The People, Respondent,v.Stephen DeProspero, Appellant.BriefN.Y.Feb 12, 2013To Be Argued By: Frank Policelli, Esq. Utica, New York Estimated Time: 15 Minutes STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Plaintif-Respondent, STEPHEN DePROSPERO, Defendant-Appellant, Indictment No.: 12010-315 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 800 Park Ave. Utica, NU 13501 (315) 798-5766 JURISDICTIONAL STATEMENT This Court has jurisdiction to entertain the appeal under CPLR 5602(a)(i) in that it involves the appeal of an order of the appellate division which finally determines the action (A-2) and which is not appealable as of right. Permission was granted to appeal to this Court via Certificate granted March 13,2012 (A-1). The question of law for the Court of Appeals to review and the reasons for such review are as follows: Did a warrantless search occur in violation of both the Federal Constitution and New York State Constitution when the police searched DeProsperoqs property for contraband after the criminal proceedings had terminated and DeProsperoqs attorney requested that the property be returned without the police first obtaining an Order from the court to search the property. It is important for the Court of Appeals to state the boundaries of permissible searches and seimes and the jurisdictional separation of powers under both the state and federal constitutions that will give guidance to future cases dealing with fundamental rights against unreasonable searches and seizures. A related Federal case involving the same constitutional issue is pending in the Second Circuit Court of Appeals. Oral Argument is scheduledfor June 13,2012. TABLE OF CONTENTS Page TABLE OF CONTENTS ......................................................................................... i . . TABLE OF AUTHORlTIES CITED .............................................................. I I STATEMENT OF FACTS ...................................................................................... I ARGUMENT ............................................................................................................ 5 POINT I THE SEARCH OF DePROSPERO'S DIGITAL CAMERA AFTER THE CFUMNAL PROCEEDINGS HAD TERMINATED WAS A BOTH THE STATE AND FEDERAL CONSTITUTIONS ...................... 5 CONCLUSION ............................................................................................ 14 TABLE OF AUTHORITIES Cases Coolidge v. New Hampshire, 403 U.S. 443 (1971) ................................................. 1 l Matter of DeBellis v. Propem Clerk, 79 NY2d 49 (1992.) ............................................................ 5 Matter of Sea Lar Trading Co. v Michael, 94 AD2d 309 (1983) ............................ 12 Matter of Search Warrant, 124 Misc.2d 897 (Supreme Ct, New York Cty, 1984.) ..... 5 People v. Scott, 79 NY2d 474 ......................................................................... 7, 10, 12, 13 Stanley v. Georgia, 394 U.S. 557 (1969) ............................................................................ 1 1 United States v. $490,920 in U.S. Currency, 91 1 F. Supp 720, 725 (SDNY 1996).. 5 th United States v. Carey, 172 F3d 1268 (10 Cis. 1999) ................................................. 11 United States v. Harrell, 530 F3d 1051 (9th Cis.) ............................................................ 11 United States v. LaFatch, 565 F.2d 81, 83 (6'h Cir. 1977) ........................................................ l l ............................................................... United States v. Jeffers, 343 U.S. 48, 54 (1951) 10 Statutes CPL $690.55 ........................................................................................................................... 5 , 6 9 STATEMENT OF FACTS On May 4,2009 Oneida County Court Judge Michael Dwyer issued a search warrant for the residence and electronic media owned by Stephen DeProspero. The search warrant was executed and one image of dhild pornography was located on DeProspero's computer. DeProspero was arrested and charged with the possession of the sexual performance of a child. The case was prosecuted by Oneida County Assistant District Attorney Todd Carville who testified that subsequent to DeProspero's arrest he received an email from DeProspero's employment for the State of New York Developmental Disabilities Services Offices. The email voiced concerns that DeProspero may have been taking advantage of DDSO consumers. Carville contacted his state police contacts in this case and made them aware that the property seized p~rsuant to the warrant may contain evidence of a live victim and other crimes besides the one image of child pornography whose prosecution was pending. Carville was always of the belief from his meetings with the State Police and other prosecutors that the property obtained from several search warrants issued in this investigation would be examined by the state police at the state police lab. (A-33) Carville also testified that he was assured by the state police that they would conduct a search of all the property (A-34). DeProspero pled guilty by way of a Superior Court Information on September 17,2009 and was sentenced on November 2,2009 to six months in the Oneida County Jail and 10 years probation. Camille testified that the reason he made the plea offer to DeProspero's lawyer was because at the time he was aware of only one image of child pornography on the computer and time was running short to indict and announce readiness under CPL $30.30. Since Camille had not received any feedback from the state police with his concern of homemade child porn being contained in the property he had no reason to believe the property had not been thoroughly searched and no further contraband had been found. In November DeProspero's attorney contacted ADA Carville requesting the property be returned. Camille told him to call back in 30 days to make sure no notice of appeal had been filed from the November 2,2009 sentencing. DeProspero's lawyer contacted Carville in December 2009 for the return of property. Carville told the attorney that he could have the property back that did not contain contraband but that ii' the property contained contraband it could not be returned (A-37). Carville said he would check with the state police to determine what property they searched that contained contraband and what property did not contain contraband assuming all the time that the state police had thoroughly searched all the property and would be able to tell him whether any contraband existed other than the one image that DeProspero had been prosecuted for. During the course of corresponding with the state police Carville learned that not all the property had been tested (A-39). Camille told the state police that he expected everything to be looked at first before it was returned to determine if any contraband was present (A-42). The state police suggested to Carville that to assure no contraband is returned it was the policy of the state police to just wipe the hard drive clean. Camille contacted a local Utica Police Officer who advised Carville that "wipe orders" don't always work. Carville then decided against a wipe order and instructed the state police to search the property for contraband. (A-42). The state police conducted searches of the electronic media in January and February of 2010 and the memory card of the digital camera contained deleted images of DeProspero having sexual contact with a minor that led to the charges contained in indictment 20 10-3 15. Camille testified that he never sought a court order in connection with the return of property and never asked for a new search warrant to search the property once the criminal proceedings had terminated on December 2, 2009. It was Carville's belief that since the police had the property in their possession that property was lawf~tlly seized pursuant to a search warrant. Carville testified that he believed that Mr. DeProspero had no expectation of privacy in the property and therefore the police had a right to search. Carville specifically testified that he believed the search warrant issued on May 4, 2009 was still effective to search the property after the criminal proceedings had terminated (A-44-45). Carville believes he has a right to search property for contraband before returning the property after criminal proceedings had terminated without the need ofjudicial intervention in deciding how to dispose of the property obtained from the search warrant. Carville testified that he never sought a court order but believed that the appropriate procedure for DeProspero's lawyer to follow was to seek an Order from the Court for a return of property (A-56). The search warrant return gave temporary retention ofthe property to the state police subject to the Order of the Court (A-77). DeProspero's motion to suppress was denied by way ofJudge D y e r ' s decision dated December 8, 2010 (A-8) and DeProspero pled guilty to the tirst count of the indictment on Dec. 22,20 10 and was sentenced on February 14,20 1 1 . On November 2 1,20 1 1, the Fourth Department affirmed the conviction (A-2) and leave was granted by this Court on March 13,2012 (A-1). POINT I THE SEARCH OF DePROSPERO'S DIGITAL CAMEM AFTER THE CRIMNAL PROCEEDINGS HAD TERMINATED WAS A WARRANTLESS SEARCH REQUIRING SUPPRESSION UNDER BOTH THE STATE AND FEDERAL CONSTITUTIONS Article 690 of the Criminal Procedure Law deals with procedures for securing evidence by Court Orders. This legislation includes procedures for judges to issue search warrants. The legislature has given the judiciary the power (jurisdiction) to deal with the securing of evidence, and the disposing of evidence obtained under this Article. New York's statutory warrant and seizure scheme is jurisdictional in nature. United States v. $490,920 in U.S. Currency, 911 F. Supp 720, 725 (SDNY 1996.) 5690.55 of the CPL states that the disposal of seized property is the Court's responsibility - not the District Attorney's. 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. Matter of Search W a n - , 124 Misc.2d 897,903 (Supreme Court, New York County, 1984.) This Court held in Matter of DeBellis v. Property Clerk, 79 NY2d 49,58 (1 992) that although the Government may seize and hold a citizen's property for a variety of reasons in connection with a criminal proceeding once those proceedings have terminated ". . . due process requires that the property be returned upon demand unless the Government can establish a new basis for its detention." Id at 57. The Court noted that once all criminal proceedings related to the property have terminated "the Government's presumptive right to detain the property no longer exists. Any further detention must be justified by a new predicate such as a forfeiture proceeding of perhaps initiation of further criminal charges." - Id pg. 58. No new predicate existed in the case at bar. Camille instructed the police to search for contraband, as a matter of his discretion, the same property after the criminal proceedings had terminated for the same reasons that existed when the proceedings were pending. Judge Dwyer's searcli warrant return ordered, pursuant to $690.55 of the CPL, that the property be temporarily retained by the State Police subject to the Order of this Court (Oneida County) or any other Court in which the offense is triable. This Order says that the State police can't dispose of this property in its temporary custody without a Court Order. The Order further states that the property can be turned over to the District Attorney's office or the United States Attorney's office for forfeiture proceedings when the District Attorney decides the property is no longer needed as evidence. (A- 76,77) Forfeiture of course would be appropriate if the property could be considered contraband. If the property is not forfeitable as contraband and is no longer needed as evidence because the criminal proceeding has terminated then the Court must issuc an order to dispose of the property by returning it upon demand to the rightful owner. If the District Attorney wants to search the property for contraband before returning the property upon demand by the owner the proper procedure would be to ask the Court for an Order to search the property before returning it just like Carville aclmowledged the defense lawyer should have done. (A-56) Under the statutory scheme the status of the property changes once the criminal proceeding has terminated because the whole purpose of securing the property in the first place was in relation to the criminal case that just ended. The diminished expectation of privacy in that property by the property owner when the property is held in connection with the criminal proceeding no longer exists. The state police may have possession of the property but only as a bailee until the Court orders the state police what to do with the property. So, DeProspero7s expectation of privacy in his property that may have contained contraband, not readily apparent without searching the property, was restored. The only way for the Government to intrude on that privacy interest is through a Cow-t Order. See, e.g., People v. Scott, 79 NY2d 474,485-501 .) For example, suppose a search warrant is issued for a vehicle upon probable case that the vehicle may contain contraband. The vehicle is seized and impounded. After the warrant is executed and the vehicle impounded and searched a small packet of cocaine is found and the defendant is charged with the misdemeanor possession of drugs. During the course of the prosecution the Prosecutor learns that there is probable cause to believe there is a secret compartment in the vehicle containing drugs. FIe passes this information to the police who still have the vehicle in their possession. Communications break down and the police never search the vehicle again. The prosecutor assumes that the vehicle was thoroughly searched and no further drugs were found and offers the defendant a plea to a misdemeanor and a fine. After the defendant pleads and pays his fine and the proceeding has terminated he asks the ADA to release his vehicle. The ADA calls the police and tells them to release the vehicle. I-Ie does not seek an Order from the judge who issued the warrant that gave temporary retention of the car to the police and the police release the vehicle and the defendant drives away. While the defendant is driving home the DA asks the police if they searched the secret compartment. The police respond they never got the memo. The ADA then instructs the police to take the warrant used to seize the vehicle in the first place to seize the vehicle again and now search it for a secret compartment. As the defendant pulls up to his driveway the police arrive and seize this vehicle again under the same warrant and search it and find a secret compartment containing drugs. Is this permissible? Even ifthe District Attorney had probable cause he would still need a warrant or Order from the Court to search the property at this stage of the criininal proceedings. To say that the May 4, 2009 search warrant was still valid to search the electronic media would also mean that the same warrant could be used to search the residence to make sure they didn't miss anything when the warrant was executed on May 5,2009. Certainly there's a limit as to how many times a search warrant can be used to search the same property. The warrant lost its efficacy and the DA and state police acted without jurisdiction and in violation of Judge Dwyer's Order (A-77) under CPL 690.55 when Carville instructed the state police to search the property for contraband before returning the property without first seeking a Court Order. This was a warrantless search that does not come under any of the well-delineated exceptions to the warrant requirement. The Fourth Department states that since the defendant provides no support for his novel contention that the authority to search his property pursuant to the May, 2009 warrant terminated at the conclusion of the 2009 prosecution it rejects his contention. However, if there was authoritative precedent right on point the issue wouldn't be novel. It is submitted that the entire argument submitted by DeProspero is supposted by the cases, statutes and constitutions cited above. The Fourth Department next discusses the length of time to conduct the search and never deals with the difference in the status of the expectation of privacy in the area searched from when the criminal proceeding is pending where the expectation is diminished because of the need of law enforcement to possess it for possible use as evidence in the pending case to when the criminal proceeding has terminated and the need by law enforcement has lessened and the expectation of privacy interest of the defendant has been heightened. The length of time to conduct the search is a different issue than whether the search takes place when the criminal proceeding is pending as opposed to whether the criminal proceeding has terminated. The Fourth Department never addressed that issue, and all the cases it cites are cases where the criminal proceeding was still pending. The Fourth Department next states that the police had an obligation to search defendant's property for contraband before returning it to him and cites for a general proposition three cases that are inapplicable to the facts of this case and unsupportive of the terse treatment afforded the issue by the Fourth Department. The Court then states that returning contraband, i.e., child pornography, would be a crime. Of course, what the Court does not address is that the police had to conduct a search of DeProspero's digital camera to find the contraband. It's the searching of the camera that's the issue and not whether the search yields any contraband. See People v. Scott, 79 NY2d 474 (1992). In United States v. Jeffers, 343 U.S. 48,54 (195 1) the Supreme Court held that drugs seized illegally could not be returned because drugs are contraband. Contraband must be an object whose incriminating character is immediately apparent. Coolidge v. New Hampshire, 403 U.S. 443 (1971 .) The police must be in a lawful position to view the contraband. Id. In the case at bar the contraband of child pornography contained in the digital camera was not readily apparent. One could not tell by looking at the camera that it contained contraband any more than the police could tell that the film found in the search in Stanley v. Georgia, 394 U.S. 557, 571-572. (Stewart's concurring opinion, 1969) contained obscene material. Justice Stewart found such a search a bald violation of that basic constitutional principle since this is not a case "where agents in the course of a lawf~~l search came upon contraband, criminal activity or criminal evidence in plain view" at 571. In United States v. Harrell, 530 F3d 1051 (9th Cir.) it was held that an object is contraband per se if its possession without more constitutes a crime. This cannot be said of the digital camera. Se also, United States v. Carey, 172 F3d 1268 (loih Cir. 1999.) In the case cited generally by the Fourth Department, United States v. LaFatch, 565 F2d 8 1 (6th Cir. 1977) the Court stated that the general rule is that seized property other than contraband should be returned to its rightful owner once the criminal proceedings have terminated. No one disputes that. The question is whether the camera comes under the definition of contraband and the cases unanimously say it should not. Even the case cited by the Appellate Division from the First Dept. IQ Matter of Sea Lar Trading Co. v Michael, 94 AD2d 309, 3 15, 3 16 (1 983) states that contraband per se includes such patently illegal items as narcotics, gambling apparatus and paraphernalia to make bootleg alcohol. Such is not the situation in the present case. Finally the Fourth Department rejects DeProspero's argument as to the legality of the search based on DeProspero7s diminished expectation of privacy because the property was seized pursuant to the May, 2009 search warrant and DeProspero's effects were reduced to the custodial control in the law enforcement system and he lacked a legitimate expectation of privacy in that property notwithstanding the passage of time and cites three cases where the issue involved property when the criminal proceeding was pending - unlike the case at bar. It is understandable that a person's expectation of privacy in property seized in connection with a pending criminal prosecution is diminished and law enforcement's interests are greater. However, once the proceedings have terminated interests and reasonable expectations change. Once the proceedings have terminated and the prosecution's presumptive right to the property no longer exists them the degrees of expectation of privacy on behalf ofthe property owner outweigh the state's justification for intruding on the defendant's privacy interests. In People v. Scott, 79 NY2d 474 (1992) this Court held that the Fourth Amendment and Article I 3 12 of the New York State Constitution protects privacy rights of persons and not places. See pp. 485-502. The &&t Court stated that under our state constitution a person's privacy guarantee generally requires probable cause and warrants except in certain narrowly circumscribed situations. It is submitted to this Court that once the criminal proceedings terminated DeProspero's expcctation of privacy in his property was fully restored and that expectation is one that society says is legitimate. The state's intrusion of that privacy interest is unreasonable unless supported by probable cause and a warrant. If probable cause exists but no warrant is sought the search is unreasonable unless one of the well-delineated exceptions to the warrant requirement exists. No such exception exists in the case at bar thus rendering the search unreasonable under both constitutions. The fact that the property may have been in the possession of the police does not diminish DeProspero's expectation of privacy in the items located in police possession once the proceedings have terminated. The fact that the property happens to be physically in the possession of the police has nothing to do with DeProspero's privacy interest. Society would deem DeProspero's expectation of privacy in his computer and camera as legitimate as his expectation ofprivacy in his home and the state's interest in holding the property gives the state no greater right to intrude on that privacy interest whether the place or area of that interest is his land or his electronic media. CONCLUSION The decision of the Fourth Department should be reversed and the evidence suppressed.