Court Tosses Phone Evidence After First Warrant Was Too Vague And Second Warrant Was Too Late

Legal Issues

from the reasonable-AND-timely dept

For searches to be compliant with the Constitution, their underlying warrants need to be just as compliant. Warrants have been required for cell phone searches since 2014, thanks to the Supreme Court’s Riley decision.

Nearly a decade on, and the government is still suffering periodic bouts of unreasonableness when performing phone searches. We recently covered a case where evidence was suppressed because the FBI took more than three years to crack a phone and performed a search anyway, despite agreeing to time limits placed on the original warrant by the magistrate judge.

This case, coming to us via FourthAmendment.com, involves two problematic warrants, both of which combine to hand the government a loss in the evidence department. The decision [PDF], handed down by a New York trial court, says the government failed twice when handling searches related to a domestic dispute between Naquan Smith and his girlfriend — one that allegedly involved Smith brandishing a gun.

Smith’s girlfriend filed domestic violence complaints following two consecutive incidents, occurring November 28 and 29 of 2021. An additional report from a neighbor reporting a man carrying a gun led to the recovery of a gun at a field near the apartment Smith resided in. During the course of his arrest, Smith’s iPhone was seized. A search warrant was obtained four days after Smith’s arrest on November 29.

But this warrant was pretty much a worthless piece of paper and was successfully challenged by Smith’s lawyer following his indictment.

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.

Somehow that bit of legal fiction was approved by a judge. While there are criminal acts that involve regular phone communications, domestic violence generally isn’t one of them. And the apparent ditching of the gun suggested Smith was trying to distance himself from physical evidence, so it would seem unlikely he would have confided in anyone else about this weapon.

The first search warrant was executed on December 2, 2021. A year later — and six months after the first search warrant was successfully challenged in court — the investigator applied for a second search warrant. And somehow, this one was also granted.

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.

That last assertion seems suspect, to say the least. The text messages the investigator claimed weren’t derived from the first unconstitutional search were used to shore up the rest of the shaky assertions that were seemingly copy-pasted from the original (deficient) warrant.

The court says the second warrant was valid and provided probable cause for a search. But that’s not the end of the discussion. There’s the matter of timeliness. And that’s where the second warrant falls apart. The court quotes Second Circuit precedent, derived from a case involving a seized tablet.

The Second Circuit employs a four factor test to discern whether the application is timely: (1) the length of time before seeking a search warrant; (2) the importance of the seized property to the defendant; (3) whether the defendant had a reduced property interest in the seized item; and (4) the strength of the prosecution’s justification for the delay. United States v. Smith, 967 F3d 198 (2d Cir. 2020). Federal courts have invalidated search warrant applications where the prosecution delayed for merely a period of days.

Almost every factor is in play here, but the court emphasizes the second prong: a phone is even more crucial to day-to-day existence than a tablet computer.

At issue here is a cell phone, arguably even more valuable to the owner because of its greater inter functionality. This court concludes that although probable cause for the Iphone searches was made out in the December, 2022 application, the search then was not in accord with the Fourth Amendment. Under the four factor test the Second Circuit articulated, the People’s unreasonable delay in seeking this application outweighs other considerations.

But also important is the justification of any delayed searches by the state. Nothing was offered here.

The People’s search warrant application ran afoul of the legislative intent that the defense have access to all discoverable material as soon as possible. The People served and filed their certificate of readiness in this case on April 23, 2022. On July 20, 2022, the court issued its decision granting the defendant’s motion to controvert the first search warrant. On September 29, 2022, with no change in the parties’ respective positions, the court directed them to be ready for hearings and trial on November 10, 2022. The People offer no cognizable explanation for why they waited until after the original hearing and trial date was set to resurrect their search for the target items, or why there was any need to do so ex parte.

It runs counter to the legislative intent to permit the People to declare their readiness, yet continue to obtain investigative material for their use at trial from the defendants without his knowledge. The court must assume that the People filed their certificate of readiness in good faith, and that no information derived from these searches would be necessary to try the defendant.

Notice also the “ex parte.” The government sought a search warrant without notifying the defense of its intention to do so by using the judicial backdoor. Only after it had performed this search did it bother to inform the defense. That’s trial by ambush. And, fortunately for the defendant, the court has tossed the evidence derived from this second, secret, and long-delayed warrant.

It’s not like there isn’t any legal guidance or precedent in cases like these. The New York trial court quoted plenty in its brief, but pointed, rejection of the second warrant. But apparently the side with all the law on it just doesn’t much care for laws and legal precedent that might dissuade it from doing what it wants.

Filed Under: 2nd circuit, 4th amendment, naquan smith, probable cause, riley, timeliness, warrant