Court of Appeals February Session: Arguments of Interest for February 7, 2017

The Court of Appeals’ February Session begins on Tuesday, February 7th with three cases on the docket (the Court of Appeals’ case summaries can be found here). The Court will address the following issues: (1) whether an order denying a motion to quash a bulk search warrant issued under the Stored Communications Act is appealable; (2) whether a criminal defendant’s response that he “probably” should have an attorney when responding to police questioning was an unequivocal request for counsel and required suppression of his confession to murder obtained by the police afterwards; and (3) whether a criminal defendant may be convicted for possession of a controlled substance solely upon the testimony of co-conspirators that he possessed cocaine, even though the police never recovered any cocaine from the defendant and none was ever tested or introduced against him at trial.

No. 16     Matter of 381 Search Warrants Directed to Facebook, Inc. (New York County District Attorney’s Office)

Under the federal Stored Communications Act, the State may seek to compel an internet service provider or company storing electronic communications to produce customer information or communications by requesting a warrant for the production of the information.  In this closely watched case, the New York County District Attorney’s Office, taking advantage of that investigation tool, obtained a bulk search warrant under the SCA directing Facebook to produce the stored electronic communications of 381 New York City police officers and firefighters suspected to be involved in a fraudulent scheme to obtain Social Security disability benefits by falsely claiming that they suffered from mental disabilities resulting from responding to the 9/11 attacks.  In support of the warrant, the DA offered an affidavit claiming that the suspects’ Facebook accounts could contain information or communications that contradicted their claims of disability.  In issuing the warrant, Supreme Court also ordered Facebook not to notify the account owners of the search, pursuant to 18 USC § 2703(b) of the SCA, to prevent interference with the investigation.

Facebook moved to quash the bulk search warrant, but Supreme Court denied the motion, holding that the warrant was supported by probable cause and that the DA had followed the required procedures to obtain the warrant under the SCA.  The Court also held that Facebook lack standing to challenge the warrant because it could not stand in the shoes of its account owners, who were the only ones who held any reasonable expectation of privacy in the communications that were sought in the warrant.  Facebook appealed the denial of its motion to quash, but also complied with the warrant and turned over the data.

62 of the targeted Facebook users were ultimately indicted, and the Court thereafter allowed Facebook to notify its users of the search warrant.  The DA, however, refused to disclose the affidavit upon which the bulk search warrant was obtained.  Facebook moved to compel disclosure of the affidavit, but the Court denied the motion.

On appeal, Facebook challenged the constitutionality of the SCA bulk search warrant, arguing that it violated the Fourth Amendment because it lacked sufficient particularity, and that the gag order preventing Facebook from notifying its users of the execution of the search warrant violated the First Amendment.  The Appellate Division, First Department, however, dismissed Facebook’s appeals, holding that “Facebook cannot litigate the constitutionality of the warrant pre-enforcement on its customers’ behalf” because the orders were not appealable.  Because the warrant was issued in a criminal proceeding, the Court held, the sole means to challenge it was in a pre-trial motion to suppress the evidence obtained, and then raising the issue on a direct appeal from a conviction.  The Court also noted that the Criminal Procedure Law does not provide for a motion to quash a search warrant or any means to appeal the denial of such a motion.

Before the Court of Appeals, Facebook argues that a bulk search warrant issued under the SCA is more like a civil subpoena, which may be quashed before they are executed.  Facebook also points out that the SCA contains a specific provision allowing for a motion to quash, and that the denial of such a motion should be an appealable order.

The Appellate Division, First Department’s decision can be found here.