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 … (Matter of Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., 829 F3d 197, 214 [2d Cir 2016] [internal citations omitted], rehearing denied ___ F3d ___, 2017 WL 362765 [2d Cir Jan. 24, 2017]). Notably, the Second Circuit is not alone in refusing to equate SCA warrants with subpoenas. The Eighth Circuit has also observed that, "[w]hile warrants for electronic data are often served like subpoenas (via fax), Congress called them warrants and . . . Congress intended them to be treated as warrants" (Bach, 310 F3d at 1067 n 1). Significantly, under our own jurisprudence, we must "look[] to the true nature of [a] proceeding and to the relief sought in order" to determine whether the proceeding is a special civil proceeding giving rise to an appealable order or, instead, a criminal proceeding for which an appeal must be statutorily authorized (Matter of Abrams, 62 NY2d at 191). Conducting that analysis here, we conclude that an SCA warrant — and the relief sought in a challenge to such a warrant — arises in a criminal, not a civil, proceeding. Unlike a subpoena, which finds broad use in civil matters, an SCA warrant is not "civil by nature" (id. at 192). As with a traditional search warrant, an SCA warrant may be issued only to a governmental entity, upon a showing of probable cause, and pursuant to statutory warrant procedures (see 18 USC § 2703 [a], [b] [1] [A], [c] [1] [A]). In addition, while a subpoena does not commence a criminal proceeding because it is not issued by a court, the issuance of a warrant by the court does just that (see CPL 1.20 [18]; Cayuga Indian Nation of N.Y. v Gould, 14 NY3d 614, 634 [2010]; Matter of B. T. Prods. v Barr, 54 AD2d 315, 319 [4th Dept 1976], affd 44 NY2d 226 [1978])[FN4]. While the dissent claims that this "misses the point," it [*7]is, in fact, the crux of the matter. A motion to quash a subpoena that was not issued by the court may commence a separate civil proceeding; there is no authority or, indeed, logic, upon which we may conclude that a motion to quash a warrant that actually commenced a criminal proceeding, gives rise to yet another proceeding — this time civil in nature — that can somehow be separated from the warrant itself. Additionally, because SCA warrants are governed by the same substantive and procedural laws as traditional search warrants (see generally CPL art 690; CPL art 700; People v Tambe, 71 NY2d 492, 500 [1988]), there is simply no basis in law for distinguishing such warrants from their traditional counterparts for jurisdictional purposes. Moreover, a challenge to a subpoena, even where related to a criminal [*8]investigation, is "limited in scope, challenging only the validity of the subpoena or the jurisdiction of the issuing authority," and "substantial delay in the proceedings is unlikely" to result from permitting appeals from orders deciding such motions (Matter of Santangello v People, 38 NY2d 536, 539 [1976]). By contrast, the issuance of a warrant potentially has significant https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 8/44