Under the “four corners rule,” only the content of the affidavit for search warrant can be considered, but what about unrecorded oral testimony in support? New York procedural law requires the issuing magistrate who considers oral representations in further support of the application keep notes. While the Fourth Amendment doesn’t incorporate state procedural requirements, it is appropriate to consider the judge’s notes in evaluating whether probable cause exists. United States v. Lucas, 2019 U.S. Dist. LEXIS 89234 (W.D. N.Y. May 29, 2019):
The Court notes that New York Criminal Procedure Law § 690.40(1) provides that “[i]n determining an application for a search warrant the court may examine, under oath, any person whom it believes may possess pertinent information. Any such examination must be either recorded or summarized on the record by the court.” The New York Court of Appeals has held that “substantial—rather than literal—compliance may satisfy” this requirement, but has also concluded that a judge’s “few notes taken for his own edification cannot be equated with an effort, let alone a conscientious effort, to create a contemporaneous record of the testimony… as required by statute.” People v. Taylor, 73 N.Y.2d 683, 689, 541 N.E.2d 386, 543 N.Y.S.2d 357 (1989). However, at least one appellate court in New York has found that a judge’s notes that “summarize the essential points of the testimony … are adequate to substantially comply with the requirements of CPL 690.40(1)[.]” People v. Mendoza, 5 A.D.3d 810, 812, 773 N.Y.S.2d 152 (3d Dep’t 2004). In this case, Judge Case’s notes are more akin to the notes approved of in Mendoza than those disapproved of in Taylor, and therefore arguably constitute substantial compliance with New York’s recording requirement.
In any event, regardless of whether Judge Case complied with New York’s statutory recording requirement, “the Fourth Amendment does not incorporate state procedural criminal law.” United States v. Bernacet, 724 F.3d 269, 277 (2d Cir. 2013); see also United States v. Jones, No. 10-CR-168, 2012 U.S. Dist. LEXIS 189001, 2013 WL 4541042, at *5 (W.D.N.Y. Aug. 27, 2013) (“Where evidence secured from a state search warrant is employed in a federal prosecution, … review of the warrant is concerned solely with the requirements of the Fourth Amendment.”). “The Fourth Amendment does not require that statements made under oath in support of probable cause be tape-recorded or otherwise placed on the record or made part of the affidavit.” Morris, 2011 WL 13127949 at *3 (quoting United States v. Shields, 978 F.2d 943, 946 (6th Cir. 1992)). As such, Judge Case’s notes may be considered in the Court’s assessment of whether probable cause supported issuance of the warrant.