City Court of Ithaca, November 19, 2019

Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Jeffrey Walker of counsel), for defendant.

Matthew Van Houten, District Attorney, Ithaca (Amelia Christian of counsel), for plaintiff.

Defendant Adam Blakeslee moves to suppress evidence from defendant's vehicle dash camera SD memory card seized pursuant to a search warrant, dated February 6, 2019. (CPL 710.20.) Defendant further moves for dismissal of all charges pursuant to CPL 100.40. The court has considered defendant's memorandum of law, filed June 28, 2019, the People's response, filed July 31, 2019, defendant's motion, filed October 2, 2019, and the People's response, filed October 11, 2019.

No evidentiary hearing was required as there are no facts in dispute. On February 3, 2019, Ithaca police officers responded to a report of two vehicles damaged on University Avenue at approximately 1:20 p.m. Officers discovered two parked vehicles, a Honda and a Buick, both with heavy damage to their driver sides. Officers also discovered broken glass from a side mirror from a Honda Ridgeline, and determined that it was from the vehicle which had caused the damage and apparently left the scene. The officers placed a BOLO (be-on-the-lookout) for a damaged Honda [*2]Ridgeline, and subsequently Ryan's Towing contacted law enforcement and confirmed that it had towed a damaged Honda Ridgeline to Hunt's Auto Yard at 2:00 a.m. the same day. The officers inspected the suspect vehicle at Hunt's Auto Yard and confirmed that the glass mirror found in the road matched up to the suspect vehicle. Officers also observed damage and paint transfer consistent with the damage to the Buick and Honda. Officers also observed a dash camera on the front windshield of the Ridgeline. The Ridgeline was determined to belong to defendant Adam Blakeslee.

On February 6, 2019, defendant arrived at the Ithaca Police Department and stated, "It was me [and] I take full responsibility." Defendant admitted he left the scene of the accident without providing his information to the owners of the damaged vehicles or the police. The defendant blamed the icy road conditions and made no further admissions. Defendant declined to consent when he was asked by law enforcement if they could review the dash camera video from his vehicle. All of these facts were detailed in a February 6, 2019 affidavit in support of a request for a search warrant. In the affidavit, the officer stated, "[t]he items sought to be seized are the following: A SD{**66 Misc 3d at 377} card located in the silver dash cam attached to the window of a 2012 Honda Ridgeline." (Aff at 3.) The search warrant expressly stated, "You are authorized to search for and to seize the following property: A SD card located in a silver dash cam attached to the window of the [Honda Ridgeline]." Law enforcement, after locating and seizing the SD card, accessed and searched its video and audio digital contents and discovered incriminating evidence against the defendant. The video/audio files showed that the defendant was driving his Honda Ridgeline in an intoxicated condition and while doing so he crashed into the two vehicles on University Avenue. The video from the SD card showed defendant unsafely leaving the lane and striking the two parked cars. On the audio track, defendant can be heard exclaiming, "I shouldn't be driving right now" and "I'm driving around drunk." Law enforcement, upon a review of the video and audio files, discovered that defendant had been at Uncle Joe's Bar & Grill in Ithaca prior to the accident. After learning where defendant might have been consuming alcohol, law enforcement obtained video footage from Uncle Joe's which provided further incriminating evidence of defendant's alcohol consumption. Consequently, defendant was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), two counts of criminal mischief in the fourth degree (Penal Law § 145.00 [3]), reckless driving (Vehicle and Traffic Law § 1212), improper/unsafe turn/without signal (Vehicle and Traffic Law § 1163 [a]), moving from lane unsafely (Vehicle and Traffic Law § 1128 [a]), and leaving the scene of a property damage accident (Vehicle and Traffic Law § 600 [1] [a]).

The search warrant did not authorize law enforcement to search through the digital contents of the SD card, but rather the search warrant was expressly limited to "search for and to seize the following property: A SD card." The warrant, on its face, did not authorize law enforcement to do anything beyond locate the SD card and seize it. The officers exceeded the scope of the search warrant. A search of the digital files was simply not authorized by this warrant, and consequently all digital evidence, both audio and video, must be suppressed. There are two additional problems which must be noted with the search warrant, which further strengthen this court's resolve that the evidence must be suppressed. First, the search warrant does not reference or incorporate the affidavit, which in certain situations, discussed more fully below, can correct an erroneous warrant. Secondly, neither the warrant nor the affidavit details{**66 Misc 3d at 378} a "search protocol" which would have minimized the search of the digital contents to the relevant [*3]time period of February 3, 2019, the time of the alleged criminal and traffic offenses. Consequently, for these three reasons—(1) the express scope of the search warrant, (2) no incorporation of the affidavit, and (3) a failure to provide a "search protocol"—this court finds the search of the video and audio files on the SD card to be an unreasonable search and seizure. (US Const Amend IV; NY Const, art I, § 12.)

Under the Fourth Amendment to the United States Constitution, the

"right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."

"The 'basic purpose of this Amendment . . . ' . . . 'is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.' " (Carpenter v United States, 585 US —, —, 138 S Ct 2206, 2213 [2018] [citation omitted].) "When an individual 'seeks to preserve something as private,' and his expectation of privacy is 'one that society is prepared to recognize as reasonable,' . . . official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause." (585 US at —, 138 S Ct at 2213, quoting Smith v Maryland, 442 US 735, 740 [1979].) Defendant Blakeslee certainly has a reasonable expectation of privacy in the digital data stored on his dash camera SD memory card.

In Riley v California (573 US 373, 386 [2014]), the United States Supreme Court held that "officers must generally secure a warrant before conducting" a search of a cell phone incident to arrest. The Riley Court explained that "[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." (Id. at 393.) It pointed out that cell phones are "in fact minicomputers that also happen to have the capacity to be used as a telephone" and have "immense storage capacity," which "translates to millions of pages of text, thousands of pictures, or hundreds of videos." (Id. at 393-394.) "The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot{**66 Misc 3d at 379} be said of a photograph or two of loved ones tucked into a wallet." (Id. at 394.) While an SD card from a dash camera certainly does not contain the "sum of an individual's private life," the analogy still applies, and law enforcement must procure a search warrant before the digital contents on the memory card can be viewed. Here, law enforcement only obtained a search warrant which authorized seizure of the SD card; they did not obtain a warrant authorizing the search of its contents.

A search warrant must describe with particularity the place to be searched with enough specificity "to leave no discretion" to the police in order to protect the right of privacy from arbitrary intrusion by law enforcement. (People v Brown, 96 NY2d 80, 84 [2001].)

In People v Darling (95 NY2d 530, 537 [2000]), the Court of Appeals explained: "The particularity requirement reinforces the constitutional design by which the Judge and not the officer fixes the scope of the search. To minimize invasiveness, the Fourth Amendment requires that the Judge's directive be specific enough to leave no discretion to the executing officer." (Emphasis added.)

Where a search warrant on its face appears over broad and lacks particularity, but the [*4]affidavit in support of such warrant provides the requisite particularity, the overbreadth may only be cured when the search warrant expressly incorporates the affidavit by reference and when such affidavit is also attached to said warrant. (United States v George, 975 F2d 72, 76 [2d Cir 1992].) Here, the search warrant for the SD card did not incorporate the affidavit by reference. Furthermore, even if the affidavit was incorporated by reference, the affidavit likewise fails to specify that a search of the digital contents was being requested, but rather the affidavit expressly requested the authority merely to search for and seize the SD card, not to search the digital contents of said card.

Although an incorporated and attached affidavit may cure a search warrant's overbreadth, when a warrant is clear on its face, and in fact, is perhaps expressly too narrow, an affidavit cannot expand the scope of a search warrant's express limitations. A search warrant cannot be broadened by the supporting affidavit. "It is the description in the search warrant, not the language of the affidavit, which determines the place to be searched." (United States v Sedaghaty, 728 F3d 885, 914 [9th Cir 2013], quoting United States v Kaye, 432 F2d 647, 649 [DC{**66 Misc 3d at 380} Cir 1970].) Even if the affidavit had requested a search of the digital contents of the SD card, which it did not, such affidavit could not serve to broaden the expressly limited search warrant at issue here.

Although this court does not doubt that the Ithaca police officer performing the digital search of the SD memory card contents believed he possessed the requisite authority to do so, "the subjective state of mind of the officer executing the warrant is not material" to the analysis. (Sedaghaty at 914.) The Sedaghaty court further explained: " 'A policeman's pure heart does not entitle him to exceed the scope of a search warrant. . . .' . . . . Any other conclusion would elevate the author of the incorporated probable cause affidavit over the judge issuing the warrant." (Id. at 914, quoting United States v Ewain, 88 F3d 689, 694 [9th Cir 1996].)

The final deficiency, which cannot be overemphasized, is that the search warrant and affidavit fail to provide any search protocol which details how law enforcement would limit the intrusion into defendant's digital property. In Matter of the Search of Apple iPhone, IMEI 013888003738427 (31 F Supp 3d 159 [D DC 2014]), the District Court denied the government's request for a search warrant requesting a search of digital data on an individual's iPhone who was suspected of creating deadly ricin toxin because the government failed to provide a search protocol to minimize over-seizing. The iPhone court explained:

"All the Court is asking the government to do is explain how it is going to conduct this search to minimize the risk that files outside the scope of the warrant will be discovered. As the Ninth Circuit has made clear, 'the reality that over-seizing is an inherent part of the electronic search process' requires this Court to 'exercise "greater vigilance" in protecting against the danger that the process of identifying seizable electronic evidence could become a vehicle for the government to gain access to a larger [*5]pool of data that it has no probable cause to collect.' United States v. Schesso, 730 F3d 1040, 1042 (9th Cir.2013) (citing United States v. Comprehensive Drug Testing, Inc., 621 F3d 1162, 1177 (9th Cir.2010) (en banc) (per curiam))." (iPhone at 168.)

This court agrees with the iPhone court's reasoning, and "an appropriate search protocol is the answer to protecting against the government" over-seizing digital data. (iPhone at 168.)

{**66 Misc 3d at 381}The express terms of the search warrant simply did not permit a search of the digital contents of the seized SD card. Law enforcement, although they may have believed they possessed the authority to examine the contents of the SD memory card, exceeded the scope of the search warrant at issue here. The affidavit is not referred to nor incorporated into the search warrant. And even if it was, an affidavit cannot broaden the terms of an expressly limited search warrant. Furthermore, even if a search of the digital contents had been expressly authorized, no search protocol was provided to narrow the scope of any search to digital files relevant to the traffic offenses alleged to have occurred on February 3, 2019.

Here, once law enforcement found the SD memory card and seized it, no exigency existed which prevented the procurement of an additional search warrant authorizing the search, preservation and copying of the relevant digital contents stored on the SD memory card.

For the reasons stated above, the audio and video evidence seized from the defendant's SD card is suppressed. (CPL 710.20.) Further, the audio and video footage from Uncle Joe's Bar & Grill obtained as a result of viewing the dash cam footage is suppressed as the fruit of the poisonous tree. (Wong Sun v United States, 371 US 471 [1963].)

Having granted suppression, the court must now address defendant's CPL 100.40 motion which seeks dismissal of the charges upon the ground of legal insufficiency. For an information to be legally sufficient, it must contain nonhearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof (CPL 100.40). CPL 100.40 (1) states that in order for an information to be legally sufficient:

"(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

"(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

The court's suppression decision deprives the People of any evidence of defendant's intoxication, and consequently, the{**66 Misc 3d at 382} charge of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) must be dismissed.

Turning to the count of reckless driving (Vehicle and Traffic Law § 1212), the court's suppression decision deprives the People of legally sufficient evidence. Vehicle and Traffic Law § 1212 reads, in relevant part: "Reckless driving shall mean driving or using any motor vehicle . . . in a manner which [*6]unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway."

At the time of trial, the People are required to prove "something more than the mere occurrence of an accident" (People v Whitby, 44 NYS2d 76, 77 [Middletown City Ct 1943]). In Whitby, the court granted a trial order of dismissal at the close of the People's case where evidence of a collision, alcohol on defendant's breath and defendant's admission he fell asleep was not legally sufficient to establish reckless driving. (See People v Grogan, 260 NY 138 [1932] [more than mere accident required to show reckless driving].) Consequently, here, where the only evidence (after suppression) is the mere occurrence of an accident, the charge of reckless driving must be dismissed.

Under this same rationale, with respect to the two counts of criminal mischief in the fourth degree (Penal Law § 145.00 [3]), the only remaining evidence (after suppression) is the mere occurrence of an accident. The NY CJI applicable to these charges provides:

"The term 'recklessly' as used in this definition has its own special meaning in our law. . . .

"A person RECKLESSLY damages property of another in an amount exceeding two hundred fifty dollars:

"when that person does so by engaging in conduct which creates or contributes to a substantial and unjustifiable risk that such damage will occur, and

"when he or she is aware of and consciously disregards that risk, and

"when the risk is of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." (CJI2d[NY] Penal Law § 145.00 [3].)

Consequently, at the time of trial the People will not be able to provide legally sufficient evidence with respect to the{**66 Misc 3d at 383} required mens rea element of recklessness, and these two counts of criminal mischief in the fourth degree must be dismissed.

Turning to the violation level offenses of improper/unsafe turn/without signal (Vehicle and Traffic Law § 1163 [a]) and moving from lane unsafely (Vehicle and Traffic Law § 1128 [a]), the court's suppression decision deprives the People of all video footage concerning the actual happening of the accident, and consequently, these traffic violations wholly must be dismissed.

Defendant has not moved to dismiss the charge of leaving the scene of a property damage accident (Vehicle and Traffic Law § 600 [1] [a]), and the court's suppression decision does not affect this count, which is now the sole remaining charge.