Searching Cell Phones: Confirmation to get the Warrant

In People v. Hackett (4th Dept. 11/9/2018), the Fourth Department analyzed a cell phone search under the 2014 Supreme Court decision Riley v. California to find that officers may send a confirmatory text message to a defendant’s cell phone when they have been in undercover communication with him to ensure they have the proper defendant. This confirmatory text may then be used to support a valid search warrant of the defendant’s cell phone.

The defendant in this case was charged and convicted by a jury of Rape 3°. This case arose because the defendant, a 44 year old man, engaged in sexual intercourse with a 15-year-old runaway. The victim cooperated with law enforcement by reporting the incident and communicating with the defendant about the sexual encounter. Further, she turned over her cell phone to law enforcement so that they could continue to communicate with the defendant.

The text messages between both the defendant and the young girl, as well as the defendant and the police (which he did not know was the police), were key pieces of evidence at trial. The defendant made a pretrial motion to suppress these messages, which was denied by the district court.

First, the Court noted that the defendant was only allowed one suppression motion under CPL 255.20(1), The defendant tried to use subsections (2) and (3) of the same law to his benefit. These subsections allow defendants to raise new motions if there is a change in applicable law, but it is implicit that the change must actually afford the defendant relief. Here, the defendant attempted to rely on the Supreme Court’s decision Riley v. California; however, the Court rejected this argument.

The Riley Court determined that officers must generally secure a warrant before searching data stored in a cellphone. The search warrant in this case indicated among other things that when the defendant was searched incident to arrest, several messages were received on the phone from the victim’s phone sent by the police. Nothing in the warrant application supports a contention that police retrieved data prior to obtaining a warrant.

The Court noted that even if the officer’s confirmatory text did constitute a search under Riley, the validity of the warrant to search the defendant’s phone was not vitiated because the police did not use the alleged search to assure themselves there was cause to obtain the warrant in the first instance.

The defendant also contended that the verdict was contrary to the weight of the evidence. The Court rejected this argument because there was clear evidence as to the age difference between the defendant and the victim, the jury saw the incriminating text messages, and the defendant could not come up with a credible explanation for said text messages.

Because the Court found the defendant’s arguments unpersuasive and the lower court’s ruling not contrary to law, they upheld the conviction. (JC)

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