People v. Worrell, 1486

• Decision Date: 02 March 2018
• Docket Number: 1486,2012
• Citation: 71 N.Y.S.3d 839,59 Misc.3d 594
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Ekins WORRELL, Defendant.
• Court: New York Supreme Court

59 Misc.3d 594

71 N.Y.S.3d 839

The PEOPLE of the State of New York, Plaintiff,

v.Ekins WORRELL, Defendant.

1486

2012

Supreme Court, Queens County, New York.

Decided on March 2, 2018

Deborah S. Modica, J.

On remand from the Appellate Division, and after a hearing, the defendant, Ekins Worrell, has filed a Memorandum of Law in Support of his Motions to Suppress Physical Evidence and to Controvert the Search Warrant in which he asks this Court to find that law enforcement violated his reasonable expectation of privacy by accessing the content of his home computers without a warrant and that the search warrant which was obtained later was obtained untruthfully and without probable cause. The People's response urges the Court to deny the defense motions in their entirety. The Court decides the motions as follows.

FACTUAL AND LEGAL HISTORY

The New York City Police Department executed a search warrant at the defendant's home, the basement apartment at 86–15 233 Street, Queens County, on April 25, 2012. Detective Damon Gergar recovered twenty-three compact discs containing child pornography and thirty-two electronic devices including a laptop computer, internet router, and cable modem from the bedroom of the defendant's basement apartment. The defendant was arrested and was initially charged with forty-three counts of Promoting a Sexual Performance by a Child (PL 263.15) and forty-three counts of Possessing a Sexual Performance by a Child (PL 263.16). The defendant was subsequently indicted, under Queens County Indictment number 1486/2012, with forty (40) counts of Promoting a Sexual Performance by a Child (PL 263.15) and forty (40) counts Possessing a Sexual Performance by a Child (PL 263.16).

After a forensic examination of items recovered during the search warrant execution, the defendant was indicted again, under Queens County Indictment number 967/2013, for one-thousand-three-hundred-forty-seven (1,347) additional counts of Promoting a Sexual Performance by a Child (PL 263.15) and one-thousand-three-hundred-forty-seven (1,347) additional counts of Possessing a Sexual Performance by a Child (PL 263.16).

In a motion dated August 12, 2013, the defendant moved, inter alia , to suppress his statements and to controvert the search warrant, challenging the affiant's basis of knowledge and the reliability of the source of the information in the search warrant affidavit. The defendant argued that a "hash value" does not reveal the contents of a file, and therefore, the court was misled into believing that a user at the target location of the search warrant possessed or distributed child exploitation files. The defendant further contended that since the defendant's IP address was the sole connection linking the affiant's internet observations to the defendant, the affiant failed to establish probable cause. In response, the People argued that the issuance of the search warrant was proper because the search warrant affidavit provided reasonable cause to believe that evidence of illegal activity would be present at the time and place of the search. In a decision and order dated October 16, 2012, the court granted a hearing on the motion to controvert the search warrant, as well as a Huntley hearing to determine the admissibility of the defendant's statements to law enforcement. (Camacho, J.)

On February 5, 2013, this Court conducted a Huntley hearing while the motion to controvert the search warrant was still pending. The People called one witness, Det. Damon Gergar; the defendant called no witnesses. In a decision and order dated March 12, 2013, this Court denied the defendant's motion to suppress statement evidence, finding that the credible testimony of Det. Gergar established that the defendant was neither in custody when he made statements nor was he actually being interrogated by law enforcement.

On March 8, 2013, the defendant filed a Supplemental Motion to Suppress pursuant to CPL 710.40(2) which moved to suppress evidence recovered as a result of Det. Gergar's allegedly illegal search. The defendant contended that he only became aware of the need for such a motion after receiving the grand jury testimony of Det. Gergar prior to the Huntley hearing.

In a written decision dated March 12, 2013, this Court denied the defendant's motion to controvert the search warrant. Additionally, the Court noted receipt of the defendant's Supplemental Motion to Suppress and denied the motion from the bench for several reasons, one of which being that it was untimely. The Court later provided the parties with a written decision denying the defendant's Supplemental Motion to Suppress which embodied the findings which were previously made on the record. The Court again held that the defendant's motion was untimely and that the portions of grand jury testimony which the defendant attached in support of his motion failed to show any new facts which were not already contained in the affidavit in support of the search warrant.

On May 13, 2013, the defendant pleaded guilty to two counts of Promoting Sexual Performance by a Child (PL 263.15) in satisfaction of both indictments, and was promised an indeterminate sentence of one to three years on one count and a consecutive indeterminate sentence of one and three-quarters years to five and one-quarter years on the other count. (Kron, J.) On May 30, 2013, the defendant was sentenced as promised. (Kron, J.)

In a decision dated April 27, 2016, the Appellate Division, Second Department ordered that the defendant's appeal be held in abeyance and remitted the matter back to this Court for a hearing and a "new determination thereafter of that branch of the defendant's omnibus motion which was to controvert a search warrant and his separate motion to suppress physical evidence on the ground that it was the product of an unlawful search by police."

Accordingly, this Court conducted a hearing in order to determine the defendant's motions to controvert the search warrant and to suppress physical evidence. In a post-hearing memorandum of law, the defendant argues, inter alia , that the defendant had a reasonable expectation of privacy in his home, that Det. Gergar trespassed while obtaining files from his computer, that the search warrant affidavit contained false claims that Det. Gergar had personal knowledge of the files on the defendant's computer, and that the search warrant affidavit falsely claimed that Det. Gergar obtained evidence using publicly available peer-to-peer software. The People submitted a memorandum of law in response in which they argue that the contents of the defendant's computer were not remotely accessed by law enforcement, that the defendant had no reasonable expectation of privacy when using a peer-to-peer network, and that probable cause existed for the issuance of the search warrant.

FINDINGS OF FACT

DETECTIVE DAMON GERGAR, a seventeen-year veteran of the New York City Police Department, testified that he has worked in the Vice Major Case Unit, which investigates sex trafficking cases as well as the exploitation of children on the internet, child pornography, and pedophilia, since 2009. The majority of the cases that he investigates involve the use of internet-based, peer-to-peer networks which share child exploitation videos and images.

Det. Gergar utilizes various law enforcement tools and computer software to locate individuals in his jurisdiction who have downloaded or shared child exploitation files on peer-to-peer networks. A peer-to-peer network (hereinafter "P2P") is when two or more computers connect with each other over the internet, without the need for a central server, where they can then exchange files such as music, movies, applications, and games. There are many different types of P2P networks which are known throughout the internet community, such as the Gnutella network, the Ares network, BitTorrent, and eDonkey.

Det. Gergar began investigating P2P networks in 2010 and has received training on the Child Protection System (hereinafter "CPS") and GigaTribe. In addition, he has received training with respect to undercover chat investigations, forensic preview training, forensic imaging training, and sex trafficking training. Det. Gergar was trained on CPS by a company named TLO, and the training was sponsored by the Internet Crimes Against Children Task Force (hereinafter "ICAC"). ICAC is a nationwide task force which is comprised of numerous law enforcement agencies that work on child exploitation cases, including child pornography and internet chat room cases. He has also been trained by the Federal Bureau of Investigation and the National White–Collar Crime Center in forensic preview, which is a basic, cursory search of a computer during the execution of a search warrant to determine whether there are child exploitation files on the device. If the forensic preview finds child exploitation files, the computer will be taken to the NYPD's Computer Crimes Unit for a full forensic examination.

Detective Gergar received training on the software tools CPS and Shareaza Law Enforcement (hereinafter "Shareaza LE"). CPS is a tool which locates IP addresses in a law enforcement officer's jurisdiction which might have child exploitation files. Deg. Gergar has used CPS to target IP addresses in New York City which have been seen, by CPS, to have available for sharing known child sexual exploitation files. CPS also has a repository of thousands of known child exploitation files that have been identified by law enforcement based upon their Secure Hash Algorithm Value or "SHA1 hash value". As Gergar explained, every image and video possesses a hash value, which is a unique set of numbers and letters. As law enforcement officers view and identify child exploitation files, they isolate the files' hash values and enter them into the repository. Hash values are like a person's DNA; no two images or videos can have the same hash value. For example, if a person were to take a digital photograph...