The People, Respondent,v.Stephen DeProspero, Appellant.BriefN.Y.Feb 12, 2013STATE OF NEW YO THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, STEPHEN DePROSPERO, De fendant-Appellan t, Indictment No.: I 2010-315 REPLY BRIEF ON BEHALF OF DEFENDANT-APPELLANT FRANK POLICELLI, ESQ. Attorney for Defendant-Appellant 10 Steuben Park Utica, New York 13501 (315) 793-0020 Oneida County District Attorney for Plaintiff-Respondent 235 Elizabeth Street Utica, NY 13501 (315) 798-5766 TABLE OF CONTENTS Page TABLE OF CONTENTS ...................e.e.e...e.ee.e.e..eeee....e..e.......eee....e....e.....e..a...eee.aeee i . . TABLE OF AUTHORITIES CITED ...................ee.ee..e.e.eeeee...eee.....e..................... 11 A R G U M E N T ~ ~ e ~ e ~ ~ e ~ e e e ~ ~ ~ a ~ ~ e ~ e ~ ~ e e ~ ~ e ~ e e ~ e e e e e e e n e ~ e e a e ~ e a e e e e e e e e m a a e e e n 1 POINT I WHETHER DIGITAL MEDIA SEIZED AND SEARCHED PURSUANT TO A VALID WARRANT MAY BE SEARCHED A SECOND TIME UNDER THE STATUTORY SCHEME OF CRIMINAL PROCEDURE ........................................................ PROCEEDING HAS TE INATED 1 POINT I1 TABLE OF AUTHORITIES Cases Matter of Documents Seized Pursuant to a Search Warrant, 124 Misc. 2d 897 United States v. $490,920 in U.S. Currency, 9 1 1 F. Supp 720, 725 (SDNY 1996).. 3 United States v. Barner, 666 F.3d 79 (2d Cir. 2012) ........................................................ 4 United States v. Harrell, 530 F3d 105 1 (9th Cir.) . ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Statutes CPL $690.00 .......................................................................................................................... 1, 4, 6 CPL $690.55 ........................................................................................................................ 1, 2, 3 POINT I WHETHER DIGITAL MEDIA SEIZED AND SEARCHED PURSUANT TO A VALID WA NT MAY BE SEARCHED A SECOND TIME UNDER In Point I of Respondent's Brief on Page 20 he admits that the prosecutor believed that since the property was obtained by a lawful warrant and the prosecutor and police had lawful temporary possession of the property pursuant to the Court's order (A 77) the additional "review" or search was lawful pursuant to that warrant. What the Respondent never addresses is the fact that a search warrant issued by the Court is part of the statutory scheme that governs the Court's power to issue orders for securing evidence under CPL tj 690 et seq. A search warrant is an order issued by a Court to accomplish that purpose. Once the property is seized pursuant to a lawhl Order the property belongs to the Court with temporary retention given to the prosecutor and state police so they can use this property as evidence in a criminal prosecution of the defendant. The defendant's reasonable expectation of privacy in the property used is obviously diminished because society deems the need to use this as evidence in a criminal prosecution as serving a greater purpose. However, once the case is no longer pending then the need for the property on the part of the state is diminished and the expectation of privacy for the defendant in non-contraband property is restored. The CPL statutory scheme takes that into account under $690.55 that gives the Court the power to dispose of property seized pursuant to a lawful warrant. The facts of the instant case are not in dispute. No order from the Court was ever sought by the ADA who took it upon himself to decide whether the property should be returned or not by conducting a second search of the property for contraband. The fact that the ADA took on the task of deciding whether to return any property to DeProspero was a violation of 5690.55 of the CPL. By taking on the judicial role of ordering the property searched by the state police for a second time, after the criminal proceedings had terminated and DeProspero9s expectation of privacy in no-contraband property was restored, the ADA acted without jurisdiction and in violation of the statutory scheme dealing with securing evidence through Court Orders under CPL 5690 et seq. The respondent cannot now argue that the search was pursuant to a valid warrant when the statutory scheme that the warrant is part of is violated. Once the criminal proceeding had terminated and 8690.55 becomes applicable, if the ADA wants to search property for contraband he needs an order from the Court to do so - even if he argues a "new predicate." It is for the Court to determine whether a "new predicate" exists and not the ADA. As stated by Judge Rothwax in In the Matter of Documents Seized Pursuant to a Search Warrant, 124 Misc. 2d 897 (1 984): When the property seized is no longer needed as evidence, the Government must establish in an appropriate proceeding, - an independent interest to justify any further retention. Id at 903 (emphasis added) No proceeding was ever brought before the Court based on any new predicate. Since the ADA did not go to the Court and comply with 5690.55 of the CPL the search of the property for contraband was without jurisdiction and warrantless. Lending further support to DeProspero's position is Judge Preska's decision in United States v. $490,920 in U.S. Currency, 9 1 1 F. Supp 720,725 (SDNY 1996) that specifically holds that New York's statutory warrant and seizure scheme is jurisdictional in nature and that the "res" (or property in the Court's custody under the statute) is subject only to orders of the state court. Judge Preska quotes from a Fifth Circuit case that if seized property is not to be used as evidence, it shall be disposed of according to the law, under the direction of the judge. Judge Preska cites the above case authored by Judge Rothwax and both cases lead to the inescapable conclusion that under New York's statutory scheme for securing evidence an order from the court is needed if the property is sought to be forfeited by the Government or transferred to another court or used in another investigation or returned. If none of the above apply then the Court can issue an order to destroy the property (i.e., drugs, other contraband per se.) If the evidence is blood or DNA the Court could have that preserved and 3 stored because such evidence may serve as a "special needs" type of property that serves a "non-criminal purpose as well as a criminal purpose." United States v. Barner, 666 F.3d 79 (2d Cir. 2012.) The search of the digital camera in the instant case, at a time when DeProspero's expectation of privacy had been restored and the legal right to retain and search the property by the ADA no longer existed under CPL 5690.00 et seq, even though physical possession was still with the police, constitutes an illegal search without a Court's order. No exception to the warrant requirement exists and to argue that the May, 2009 warrant could still be used after the criminal proceeding has terminated would also mean that the warrant could still be used to search DeProspero's residence again which, it is submitted, would be unreasonable. POINT 11 The Respondent argues in its brief that, upon the request for return of property from a criminal defendant, it has the right to search the property for contraband before releasing the property from their custody. All of the cases cited in Respondent's Brief and those cited in DeProspero's main brief (pp 10- 12) say that contraband cannot be returned. This is obvious. The real question is what is contrabandper se and can an item that serves a legitimate purpose like a camera be searched for contraband. The Respondent cites United States v. Harrell, 530 F3d 105 1 (9th Cir. 2008) for the proposition that the Government bears the burden of proving that an item is contraband and then goes on to admit that the digital media storage device (camera) itself is not contrabandper se but it may contain contrabandper se. (See pg. 26 of Respondent's Brief.) His admission concedes the point that the camera was not contrabandper se. To qualify as contrabandper se, possession of the object, without more, would constitute a crime; or, in other words, if there is no legal purpose to which the object could be put. Harrell, supra at 1057. This can hardly be said of the digital camera as opposed to drugs in a glassine bag or any other item that on its face makes it readily apparent to be contraband. In the instant case it is the search for contraband that is the issue and not the fact that contraband cannot be returned. There is a simple solution - either wipe the hard drive clean or get an Order from the Court to retain the property for the purpose of searching for contraband. In Point I1 of his brief respondent seems to advocate for a new exception to the warrant requirement by arguing that a search for contraband before returning property is reasonable because the intrusion on DeProspero's property interest is outweighed by the promotion of legitimate governmental interests. Respondent also asserts the fact that the property was physically in the possession of the police as a factor affecting the equation. Respondent further argues that for policy reasons law enforcement should be allowed to conduct a search for contraband before returning property because it's a minimal intrusion into the defendant's possessory rights because the property is already in police custody and the type of crime involved (child pornography) is a factor that should be weighed in the balance. The Respondent also never distinguishes time to search when a case is pending from searching when a case is terminated. All the cases he cites deal with cases where the charges are still pending so the expectation of privacy by the defendant is lessened. The fact that the physical possession of the property is with the police is irrelevant to DeProspero's expectation of privacy once the proceedings have terminated and the police hold the property only as a bailee until the Court orders what should be done with it. It's not hard to imagine that in this day and age an emotional appeal to fight the crime of child pornography is laudable but certainly not at the expense of our constitutional rights and the basic form of Government involving separation of powers. To allow a blanket rule allowing prosecutors and police to search property in their possession as part of a statutory scheme dealing with the securing of evidence under CPL 8690.00 without the Court's involvement circumvents the very fiber of the legislation that gives the power to the Courts to secure evidence. The judicial check on the executive branch is required by the legislative branch and the Respondent's position would thwart that balance of power without any control or limits. This is not in any legitimate governmental interest. CONCLUSION Accordingly, the search in the instant case for contraband before returning property was illegal and the evidence should be suppressed.