defendant's records in Florida, not Albany.^[FN6] Therefore, the court will rule in the alternative and address the question if the warrant's execution violated CPL 690.20's geographical restriction, should defendant's cell records then be suppressed.

Suppression is a drastic remedy. Excluding evidence hampers the search for truth and degrades the quest for justice (People v Jones, 2 NY3d 235, 241 [2004]; Herring v United States, 555 US 135, 144 [2009]). Thus, even when a search warrant is constitutionally defective, "[s]uppression of evidence . . . has always been [a] last resort, not [a] first impulse" (Hudson v Michigan, 547 US 586, 591 [2006]). Here there is all the more reason to be circumspect before eliminating evidence because the warrant transgresses a statutory rule. Indeed, "[t]he availability of the suppression remedy for . . . statutory . . . violations . . . turns on the provisions of [the statute] rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights" (People v Taylor, 158 AD3d 1095, 1099 [4th Dept 2018] [brackets in original]). Therefore, "[t]he exclusionary rule applies to a violation of a statute only where the purpose of the statute is to effectuate a constitutionally protected right" (People v Liggan, 62 AD3d 523, 524 [1st Dept 2009]).

[6] CPL 690.20 (2) circumscribes a court's territorial jurisdiction. The Legislature has not updated CPL 690.20 to reflect the ubiquitous collection of data by large multinational social media and cell companies. However, Congress has.

Congress has created a special statute dealing with search warrants seeking electronically stored information held by{**79 Misc 3d at 820} such service providers as AT&T. This statute is commonly referred to [*7]as the Stored Communications Act (SCA) (Electronic Communications Privacy Act of 1986, Pub L 99-508, title II, 100 US Stat 1860, codified as amended at 18 USC § 2701 et seq.). Under the SCA, an officer's physical presence is not required for service or execution of the warrant; rather, the statute allows the company to compile and turn over digital data under its control (see 18 USC § 2703 [g]). As the Court of Appeals noted Congress struck a balance between law enforcement and large corporations: "the framework of execution for SCA warrants ensures efficiency and minimizes intrusion into the provider's business while promoting and protecting legitimate law enforcement interests in criminal investigation" (Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.], 29 NY3d 231, 243-244 [2017]).

The point of the SCA is this—if the Legislature so chose, it could allow a city court to issue search warrants in compliance with the SCA without violating the Bill of Rights. Since none of defendant's constitutional rights were implicated by the warrant's arguable technical infringement of CPL 690.20's geographical restriction, therefore, imposition of the exclusionary rule is not called for.

Thus, the court therefore finds that the otherwise overbroad search warrant issued by the Albany City Court may properly be severed. The prosecution will be permitted to introduce any and all data and records that show defendant's cell phone's location on November 13, 2022, from 1:00 a.m. to 9:00 a.m., which is measured from one hour prior to when the victim claims the abduction occurred to approximately one hour after it ended.

Therefore, it is ordered that defendant's motion to suppress certain evidence is granted in part and denied in part, consistent with this decision and order.