03/02/2020 In re 381 Search Warrants Directed to Facebook, Inc. :: 2017 :: New York Court of Appeals Decisions :: New York Case Law :: New York Law :: US … term "warrants" poorly characterized the type of order that should be required to seize electronic communications. As one of the leading proponents of what became the relevant sentence of article I, § 12 noted, "The proposal of Senator Dunnigan uses the words, 'ex parte orders.' I believe such terminology is better, I think it fits more effectively the work of district attorneys; I think a warrant implies some kind of service on a person, and to use the words 'ex parte orders' makes it clear that it can be obtained from a court and it can be kept secret" (Revised Record at 471). Although Section 12 as ultimately drafted requires "ex parte orders or warrants" as the seemingly inadvertent result of a broader, and rushed, compromise between the doughty Senator Dunnigan and his chief Republican adversary, even that final language supports the conclusion that the delegates, too, considered the 1938 precursor of the SCA warrant to be a hybrid. Footnote 20: The majority asserts that "SCA warrants are governed by the same substantive and procedural laws as traditional search warrants", but cites CPL 690 and 700, and People v Tambe (71 NY2d 492 [1988]) — all of which concern wiretapping warrants, not SCA warrants. Footnote 21: The majority's contention that "SCA warrants are governed by the same substantive and procedural laws as traditional search warrants" (majority op at __) conflates the manner of their issuance with the manner of their execution and ignores the fact at the heart of this case: SCA warrants differ from their traditional counterparts in significant part because Congress declared their recipients could move to quash or modify the orders. Footnote 22: See e.g., Matter of Di Brizzi (303 NY 206 [1953] [individual could appeal the denial of a motion to quash a subpoena ordering he testify before the governor's crime commission, a body without the power to charge or try defendants]); Matter of Hynes v Karassik (47 NY2d 659 [1979] [respondent previously acquitted in a criminal trial could appeal an order unsealing the records of that case]); Matter of Codey (82 NY2d 521 [1993] [reporter subject to a State of New Jersey subpoena to reveal confidential sources, who presence was demanded by New Jersey pursuant to CPL 640.10 (2), could appeal the CPL 640 determination]); People v Santangello (38 NY2d 536 [1976] [petitioner who had allegedly participated in the bribery of police officers could not appeal the denial of an order directing the prosecutor to admit the petitioner was the subject of electronic surveillance]); Matter of Alphonso C. (38 NY2d 923 1976 [1976] [respondent who owned the car used in an attempted homicide could not appeal an order directing him to appear in a police line-up; separate appellant suspected of grand larceny could not appeal an order https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 42/44