People v. DeProsperoPeople v. DeProspero
APPEARANCES OF COUNSEL
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), for respondent.
Peradotto, J.
The novel issue raised on this appeal from a judgment convicting defendant upon a plea of guilty of predatory sexual assault against а child (
Factual and Procedural Background
In 2008 and early 2009, an undercover State Police investigator worked to identify individuals sharing child pornography on the Internet over peer-to-peer file sharing networks. A certain IP address was a download candidate for suspected child pornography files over 40 times between February 18, 2009 and March 3, 2009, and the investigator confirmed that three specific images associated with that address contained child pornography. The IP address was traced to defendant‘s home. Based on that investigation, the investigator applied for and obtained a warrant authorizing the search of defendant‘s home and the seizure of his computers therefrom, including “peripheral equipment such as keyboards, printers, modems, scanners, or digital cameras and their internal or external storage media.” When the warrant was executed on May 5, 2009, a “limited preview” of defendant‘s computer revealed an image of an unknown female child performing oral sex on a male adult. Defendant was arrested, and the police seized various items of electronic equipment belonging to him, including a computer and two digital cameras.
Shortly after his arrest, defendant‘s employer contacted the District Attorney‘s Office and indicated that defendant had worked with children in the course of his еmployment, that he had displayed a particular interest in one child, and that other children had reported that defendant may have photographed them. Unbeknownst to the Assistant District Attorney (ADA) assigned to defendant‘s case, the property seized from defendant in May 2009 was not promptly subjected to a full forensic еxamination by the State Police Crime Laboratory. Thus, mistakenly believing that the evidence against defendant was limited to the single image of child pornography discovered during execution of the search warrant, and apparently concerned
After sentencing, defendant‘s attorney contacted the ADA and requested the return of defendant‘s property seized pursuant to the May 2009 warrant. Prior to releasing the property, however, the ADA instructed the State Police to examine it to ensure that no contraband was returned to defendant. In January 2010, a State Pоlice investigator found hundreds of pornographic images and videos of children on defendant‘s computer, as well as a “deleted video clip” on one of defendant‘s cameras. The investigator recovered 353 still-frame images from the deleted video clip, depicting the penis of an adult male in the mouth of an autistic male child who appeared to be less than 12 years old and resided in a group home where defendant worked (hereafter, victim). The external hard drive of defendant‘s computer contained other images, both pornographic and otherwise, of defendant and the victim. A physical examination of defendant in March 2010 confirmed that defendant had a birthmark on his penis matching that of the adult male in the images recovered from the deleted video clip. State and federal prosecutions ensued.
On August 5, 2010, defendant was indicted on one count of predatory sexual assault against a child (
Following a suppression hearing, the court denied those parts of defendant‘s omnibus motion seeking dismissal of the indictment
Defendant thereafter pleaded guilty to predatory sexual assault against a child, admitting that, at some point between September 25, 2006 and December 25, 2007, he engaged in oral sexual contact with a child less than 13 years of age. Defendant was sentenced to an indeterminate term of 18 years tо life, and he now appeals.
Discussion
Addressing first defendant‘s contention pursuant to
Here, the 2009 and 2010 offenses arose from separate criminal transactions. A criminal transaction is comprised of two or
We likewise reject defendant‘s further contention that the May 2009 search warrant authorizing seizure of his computer and related items was not based upon probable cause. Probable cause for the issuance of a search warrant is established when a warrant application provides a reviewing magistrate with information sufficient to support a reasonable belief that evidence of a crime will be found at the place to be searched (see People v Edwards, 69 NY2d 814, 815-816 [1987]; People v Bigelow, 66 NY2d 417, 423 [1985]; People v Martinez, 298 AD2d 897, 898 [2002], lv denied 98 NY2d 769 [2002], cert denied 538 US 963 [2003], reh denied 539 US 911 [2003]). Approval by a reviewing magistrate cloaks a search warrant with “a presumption of validity” (People v Castillo, 80 NY2d 578, 585 [1992], cert denied 507 US 1033 [1993]; see People v Welch, 2 AD3d 1354, 1357 [2003], lv denied 2 NY3d 747 [2004]). Here, the sworn warrant aрplication of the State Police investigator provided probable
Turning to the novel issue on appeal, we conclude that the court properly refused to suppress evidence uncovered in the January 2010 search of property seized pursuant to the May 2009 warrant. While it is indeed the case that the examination at issue of defendant‘s property occurred after sentencing on another charge and followed defendant‘s request for the return of such property, we conclude that the police conduct in this case did not violatе defendant‘s Fourth Amendment rights for a number of reasons. First, defendant provides no support for his contention that the authority to search his property pursuant to the May 2009 warrant terminated at the conclusion of the 2009 prosecution, and we reject that contention. The search warrant directed the policе to seize, inter alia, defendant‘s computers, external drives, storage media, and cameras, and “authorize[d] the police agency to retain said property for the purpose of further analysis and examination.” There was no deadline in the warrant for completion of the forensic examination and analysis, “nor [does] the Fourth Amendment provide[ ] for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant” (United States v Hernandez, 183 F Supp 2d 468, 480 [2002]; see United States v Syphers, 426 F3d 461, 469 [2005], cert denied 547 US 1158 [2006]; United States v Gorrell, 360 F Supp 2d 48, 55 n 5 [2004] [“The warrant did not limit the amount of time in which the government was required to complete its off-site forensic analysis оf the seized items and the courts have not imposed such a prophylactic constraint on law enforcement”]; United States v Triumph Capital Group, Inc., 211 FRD 31, 66 [2002] [the Fourth Amendment does not “impose any time limitation on the government‘s forensic examination of the evidence seized”]). Indeed, “[t]he Fourth Amendment itself ‘contains no requirements about when the searсh or seizure is to occur or the duration’ ” (Syphers, 426 F3d at 469, quoting United States v Gerber, 994 F2d 1556, 1559 [1993]). Rather, “[t]he Fourth Amendment only requires that the subsequent search of the computer be made within a reasonable time” (United States v Mutschelknaus, 564 F Supp 2d 1072, 1076 [2008], affd 592 F3d 826 [2010]).
Here, we conclude that the search of defendant‘s property was conducted within a reasonable period of time (see id. at 1076-1077; see also United States v Brewer, 588 F3d 1165, 1173 [2009]; United States v Burgess, 576 F3d 1078, 1097 [2009], cert denied 558 US 1097, 130 S Ct 1028 [2009]). We note that therе is no evidence that the ADA or the police acted in bad faith, or that defendant was prejudiced by the delay in searching his property (see Brewer, 588 F3d at 1173; Burgess, 576 F3d at 1097; United States v Cameron, 652 F Supp 2d 74, 81-82 [2009]). At the suppression hearing, the ADA testified that defendant‘s arrest and the seizure of his property was part of a large-scale operation targeting child pornogrаphy, and that it was his understanding that the State Police Crime Laboratory would be analyzing all property uncovered in the investigation. It was not until defendant requested the return of his property that the ADA spoke to the State Police and realized that not all the property had been tested by that time. A senior investigator at the State Police Crime Laboratory testified that evidence sent there is analyzed on a “triage” basis, with priority given to certain cases, such as those involving a live victim, cases going to trial, or cases in which no arrest has been made. Here, because the limited preview of defendant‘s computer by the police during execution of the search warrant yielded a single image of child pornography and defendant pleaded guilty to possessing a sexual performance by a child (
Although defendant contends that he was entitled to the immediate return of his property upon his demand for that property after sentencing on his 2009 conviction, we agree with the People that the police had an obligation to search defendant‘s property for contraband before returning it to him (see generally United States v Jeffers, 342 US 48, 54 [1951]; United States v LaFatch, 565 F2d 81, 83 [1977], cert denied 435 US 971 [1978]; Matter of Sea Lar Trading Co. v Michael, 94 AD2d 309, 315-316 [1983], appeal dismissed 60 NY2d 860 [1983]). Indeed, returning contraband, i.e., child pornography, to a defendant would constitute a crime (see
Finally, we reject defendant‘s further contention that the police were required to obtain a new search warrant before searching the property seized pursuant to the May 2009 warrant. “Once a person or his [or her] effects have been reduced to custodial control in the law enforcement system his [or her] privacy has been intruded upоn” (People v Perel, 34 NY2d 462, 465 [1974]). The subsequent search of the property lawfully seized “is then but a lesser-related intrusion incident to the [seizure] already effected” (People v Greenwald, 90 AD2d 668, 668 [1982]; see Perel, 34 NY2d at 465; People v Payne, 233 AD2d 787, 787 [1996] [“Once a person has been placed in custody, his (or her) privacy has been compromised and the subsequent examination and testing of items seized at the time of arrest is permissible as a lesser-related intrusion incident to the arrest already effected”]). Once defendant‘s property had been lawfully seized pursuant to the May 2009 warrant, he lacked a legitimate expectation of privacy in that property, notwithstanding the passage of time (see People v Natal, 75 NY2d 379, 384 [1990], cert denied 498 US 862 [1990]; People v Nordahl, 46 AD3d 579, 580 [2007], lv denied 10 NY3d 842 [2008]; People v King, 232 AD2d 111, 117-118 [1997], lv denied 91 NY2d 875 [1997]).
Accordingly, we conclude that the judgment should be affirmed.
Centra, J.P., Fahey, Green and Gorski, JJ., concur.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.