Brooklyn Court Invalidates Warrant to Search Smartphone for Harassing Messages


Last week, a court in Brooklyn issued a decision, People v. Russell, Index No. 1384/2018, 2018 N.Y. Misc. LEXIS 5028 (Sup. Ct. Kings County Oct. 31, 2018), granting a motion to controvert a search warrant that was used to search data on the Defendant's Samsung smartphone. Ayele Russell was charged with attempted murder in the second degree; aggravated harassment in the second degree; and related offenses. The warrant authorized a search of the phone for messages sent to harass the victim, and for the cell site location history at the time of the alleged attempted murder.

The warrant was used to collect, "information pertaining to, inter alia, the defendant's call logs, video data files, SMS messages and a time line of his usage for the period between February 8, 2018 and February 12, 2018." Id. at *3. The Defendant contended that it was overboard and failed to satisfy the particularity requirements of Fourth Amendment to the United States Constitution and section 12 of article 1 of the New York Constitution because it allowed for all data on the device to be searched. In his opinion, Justice Matthew J. D'Emic stressed the importance of the fact that the affidavit which a police officer submitted with the warrant merely stated that Russell sent the victim harassing text and WhatApp messages, and that the issuing judge did not consider any other evidence.

The Court found the warrant to be unconstitutional because of its failure to describe the items to be searched with particularity. The items to be seized must be specified by their relation to crimes a Defendant is charged with.

The warrant and the warrant application, "intended to include a directive that authorized law enforcement agents to seize any threats or harassing messages the defendant transmitted to the complainant. By characterizing the items subject to seizure as evidence of the offenses listed in the first paragraph of the warrant, the People embrace an impermissibly broad interpretation of the particularity requirement." Id. at *8-9. The first paragraph referred to criminal contempt and attempted coercion - offenses Russell was not charged with.

Justice D'Emic did however uphold the validity of the warrant with respect to, "a search for data mapping out the defendant's location for the period commencing when he met the complainant on February 11, 2018 through his arrest on February 12, 2018." Id. at *10.


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