DECISIONS OF THE WEEK ENDED JULY 31, 2020

| Jul 31, 2020 | Ed Sapone’s Decisions of the Week

The courts slowed down for their traditional mid-summer break, and published only two opinions of note this week. In United States v. Smith, CA2 created significant new law relating to how long the police can delay when obtaining a search warrant for previously seized electronics. In People v. Fernandez, AD1 granted a motion to reargue, reversing its prior decision on an important CPL 440.10 issue relating to the necessity of obtaining an affidavit from former counsel when raising an ineffective assistance of counsel claim.

Second Circuit

On Tuesday, in United States v. Smith, CA2 affirmed defendant’s NDNY conviction and the 212-month sentence imposed following his conviction for unlawful possession of child pornography. CA2 agreed with defendant that the police unreasonably delayed obtaining a warrant to search his tablet computer, but found that the good-faith exception to the exclusionary rule applied, and that the sentence was neither procedurally nor substantively unreasonable.

By way of background, a New York State trooper encountered defendant who was unconscious in the driver’s seat of a car pulled off in an embankment on the side of the road near Keene, New York. The trooper knocked on the door for two minutes before defendant finally responded and unlocked the doors. The trooper opened one of the doors, and reached in to put the car in park when he noticed a strong smell of alcohol and saw plastic wine jugs, a tablet computer, and a cell phone on the front passenger seat. When the defendant tried to get out of the car, he fell to the ground, appeared intoxicated and was barely able to speak. The trooper went back inside the car to check the glove compartment to look for identification.

The trooper noticed an image on the tablet’s screen of a penis appearing near a “bald” vagina. He checked with his dispatcher and learned that defendant was a registered sex offender. A state inspector instructed the trooper to seize the tablet. Defendant was placed under arrest for driving while intoxicated and he was released the next day.

Officers went to defendant’s home to ask for consent to search the tablet. Defendant declined. Officers waited for more than a month before seeking and obtaining a search warrant from a state court judge. Dozens of videos and images of child pornography were found on the tablet. Defendant was then indicted for multiple counts of possession of child pornography.

Defendant moved to suppress the contents of the tablet. Following a hearing, the court denied suppression. Defendant then pleaded guilty, reserving his right to appeal the denial of the motion to suppress. The court sentenced defendant to 212 months of imprisonment.

Defendant appealed the denial of his motion to suppress and the length of his sentence. By prior summary order, CA2 rejected all but one of defendant’s challenges to the denial of the motion to suppress. See United States v. Smith, 759 F. App’x 62 (2d Cir. 2019). CA2 concluded that the police had probable cause to seize the tablet, but that the record was not sufficiently developed to decide whether the police had waited an unreasonably long time before seeking a warrant to search its contents. CA2 remanded to the district court to conduct an additional evidentiary hearing and to make findings. The court again denied suppression, finding that the delay was not unreasonable.

CA2 disagreed, finding that the one-month delay after seizing the tablet was indeed unreasonable. CA2 considered four factors to assess whether the delay was unreasonable: (1) the length of the delay, (2) the importance of the seized property to the defendant, (3) whether the defendant had a reduced property interest in the seized item, and (4) the strength of the state’s justification for the delay.

CA2 rejected the district court’s conclusion that a one-month delay was per se reasonable. It found that a delay even shorter than one month could be unreasonable, and found the one-month delay “substantially” favored defendant. If the police seize property for the purpose of obtaining a search warrant, it is reasonable to expect that they will not delay for a month or more. On factor two, CA2 found that the nature of the property seized, a tablet, also favored defendant, because of the sheer volume of personal data that could be stored on it. On factor three, CA2 again found that the factor favored defendant: the tablet was taken from defendant’s car without permission and defendant declined to consent to the search the following day. Finally, on factor four, CA2 found that the police’s excuse, that they were too busy, also was inadequate. It, too, weighed in defendant’s favor.

CA2, however, declined to apply the exclusionary rule, because the law at the time that the police delayed obtaining the warrant was not clear; nor had the delay been used to obtain a strategic advantage.

CA2 also rejected defendant’s sentence challenges. First, CA2 found that it was not procedurally unreasonable to credit the testimony of a prior alleged victim of defendant, who was only three or four years old at the time of the prior offense. It was not an abuse of discretion, because she testified that she recalled what happened clearly as it was a life-altering experience. CA2 also found the sentence substantively reasonable because of defendant’s possession of large amounts of child pornography and his history of sexually violating children.

CA2’s decision can be found here.

Appellate Division, First Department

In People v. Fernandez, AD1 reversed the order of the Supreme Court, New York County, that had summarily denied defendant’s CPL 440.10 motion to vacate his conviction on ineffective assistance of counsel grounds, finding that defendant’s allegations were sufficient to warrant a hearing.

Defendant’s CPL 440.10 motion included an affirmation from counsel detailing his efforts by phone and email to contact former trial counsel regarding what he had done to obtain a suppression hearing. Trial counsel was unresponsive and refused to submit an affidavit. Supreme Court denied the motion, concluding that the failure to include an affidavit from trial counsel was reason enough to deny the motion.

In a decision dated February 18, 2020, AD1 had affirmed. However, defendant moved to reargue, arguing, among other things, that trial counsel could essentially block any ineffective assistance of counsel claims by refusing to cooperate. While that re-argument motion was pending, NYCA granted leave to defendant to appeal. Perhaps seeing the handwriting on the wall, AD1 then recalled its prior opinion, agreeing with defendant that a hearing should have been ordered.

AD1’s decision can be found here.

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