Yona Weissman (Gabriella Bass)
In an early application of a new U.S. Supreme Court precedent on cellphone records and the Fourth Amendment, a judge in Brooklyn has suppressed evidence that allegedly would have shown that a defendant photographed a child sex crime victim during a trial.
Criminal Court Judge Michael Gerstein’s (See Profile) suppression decision stemmed from allegations that a Satmar spiritual counselor, Nechemia Weberman, had molested a girl for three years. Weberman was convicted of all 59 counts against him and is serving a 50-year prison term.
The 2012 trial was a polarizing event, with some members of the Hasidic community strongly supporting Weberman and sharply criticizing the victim.
As the trial began, Supreme Court Justice John Ingram admonished the audience against using a cellphone in the courtroom. Additionally, court rules prohibit the taking of photographs inside the courthouse.
Yona Weissman, who attended at least part of the trial, was charged with two counts of second-degree criminal contempt after a court officer searched his cellphone and found a photograph of the victim.
Gerstein said in a decision Tuesday, that the search violated the Supreme Court’s recent holding in Riley v. California, 134 S.Ct. 999 (2014), as well as People v. DeBour, 40 NY2d 210 (1976), New York’s seminal search and seizure ruling.
In People v. Weissman, 2012KN002159, a court officer saw the defendant with a cellphone in his hand during the trial and directed him to put it away. Weissman did so.
The following day, another court officer observed Weissman in the courthouse hallway, and suspected Weissman had taken his picture. That officer directed Weissman to display all photographs on the phone.
While there were no pictures of the court officer, there was a picture of the sex abuse victim on the witness stand, a picture that officials later learned was posted to Twitter. Weissman was subsequently charged with contempt.
In a 26-page decision parsing the recent language of Riley and applying settled state DeBour principles on police-citizen encounters, Gerstein suppressed any data recovered from the cellphone.
The judge said the officer was authorized to investigate his suspicions that Weissman had used a camera in the courthouse and to engage in a common law inquiry under DeBour.
“[The] officer properly and legally approached defendant on the founded suspicion that he was in violation of a court rule prohibiting photography in a courthouse,” Gerstein wrote. “The courthouse is an environment where person has diminished expectations of privacy.”
But the judge said that while court officers had a right to seize Weissman’s phone based on their suspicions, they did not have the right, under Riley, to force him to display the contents. In Riley, the Supreme Court unanimously held that the warrantless search of cellphone contents violates the Fourth Amendment protection against unreasonable searches.
Here, Gerstein said, Weissman did not consent to displaying the pictures but was “compelled” to do so by a court officer.
“Once [the officer] determined that the initial pictures he saw on defendant’s phone were not of him, did not appear to have been taken in the courthouse or any other location prohibited by rule, and did not exhibit any evidence of wrongdoing, Riley prohibits him from proceeding further as he in fact did, by scrolling through additional pictures on defendant’s phone without having first obtained a warrant,” Gerstein wrote.
The judge rejected the officer’s explanation that he wanted to make sure that Weissman had not altered the order of the photographs.
“While it may be argued that an exception might be created if there was a specific reason articulated to believe that defendant was attempting to delete or jumble cell phone data before the phone could be examined, there was no such testimony … and this court need not rule on such a hypothetical situation,” Gerstein said. “Riley explicitly rejects the argument that a warrantless search of cell phone data may be conducted based solely on the mere possibility that the data may be deleted prior to the time a warrant may be obtained.”
Additionally, Gerstein turned aside the prosecution’s argument under the plain view doctrine.
“While it might be arguable that the plain view doctrine would have been applicable if the offending photo was visible as soon as [the officer] looked at defendant’s phone, or perhaps even if it was the first picture shown … here he required defendant to scroll through several pictures, none of which were of him or the courthouse, before discovering the photo believed to be that of the complainant in the Weberman trial,” Gerstein wrote.
Israel Fried of Fried & Rokosz in Manhattan represents Weissman. Brooklyn Assistant District Attorneys Joseph Benedetto and Sholom Twersky argued for the prosecution.
Fried said he will seek dismissal of the contempt charges since the only evidence in the case has been suppressed.
He said the decision is an important application of Riley, and provides a crucial shield against the forced and unwarranted disclosure of information contained on a cell phone. Fried noted that people maintain all sorts of sensitive information and data on their cell phones that should not be subject to government observation without a warrant.
“Officers do not have it in their purview to just go into someone’s cellphone and look at whatever they want,” Fried said. “It is clear to everybody that they overstepped their grounds and jumped the gun.”
There was no immediate reaction from the district attorney’s office.