The affidavit for the search warrant for defendant’s cell phone completely failed to show probable cause to search it and seize photographs. People v. Boothe, 2020 NY Slip Op 07084. 2020 N.Y. App. Div. LEXIS 7311 (2d Dept. Nov. 25, 2020):
Contrary to the People’s contention, the arresting officer’s conclusory statement that the cell phone contained information relevant to the robbery was bereft of any supporting factual allegations—hearsay or otherwise—and, therefore, plainly insufficient to establish probable cause (see People v Augustus, 163 AD3d at 982-983). Although the arresting officer later testified, at trial, that he had observed photographs of a gun on the cell phone at the time of the defendant’s arrest, such information—which arguably could have established probable cause provided it had been lawfully obtained (compare People v Watson, 163 AD3d 855, 858, with People v Marinez, 121 AD3d 423, 423-424; see generally Riley v California, 573 U.S. 373)—was never included in the officer’s supporting affidavit. Under these circumstances, the warrant application did not provide a reasonable factual basis for the issuance of the warrant (see People v Jemmott, 164 AD3d 953), and, therefore, the defendant’s motion, inter alia, to controvert the warrant should have been granted.
Moreover, contrary to the People’s contention, the error in denying the defendant’s motion, and in admitting photographs downloaded from the defendant’s cell phone, cannot be deemed harmless beyond a reasonable doubt under the circumstances of this case (see People v Augustus, 163 AD3d at 983; compare People v Marinez, 121 AD3d at 424, with People v Jemmott, 164 AD3d at 954).