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Photos taken from Defendants’ Phone suppressed; new trial granted...

As strange as it may seem to some, people like to take photographs on their phone of illegal activity. Here, the Defendant had allegedly taken photographs on his phone of a pistol resembling a pistol recovered in the case. “This evidence demonstrated that the ‘decision to seek the warrant was prompted by what [the police] had seen during the initial entry’ (Murray v. United States, 487 US 533, 542 [1988]). Rather than applying for a warrant on the basis of mere probable cause, the officer ‘achieve[d] certain cause by conducting an unlawful confirmatory search,’ which ‘undermines the very purpose of the warrant requirement and cannot be tolerated’ (People v. Burr, 70 NY2d 354, 362 [1987] [internal citation and quotation marks omitted], cert denied 485 US 989 [1988]). The Court did not refuse to suppress this evidence on any other ground or exception. Further, the Court refused to find harmless error because “The People not only presented the photos to the jury but also called two witnesses who testified extensively that the pistol shown in the photos was the same firearm recovered by the police. The prosecutor also emphatically relied on the photos in summation.”

Held: “The court should have granted defendant's motion to suppress photographs obtained from his cell phone. After the police arrested defendant and seized his phone, an officer looked through it without a warrant, and found two photos stored on the phone that depicted a pistol resembling the pistol recovered in this case. It was not disputed that the search of defendant's cell phone was unlawful. Moreover, a recent decision of the United States Supreme Court holds that a cell phone is not a proper subject of a warrantless search incident to arrest (Riley v. California, 573 US __, 134 S Ct 2473 [2014]).”

The case is The People v. Marinez, 3772/11, NYLJ 1202672435984, at *1 (App. Div., 1st, Decided October 2, 2014).

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