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POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT).

The Fourth Department determined the ruling by the US Supreme Court in Riley v California (124 S Ct 2473) did not provide grounds for defendant’s second and untimely motion to suppress evidence seized from a search of his cell phone pursuant to a warrant. Before applying for the warrant, at the time of arrest, a police officer sent a text to a phone number used in communications between the victim and defendant and noted that a text message arrived on defendant’s phone shortly thereafter. The Fourth Department held that sending the text and observing the arrival of a text did not violate Riley:

The Riley Court determined that “officers must generally secure a warrant before conducting [a search of data stored in a cell phone]” … . Here, the search warrant application for defendant’s phone indicates, among other things, that, after defendant’s arrest and the recovery of a cell phone from him during a search incident to the arrest, the applicant officer sent a text message to the phone number that had been used during earlier communications between the victim and defendant, and the officer noted that the phone recovered from defendant upon his arrest signaled the arrival of a new text message moments later. Contrary to defendant’s contention, however, nothing in the warrant application supports the inference that the police opened or manipulated the phone to get inside to retrieve data prior to obtaining the search warrant. Although Riley prohibits warrantless searches of cell phones incident to a defendant’s arrest, Riley does not prohibit officers from sending text messages to a defendant, making observations of a defendant’s cell phone, or even manipulating the phone to some extent upon a defendant’s arrest …  Indeed, Riley provides that the search incident to arrest exception to the warrant requirement entitles law enforcement officers to “examine the physical aspects of the phone” after it has been seized … . Inasmuch as the information included in the warrant application is not suggestive of a warrantless search of the phone, we conclude that the Supreme Court’s decision in Riley did not provide good cause for defendant’s untimely second suppression motion. Thus, the motion was properly denied … .

Moreover, even if the officer’s actions in sending a confirmatory text message to defendant’s phone did constitute an unlawful search under Riley, we nevertheless conclude that the validity of the warrant to search defendant’s phone was not vitiated. The police did not use the alleged illegal search ” to assure themselves that there [was] cause to obtain a warrant’ in the first instance” … , and the remaining factual allegations in the warrant application provided probable cause to search the cell phone that was recovered from defendant at the time of his arrest. People v Hackett, 2018 NY Slip Op 07557, Fourth Dept 11-9-18

CRIMINAL LAW (POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SUPPRESSION (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/SEARCH AND SEIZURE (CELL PHONES, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))/CELL PHONES (CRIMINAL LAW, SEARCH AND SEIZURE, POLICE OFFICER’S SENDING A TEXT TO DEFENDANT’S PHONE FROM A NUMBER USED TO COMMUNICATE WITH THE VICTIM, AND OBSERVING THE ARRIVAL OF A TEXT ON DEFENDANT’S PHONE SHORTLY THEREAFTER, DID NOT VIOLATE THE US SUPREME COURT’S RULING IN RILEY REQUIRING A WARRANT FOR A CELL PHONE SEARCH (FOURTH DEPT))

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