Opinion
Ind. No. 73585/22
08-17-2023
The PEOPLE of the State of New York v. Jason MENDOZA, Defendant.
Melinda Katz, District Attorney (Loren Vetrano, of counsel), for the People. David Ocasio, for defendant.
Melinda Katz, District Attorney (Loren Vetrano, of counsel), for the People.
David Ocasio, for defendant.
Frances Y. Wang, J. Defendant, Jason Mendoza, has submitted an omnibus motion (hereinafter "Defense Omnibus Motion"), dated April 18, 2023, seeking orders for the following: (1) inspecting the Grand Jury minutes and/or reducing or dismissing for insufficient evidence or other defects pursuant to Criminal Procedure Law § (hereinafter "C.P.L.") C.P.L. §§ 210.20 and 210.30 ; (2) suppressing any and all statements made by Defendant, or in the alternative, granting a Huntley/Dunaway hearing; (3) granting preclusion of unnoticed evidence under C.P.L. § 710.30 ; (4) granting a pre-trial Voluntariness hearing for statements by Defendant sought to be used on cross-examination; (5) granting a pre-trial Voluntariness hearing for any statements made to civilians; (6) invalidating the People's Certificate of Compliance (hereinafter "COC"); (7) controverting the search warrant and granting suppression; (8) requiring the People to file a Bill of Particulars; (9) directing the People to comply with their obligations under C.P.L. § 245.55 ; (10) directing the People to comply with their obligations under C.P.L. 245.35(3) ; (11) granting a Sandoval hearing; and (12) reserving Defendant's rights to make additional motions as necessary and additional relief that the Court deems just and proper.
The People's response (hereinafter "People's Response") dated May 9, 2023: (1) opposes dismissal and or reduction of any charges contained in the indictment; (2) opposes suppression of Defendant's statements or a Huntley hearing; (3) opposes a Voluntariness hearing as premature; (4) opposes preclusion under C.P.L. § 710.30 as moot; (5) opposes invalidation of the COC; (6) reserves their argument as to Defendant's motion to controvert the search warrant; (7) provides a Bill of Particulars; (8) acknowledges their Brady obligations; and (9) opposes a Sandoval hearing. The People did not address the arguments regarding the motion to controvert the search warrant in their response.
On May 18, 2023, Defendant submitted an additional motion and affirmation in support of his motion to controvert the search warrant. Defendant argued that the search warrant was invalid, and the evidence should be suppressed for several reasons: (1) the showing of probable cause for the warrant was based on an unconstitutional search, specifically body-worn camera footage from another date inside Defendant's home, (2) the retention of body-worn camera from an unrelated investigation violates his right to privacy, (3) key factual information in the warrant application, specifically evidence obtained from Snapchat, was "stale," and therefore did not establish a substantial probability that the evidence at issue would be at the location at the time of the search, and (4) the officers executing the search warrant did not have the warrant with them when they searched.
On June 28, 2023, the People filed a supplemental response to Defendant's Motion (hereinafter "People's Supplemental Response"), opposing Defendant's motion to controvert the search warrant. They argued that the search warrant should not be controverted, and the evidence not suppressed because: (1) the detective's viewing of the body-worn camera was not an unreasonable search, (2) even if the detective's viewing of body-worn camera was a search, the warrant is still valid based on the evidence obtained from Snapchat, (3) the information from Snapchat was not stale because the detective viewed the images, about a week before the issuance of the warrant, and (4) the executing officers were not required to show a copy of the "no-knock" search warrant.
On July 11, 2023, Defendant filed a reply to the People's supplemental response to the motion to controvert the search warrant (hereinafter "Defendant's Reply"), expanding on his arguments about the constitutionality of the body-worn camera, and arguing that without the body-worn camera video, the NYPD lacked an independent source for the address of the residence.
The Court decides the motion as follows:
On October 25, 2022, at 6:21 pm, a judge in Queens County Criminal Court signed a Search Warrant authorizing members of the NYPD to search:
"456 Beach 40st Street, Apartment 11F, County of Queens, State of New York, more specifically a twelve-story residential building, made of light colored brick, accessible by a front door made of metal, with a small glass window, the front of the location is clearly labeled ‘456 Beach 40st Street’ in blue writing with a white background, (hereinafter ‘the Subject Location’)."
The Search Warrant alleged reasonable cause to believe that the following items were present:
"firearms, ammunition, firearm paraphernalia, shell casings, spent rounds, and other ballistic evidence, as well as hidden compartments that could be used to conceal storage containers or boxes that could hold firearms, ammunition, or any other ballistic evidence; as well as evidence of ownership, occupancy or registration (included but not limited to bills, mail, license, credit cards, registration documents, vehicle ownership documents, insurance documents, handwritten notes, fingerprints and DNA evidence, etc."
The Search Warrant order was issued ex parte. The underlying information for the Search Warrant originated from an affidavit signed by Detective Steven Humburg of NYPD's 101 Precinct Field Intelligence Squad, before the issuing Criminal Court judge.
On November 2, 2022, officers executed the search warrant and recovered of a loaded Smith and Wesson 40 Caliber firearm. Defendant has moved to controvert the Search Warrant and the People oppose Defendant's motion.
Preliminarily, Defendant has standing, relying on the contents of the search warrant and the allegations that Defendant resided at the location authorized to search, specifically 456 Beach 40th Street, Apartment 11F, County of Queens, State of New York. Accordingly, the Court has conducted an in-camera review of the Search Warrant, and the accompanying materials presented to the issuing judge, including the Search Warrant Affidavit with annexed exhibits, the transcript of Detective Humberg's testimony from issuance of the warrant, and the Grand Jury transcript. Upon reviewing all the materials mentioned above, this Court finds that the requirements for issuing the warrant were not complied with and grants Defendant's motion to controvert.
Both the federal and state constitutions provide that "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." U.S. Const. amend. IV ; NY Const. art I, § 12. Probable cause for the issuance of the warrant may be based upon hearsay as long as the application for the warrant demonstrates both the reliability of the informant and the basis of the informant's knowledge. People v. Griminger , 71 N.Y.2d 635, 639, 529 N.Y.S.2d 55, 524 N.E.2d 409 (1988).
C.P.L. § 690.30(1) prescribes that a search warrant may be executed "not more than ten days after the date of issuance and it must thereafter be returned to the court without unnecessary delay." The basic requirement for a search warrant is that the facts and circumstances justifying authority to search must be closely enough related in time to the search to support a finding of probable cause to believe the object of the search will be located at the place to be searched when the search is to occur. People v. Glen , 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614 (1972) ; United States v. Grubbs , 547 U.S. 90, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). There is no constitutional provision governing validity of the warrant during the time gap between issuance and execution, but C.P.L. § 690.30(1) assures reasonableness by providing a ten-day time limit check against stale search warrants for validity from issuance to execution.
While C.P.L. § 690.30(1) provides no time constraint within which a warrant must be issued after law enforcement officers establish probable cause, in determining staleness, courts weigh two considerations: the nature of the crime under investigation and the nature of the property sought by the warrant. The existence of stale information in an affidavit will not render a warrant automatically defective if it also contains additional, more recent, facts constituting probable cause. People v. Church , 31 A.D.3d 892, 819 N.Y.S.2d 155 (3d Dept. 2006).
The Court agrees with the Defendant's argument that the information used to obtain the search warrant was stale at the time of the warrant's issuance and execution. The Search Warrant Affidavit referenced two screenshots attached as Exhibits 1 and 2, stating:
"e. I further state that on October 16, 2022, at approximately 3:00AM, I observed Clarence Jackson post a Snap video from his account, ‘c-drilla,’ which depicted the Subject holding what appeared to be a black firearm, inside of the Subject Location.
I further state that I was able to take a still shot from the above-mentioned Snap video which depicts the Subject holding the above-mentioned black
firearm, and tags the Subject's snapchat account "@mel_flamer456.’ (See Exhibit 1)...
f. I further state that on October 18, 2022, at approximately 12:50PM, I observed the Subject post a Snap video on his account ‘mel_flamer456,’ which depicted the Subject inside of the Subject Location holding what appeared to be a black firearm.
I further state that I was able to take a still shot from the above-mentioned Snap video, which depicts the Subject holding what appeared to be a black firearm. (See Exhibit 2)." (emphasis supplied)
As it relates to the nature of the crime, courts generally find information is not stale when the allegations constituting probable cause indicate a continuing offense. People v. Clarke , 173 A.D.2d 550, 570 N.Y.S.2d 305 (2d Dept. 1991) ; People v. Tune , 103 A.D.2d 990, 479 N.Y.S.2d 832 (3d Dept. 1984). Even with the passage of time, information giving rise to probable cause may still be sufficient if the property sought is such it would be likely to present despite such delay. People v. Varas , 110 A.D.2d 646, 487 N.Y.S.2d 577 (2d Dept. 1985) ; People v. Fernandez , 210 A.D.3d 693, 177 N.Y.S.3d 631 (2d Dept. 2022).
On the other hand, courts find that information relied upon is stale when supporting affidavits contain allegations of isolated incidents significantly prior to the application for the search warrant and when the activity is not of an ongoing or continuous nature. See People v. Acevedo , 175 A.D.2d 323, 572 N.Y.S.2d 101 (3d Dept. 1991). This is based on the manifest idea that "the proof must be of facts so closely related to the issue of the warrant as to justify a finding of probable case at that time. " People v. Padilla , 132 A.D.2d 578, 517 N.Y.S.2d 299 (3d Dept. 1987), quoting Sgro v. United States , 287 U.S. 206, 210-211, 53 S.Ct. 138, 77 L.Ed. 260(1932) (emphasis supplied); see also People v. Edwards , 69 N.Y.2d 814, 816, 513 N.Y.S.2d 960, 506 N.E.2d 530 (1987) ("a search warrant application must provide the magistrate with information sufficient to support a reasonable belief that evidence of illegal activity will be present at the specific time and place of the search.").
In Acevedo , the Third Department found that the supporting affidavits contained allegations of a solitary sale approximately two months prior to the application for the search warrant. There were no allegations of ongoing or continuing criminal activity. Thus, there could be no reasonable belief that the cocaine was still on the defendant's premises at the time of the application for the warrant. Id. , at 324, 572 N.Y.S.2d 101. See also People v. Rodriguez , 303 A.D.2d 783, 758 N.Y.S.2d 172 (3d Dept. 2003) (evidence of a single drug transaction does not, without more, support the conclusion that the activity is continuous); see also People v. De Jesus , 125 Misc.2d 963, 480 N.Y.S.2d 807 (Sup. Ct. Kings County 1984) (holding that the statement alleging frequent drug sales was entirely conclusory and not supported by facts, therefore it did not justify an inference of continuous activity for the purposes of assessing stateliness).
Similarly, in People v. Loewel , the police sought a warrant to search the defendant's house for proceeds of a burglary that had occurred in the past. In the application for the warrant, the officer's affidavit stated that an informant had told him that the proceeds of the burglary "were located" in the defendant's house, but did not state when the informant learned his facts or when he communicated them to the officer. Therefore, the court concluded that "the information placing the [proceeds] in the house could have been as much as 4 ½ months old, and the affidavits failed to negate the possibility that the information furnished was stale." People v. Loewe , 50 A.D.2d 483, 487, 378 N.Y.S.2d 521 (4th Dept. 1976), aff'd, 41 N.Y.2d 609, 394 N.Y.S.2d 591, 363 N.E.2d 316 (1977) ; see also People v. Engle , 68 A.D.2d 915, 414 N.Y.S.2d 196 (2d Dept. 1979) (stating that at the very least, the affidavit must indicate the date on which the criminal activity occurred).
In this case, in the Search Warrant Affidavit, Detective Humberg states that in his training and experience, he has learned that Snapchat operates as follows:
"A Snapchat user can take a photograph or video ‘Snap’ using their mobile device's camera in real time and send it to another Snapchat user. The sender of the Snap then selects a time, from one to ten seconds, for the recipient of the ‘Snap’ to view the photograph or video. The sender may then save the photograph or video on their own mobile device, or just send the photograph or video without saving it. The photograph or video will automatically delete from the recipient's device once it is viewed. However, the recipient of a
‘Snap’ is permitted to replay a ‘Snap’ one additional time before it is deleted. Notwithstanding this deletion feature, according to Snapchat's published privacy policy, Snapchat collects and retains the content associated with these photographs and images, as well as if the recipient of the ‘Snap’ viewed the content, replay the content, and metadata associated with
the content. Snapchat uses also have an option to select the ‘infinity’ icon which allows their friends to view a ‘Snap’ for an indefinite period of time. " (emphasis added)
The Court agrees with Defendant's argument that the information obtained in the Search Warrant application is stale and therefore must be invalidated. First, similar to in Acevedo , the two isolated dates do not establish an ongoing or continuous pattern of criminal activity, and therefore, it did not indicate a reasonable belief that that firearm was still at the premises. Second, neither the Search Warrant Affidavit nor the annexed screenshots established when the subject possessed the firearm, or if the firearm could be located at the location at that time.
Here, the Snapchat photos are not dated and make no indication of whether the photos were recently made or saved. This is problematic, because as the Search Warrant Affidavit itself explains, while a user can send a "Snap," in real time, the sender may also save the photograph or video on their device or resend it without saving it, or can select the "infinity" icon, in which case the user's friends will be able to view the "Snap" for an indefinite period of time. Here, neither the Affidavit, nor the annexed screenshots, indicate which one of these methods was used to transmit or view the images, so there is no way of knowing when the videos were taken. The Snapchat video referenced in the Search Warrant application could have been from months or even years before, and therefore, it failed to negate the possibility that the information furnished was stale.
Accordingly, because the People did not meet their burden, the motion to controvert the search warrant and suppression of all evidence stemming from the warrant is granted.
As the warrant is invalid, the additional branches of Defendant's omnibus motion are moot.
This decision constitutes the order of the Court.