New York Supreme Court Appellate Division holds search of phone to look for incriminating photographs improper

The Supreme Court of New York, Appellate Division held that it was error to deny a Motion to Suppress photographs of a gun which were retrieved during the search of his cell phone pursuant to a warrant issued by City Court.

The Court held that there was insufficient evidence to establish probable cause that there was a reasonable belief that there would be incriminating evidence found in the phone. The Supreme Court criticized the affidavit supporting the warrant, stating that “common sense alone does not establish probable cause to search a person’s cell phone.” The State Supreme Court reiterated that Carpenter provides a significant privacy interest that an individual has in the information stored in his or her cell phone.

Ultimately, given the weight of other evidence against this defendant, this error was found to be harmless.

The case is People v Jemmott, 2018 N.Y. App. Div. LEXIS 5576 (August 2)

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