to show the pictures, and the officer’s testimony revealed that his tone towards
defendant was not a request, but a demand which a reasonable person, free of
any wrongdoing, would not have felt free to refuse.
Crimes — Unlawful Search and Seizure — Warrantless Search of
Cell Phone
2. In a prosecution for criminal contempt in the second degree (Penal Law
§ 215.50) for use of a cell phone in the courtroom during a rape trial to take
pictures, defendant’s motion to suppress all photographs and other data
recovered upon a warrantless search of his cell phone was granted. Pursuant
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172 46 MISCELLANEOUS REPORTS, 3d SERIES
to Riley v California (573 US —, 134 S Ct 2473 [2014]), no search may be
conducted of an arrestee’s cell phone incident to a lawful arrest without first
obtaining a search warrant. Here, the seizure of defendant’s cell phone was
proper given that the court officer was investigating a possible breach of a
court rule which he was required to enforce—specifically the rules against
photography in the courthouse (see 22 NYCRR 29.1)—based upon seeing de-
fendant holding his cell phone near his chest in such a way that he believed
defendant was photographing him. However, once the officer determined that
the initial pictures he saw on defendant’s phone were not of him, and
contained no evidence of criminality or of any violation of court rules, Riley
prohibited him from proceeding further in scrolling through additional
pictures on defendant’s phone, whereupon he observed a photograph of a
young woman testifying from the witness stand, without having first obtained
a warrant.
Crimes — Unlawful Search and Seizure — Incident to Arrest —
Probable Cause
3. In a prosecution for criminal contempt in the second degree (Penal Law