People v. Pierre
| Decision Date | 21 March 2016 |
| Docket Number | 3505/2015 |
| Citation | 29 N.Y.S.3d 110,2016 N.Y. Slip Op. 26095,51 Misc.3d 1035 |
| Parties | The PEOPLE of the State of New York v. Jimmy PIERRE, Defendant. |
| Court | New York Supreme Court |
51 Misc.3d 1035
29 N.Y.S.3d 110
2016 N.Y. Slip Op. 26095
The PEOPLE of the State of New York
v.
Jimmy PIERRE, Defendant.
3505/2015
Supreme Court, Kings County, New York.
March 21, 2016.
Kenneth P. Thompson, Esq., Kings County District Attorney, by Assistant District Attorney Kenneth Blake and Assistant District Attorney Kevin O'Donnell, for the People of the State of New York.
Brooklyn Defender Services by Sonia Tate–Cousins, Esq. and Amanda Jack, Esq., for Defendant, Jimmy Pierre.
MIRIAM CYRULNIK, J.
Defendant moves to controvert the search warrant issued in this case, and for suppression of evidence seized pursuant to its execution. The People oppose. In deciding this motion, the court reviewed defendant's Motion to Controvert, the People's Affirmation in Opposition1 and defendant's Response to the People's Opposition. The court also examined unredacted copies of the search warrant and supporting affidavit presented to the issuing judge, a copy of the applicable Terms of Service from Google, and an affidavit from a Google manager, all submitted by the People.2
Pursuant to a complaint received on April 24, 2014, defendant was arrested on July 3, 2014, and indicted under Indictment No. 5362/2014 (hereinafter the 2014 indictment) for Course of Sexual Conduct Against a Child in the First Degree (P.L. § 130.75[1][a] ) and other charges. The offenses alleged under this indictment took place at 47 McKeever Place in Kings County.
On September 11, 2014, Detective Luciana Queiroga, acting upon information received from the National Center for Missing and Exploited Children (hereinafter NCMEC), showed the Assistant District Attorney prosecuting defendant under the 2014 indictment 14 images of child pornography. The 14 images in question had been uploaded to a Google Picasa account. They were detected by Google, confirmed by means of a manual
human review3 and subsequently reported to NCMEC's CyberTip line on or about August 20, 2013.4 Detective Queiroga's investigation, which included subpoenas to Google and relevant cellular service providers, determined that the Google Picasa account to which the images were uploaded belonged to defendant, whose address was 47 McKeever Place in Kings County. Upon reviewing the images the Assistant District Attorney determined that the subject depicted is the complaining witness in the 2014 indictment.
On September 17, 2014, Detective Queiroga applied to a judge of this court for a warrant to search 47 McKeever Place for property, including computer equipment, electronic media storage devices, cameras, cellular telephones and physical records. The search warrant application also requested authority for forensic examination of any electronic devices recovered as a result of the search. The issuing judge granted the application and signed the search warrant as submitted.5 It was executed the next day. The property recovered during the execution of the warrant included computers, cellular telephones and electronic media storage devices. Forensic examination led to the discovery of 47 images of child pornography.
On June 4, 2015, defendant was indicted on 47 counts of Possessing a Sexual Performance by a Child (P.L. § 263.16–one for each image recovered in the search) and other charges, under Indictment #3505/2015.6 The present motion practice ensued.
Defendant offers three arguments in support of his motion to controvert: 1) that the information supplied to the issuing
judge in support of the search warrant failed to establish the reliability and basis of knowledge of the informant and thus failed to provide probable cause for the search; 2) that Google and NCMEC acted as agents of the government, and therefore violated defendant's Fourth Amendment rights, by accessing and examining the images in question without a search warrant; and 3) that the information forming the basis for the search warrant was too stale to provide probable cause. The court will address each of defendant's arguments in turn.
Standing
The People submit that defendant essentially consented to any search, arguing that his “acceptance of Google's terms of service is tantamount to a waiver of any expectation of privacy in the content of that account” (People's Memorandum of Law at 10). They have offered in support a copy of the Terms of Service they assert were in effect at the time the 14 images were uploaded (People's Exhibit A).7 They rely on a portion of one sentence, taken from the section entitled “Using our Services,” that states “[w]e may review content to determine whether it is illegal or violates our policies....” Defendant does not dispute that he agreed to Google's Terms of Service, though terming the agreement “implicit.” Rather, he argues that any such agreement does not negate his standing to challenge the warrant and ensuing search (Defendant's Response to People's Opposition at 3–4). This court concurs.
It is not clear exactly what Google users were agreeing to by accepting the Terms
of Service, because its language was vague. Significantly, Google's warning that it might review content is qualified by the rest of that sentence and the one that follows: “We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don't assume that we do ” (emphasis added).
The penalties abusers of the site appear to face are just two: removal of objectionable material and a block on its display. There is no reference of any kind to law enforcement, much less an indication that Google intended to cooperate with law
enforcement entities by turning over such material to them. Under the circumstances, while it could be fairly inferred that Google users were consenting to monitoring by the company for compliance with its policies, it cannot be fairly inferred that users were consenting to a search so as to defeat a Fourth Amendment claim (see, e.g., United States v. DiTomasso, 56 F.Supp.3d 584 [S.D.N.Y.2014] ).
Defendant has asserted a personal, legitimate expectation of privacy in the premises searched and the property seized. “This burden is satisfied if the accused subjectively manifested an expectation of privacy with respect to the location or item searched that society recognizes to be objectively reasonable under the circumstances” (see People v. Burton, 6 N.Y.3d 584, 588, 815 N.Y.S.2d 7, 848 N.E.2d 454 [2006] ). Defendant is not required to “personally admit possession of the contraband in order to comply with the factual pleading requirement of C.P.L. § 710.60 ” (id. at 589, 815 N.Y.S.2d 7, 848 N.E.2d 454 ). Therefore, the court finds that defendant has standing to challenge the search warrant.
Probable Cause
Defendant argues that the search warrant must be controverted, pursuant to Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), because the People failed to establish probable cause for the search by demonstrating to the issuing judge the reliability of a confidential informant, namely Google, and the basis for Google's knowledge of the images in question.
The People argue that the Aguilar–Spinelli test is inapplicable here, since Google is not a confidential informant and probable cause for the search warrant could be established without any reference to Google as the source of the information concerning the images in question.
This court recognizes the “strong judicial preference for search warrants” (People v. Leggio, 84 A.D.3d 1116, 1117, 923 N.Y.S.2d 188 [2d Dept.2011] [citations omitted] ). It is understood that the “search warrant application must provide the court with sufficient information to support a reasonable belief that evidence of illegal activity will be present at the specific time and place of the search” (People v. Williams, 249 A.D.2d 343, 344, 670 N.Y.S.2d 893 [2d Dept.1998], lv. denied 92 N.Y.2d 883, 678 N.Y.S.2d 30, 700 N.E.2d 568 [1998] ; see also People v. Corr, 28 A.D.3d 574, 816 N.Y.S.2d 82 [2d Dept.2006], lv. denied 7 N.Y.3d 787, 821 N.Y.S.2d 817, 854 N.E.2d 1281 [2006] ).A search warrant must be supported by evidence establishing probable cause to believe that an offense has been or is being
committed, or that evidence of criminality may be found in a certain place (People v. Londono, 148 A.D.2d 753, 539 N.Y.S.2d 484 [2d Dept.1989] ; see also
People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985] ; People v. Schiavo, 162 A.D.2d 639, 556 N.Y.S.2d 954...
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