Factual Background:  More than a year after a drive-by shooting for which no one had been charged, the prosecution sought a warrant for Reginald Goldman’s DNA after the driver of the car identified Mr. Goldman as the shooter.  At the time, Mr. Goldman was in custody on unrelated charges, and the prosecution gave Mr. Goldman’s counsel on that case notice of the upcoming search warrant application.  Counsel appeared in court, but was denied the opportunity to be heard on the merits of the application; he was heard only on his right to participate in the actual hearing.  The court granted the search warrant and Mr. Goldman’s DNA was identified as a contributor to a mixture found in the car.  At trial, the court allowed the People to introduce a music video found on YouTube called “Mobbin’ Out,” in which Mr. Goldman appears to rap about drive-by shootings, his crew, money, etc.  The video was authenticated solely by the testimony of a detective and a cooperating witness that the music video being shown to the jury was the same as the video they had watched on YouTube.  

The First Department reversed the conviction, holding that denying Mr. Goldman’s counsel the opportunity to be heard on the DNA search warrant violated due process and that the music video had not been properly authenticated. 

Issues Before the Court:  (1) Whether Mr. Goldman was denied his right to due process as an unindicted suspect when his attorney was given notice of the People’s intent to seek a warrant for his DNA but denied the opportunity to be heard? (2) Whether a music video found on YouTube was authenticated based on testimony from two individuals who were not present during the filming or editing of the video, but confirmed that the video shown to the jury was the same as the video they had watched online. 

Held:  (1) Mr. Goldman was not denied his right to due process because he was given the opportunity to be heard on the nature of the search itself and had no constitutional right to be heard on the underlying basis for issuance of the warrant; and (2) the music video was sufficiently authenticated by circumstantial evidence.

CAL Observes:

In a 5-2 decision, the majority muddled, if not entirely ended, the rule established in Matter of Abe A., 56 N.Y.2d 288 (1982).  In Abe A., the Court held that, where there is no exigency (as is the case for most bodily evidence), “it is an elementary tenet of due process” that an unindicted suspect receive notice and an opportunity to be heard before the warrant issues.  As to the substantive constitutional standard, the People must establish “(1) probable cause to believe the suspect has committed the crime, (2) a ‘clear indication’ that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable.”

While declining to state that it was overruling Abe A. in the context of buccal swabs for DNA, the Court effectively did so.  Without much explanation, the Court held that a suspect has no right to challenge the probable cause underlying the warrant, reframing it as a request for “discovery,” instead of a due process obligation.  As to the second and third prongs of Abe A., the Court found that subsequent SCOTUS law “lays to rest any constitutional concern” about the safety and reliability of the DNA buccal swab procedure and shows that the “utility” of DNA evidence has been so established that “defendant could not mount a credible claim” to the contrary.  Following this decision, it is difficult to envision a scenario in which a defendant could challenge a buccal swab, and it seems to be only a matter of time before the Court (or legislature) adopts the prosecution’s argument that no notice is required under these circumstances.  For more invasive searches, the Court acknowledged that an adversarial hearing as to the nature and utility of the procedure remains required for due process, but, here too, eliminated the ability to challenge the underlying probable cause pre-intrusion.

Judges Rivera and Wilson dissented, calling out the majority for ignoring the plain text of Abe A. and its reasoning because it “does not support the majority’s intended outcome.”  The dissenters explained that Abe A. had implicitly rejected the majority’s focus on the invasiveness of the particular bodily intrusion and accused the majority of minimizing the importance of collecting DNA, which contains “a blueprint of [people’s] most intimate details.”  

The question of authentication created a more fractured court.  Departing from its recent reiteration in People v. Price, 29 N.Y.3d 472 (2017), that traditional authentication rules can be applied to evidence found on social media, the majority held that the music video was authenticated by circumstantial evidence in the absence of direct evidence that the video was accurate and unaltered.  Second-hand testimony from the cooperator about the timing of filming and the video’s upload online and the fact tthat Mr. Goldman and others wore similar clothes in the music video and in surveillance footage from the night of the shooting sufficed.  The Court also emphasized that the video was offered only for “motive” not “its truth.”  Judge Fahey concurred in the result; while finding that the video was not authenticated under Price, he thought that the error was harmless.  

Judges Rivera and Wilson continued their dissent, noting that the authentication evidence found lacking in Price was precisely the same as the evidence proffered here:  that someone with no knowledge of the accuracy of the underlying media confirmed that the exhibit shown to the jury matched what they had watched online.  They criticized the majority’s reference to the use of the video to establish motive, which they explained is irrelevant to the threshold question of the video’s accuracy.  Judge Rivera also teed up the question of whether the prejudice of introducing the rap lyrics outweighed any probative value, notwithstanding authentication, a question the Court has not yet tackled.