People v Goldman
NY Slip Op 05977 [35 NY3d 582]
Decided on October 22, 2020
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Issue:
Defendant’s Entitlement to Discovery in Ex Parte Applications
Whether the defense is entitled to discovery of supporting affidavits in a search warrant where the prosecution, prior to the filing of any charges, seeks an ex parte application for a defendant’s saliva sample pursuant to CPL article 690 for the seizure of corporeal evidence.
Holding:
No Mandatory Discovery In Ex Parte Search Warrant Applications
The Court held that the Abe A. safeguards do not create a mandatory discovery procedure affording defendant access to the supporting affidavit demonstrating probable cause set forth in CPL article 690 as a matter of constitutional law, and that the Government did not violate any constitutional rights. Defendant was not entitled to see supporting affidavits of the warrant.
Facts:
Reginald Goldman was a member of Young Uptown Boys, a subset of a larger Bronx crew, Young Gunnaz. Defendant and three other individuals drove into a rival crew’s territory where defendant shot and killed the 16-year-old victim, who happened to be standing outside a residential building. The shooting was captured on surveillance video, and depicted the men inside a gold Nissan Maxima.
Two days after the homicide, police located the driver of the vehicle who became a cooperating witness and identified defendant as the shooter. Police seized the vehicle and processed it for DNA evidence. DNA profiles were generated from the passenger seat door handle and armrest. Police then sought a search warrant to obtain a saliva sample for DNA testing from defendant, who was held at Rikers on unrelated charges, with a supporting affidavit that alleged that, based on surveillance footage and information provided by witnesses, the defendant was the shooter who killed the 16-year-old victim.
The People notified defendant’s counsel, who argued that based on Abe A., where there is no exigency in the seizure of the DNA evidence, due process required that a suspect be given notice and an opportunity to challenge the search warrant “before his constitutional right to be let alone may be infringed.” Defense counsel asserted that the discovery procedure under (former) CPL § 240.40 should apply, and that he should be permitted to review the warrant application. Counsel made no argument to either the safety, reliability, or physical discomfort of the method to be used to seize saliva through a buccal swab or whether the swab would “put into the possession of law enforcement authorities a sample from which a wealth of additional, highly personal information could potentially be obtained” (Birchfield v North Dakota, 579 US 136 S Ct 2160, 2177 [2016]). Defense counsel was excluded from the hearing and not allowed discovery under the discovery statute CPL § 240.40 because no accusatory instrument had been filed.
The court signed the search warrant, concluding that there was “probable cause and more” to believe that defendant committed the crime and was the source of the DNA profile in the vehicle. The Office of Chief Medical Examiner analyzed defendant’s DNA and found the profiles to be the same. Defendant was charged with two counts of murder in the second degree, manslaughter in the first degree, and criminal possession of a weapon in the second degree.
Prior to trial, defendant moved to suppress the DNA evidence, arguing that the court refused to hear from his attorney on the issue of probable cause. The court denied the suppression motion, adhering to its conclusion that probable cause had been established to support the issuance of the warrant. At trial, defendant was convicted by jury of manslaughter in the first degree. The Appellate Division reversed, granted the motion to suppress the DNA evidence, and remanded for a new trial. The Court held that the lower court erred in precluding defense counsel from reviewing the search warrant application and in denying counsel the opportunity to be heard on the issue of probable cause.
Analysis:
Discovery Statute Does Not Apply
The Court of Appeals held that the discovery statute CPL § 240.40 did not apply in this case, as there was no accusatory instrument filed. The Court viewed this as a key distinction between an application for a search warrant against an uncharged individual and the requirements of the discovery statute CPL 240.40 which permits the taking of bodily evidence from someone charged with a crime, upon motion on notice. The warrant application was ex parte and defendant was therefore not entitled to see the warrant application.
Abe A. Safeguards Prevent Unlawful Seizure of Bodily Material
In Matter of Abe A. (56 NY2d 288 [1982]), the Court sanctioned the use of a search warrant pursuant to CPL article 690 for the seizure of corporeal evidence that requires bodily intrusion. The Court set a three-prong standard requiring 1) probable cause that the individual committed the crime, 2) a “clear indication” that material and relevant evidence will be found, and 3) that the means of obtaining the evidence is “safe and reliable.” In considering any unwarranted intrusion, a court “must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it…against concern for the suspect’s constitutional right to be free from bodily intrusion…” (id. at 291).
The Court held that probable cause is reviewed by a neutral magistrate without the need for an adversarial hearing. Therefore, Abe A. should not be interpreted as creating a mandatory discovery procedure affording defendant access to the supporting affidavit demonstrating the requisite probable cause set forth in CPL article 690 as a matter of constitutional law (see People v Castillo, 80 NY2d 578, 584 [1992]; People v Liberatore, 79 NY2d 208, 216 [1992]). Courts may use their discretion to grant discovery in an Abe A. application, but “access to that information must first depend on the magnitude of the bodily intrusion sought by the warrant.”
The Court further opined that Abe A. only requires notice and opportunity to be heard before a defendant is taken into custody, and does not apply before the actual search and seizure of bodily evidence from a defendant. As such, the Court holds that the requirement is inapplicable when, as here, the defendant was already in custody.
Magnitude of Bodily Intrusion Matters
Because probable cause was established here, and because “the utility of DNA identification in the criminal justice system is already undisputed,” and defendant could not mount a credible claim regarding material evidence, the issue narrows to the crucial factor of the magnitude of the intrusive procedure sought.
In Maryland v King (569 US 435 [2013]), the US Supreme Court addressed whether it was unreasonable, in the absence of exigency, to permit a warrantless buccal swab taken by law enforcement as part of a routine booking procedure on defendant’s arrest for a violent felony. In that case, the Court characterized the swabbing procedure as a “brief and…minimal intrusion” that was “quick and painless” (id. at 463). Where the defendant had been validly arrested based on probable cause, his “expectations of privacy were not offended by the minor intrusion of a brief swab of the checks.” (id. at 465). King lays to rest any constitutional concern that the buccal swab would necessitate an Abe A. inquiry as to the procedure’s safety, reliability, and absence of physical discomfort.
Because the bodily intrusion sought in this case was minimal, the Court of Appeals held that the defendant was not entitled to a hearing challenging the search warrant. The constitutional role of the neutral magistrate to determine that the warrant set forth probable cause required no supplemental adversarial process, and defendant’s claim that the failure to provide him discovery of the extant probable cause was without constitutional basis. Defendant received notice and an opportunity to be heard on the nature of the bodily intrusion; therefore the order of the Appellate Division was reversed and defendant’s motion to suppress evidence was denied.