Opinion
June 17, 1999
Wendy Rodes for defendant.
Richard A. Brown, District Attorney of Queens County (David Saffir of counsel), for plaintiff.
Defendant is charged by indictment with the crimes of Criminal Possession of Stolen Property in the Third Degree (PL § 165.50); Criminal possession of Stolen Property in the Fourth Degree (PL S 165.45 [5]) and Criminal Mischief in the Fourth Degree (PL § 145.00); and, Unauthorized Use of a Vehicle in the Third Degree (PL S 165.05 [1]). It is alleged that on September 24, 1998, the defendant was in possession of a 1991 Toyota bearing New Jersey license number KM760J, stolen September 23, 1998, in the rear of 91-23 109th Street, Queens, New York. Specifically, that defendant had constructive possession of the garaged vehicle which was seized upon the execution of search warrant # 744-98.
On April 15, 1999, a hearing "to controvert the search warrant" and suppress statements was held pursuant to defendant's request for a Mapp/Dunaway/Huntley hearing.
That motion was held and decided on April 15, 1999.
At the conclusion of the hearing, defendant moved for a Frye hearing ( see, Frye v. United States, 293 F 1013 (D.C. Cir., 1923]), to determine the reliability of the LoJack which was the basis for the search warrant and the supporting affidavit of Police Office Thomas J. Tower, the only witness who testified at the hearing.
On September 24, 1998 at 10:15 AM, Police Officer Thomas Tower of the Queens Auto Larceny Unit picked up a "LoJack" tracking signal. Police Officer Tower had participated in a four-day course dealing with the operation of the "LoJack" tracking device which was in his Radio Motor patrol car (RMP). After receiving the signal, the officer was able to ascertain many details about the stolen car he was looking for including year, make, model and color. That signal is activated only when a car is reported stolen and the "hit" enabled Police Officer Tower to locate the exact whereabouts of the car by reading the strength of the signal emitted. This brought police Officer Tower to the exact location from where the signal was emitted, which led the police down a common driveway into the backyard of 97-23 109th Street in Queens County. There is no Payton problem because defendant cannot be said to have a legitimate expectation of privacy over a joint alleyway ( People v. Kozlowski, 69 N.Y.2d 761; People v. Cunningham, 170 A.D.2d 524; People v. Maltese, 149 A.D.2d 626). Upon entry into the backyard, the police were able to observe, through a broken garage door missing a one foot square panel, a red 1991 Toyota with New Jersey registration from which the LoJack signal was emitted and which matched the description of the stolen car he was searching for ( see, Matter of Lahey v. Kelly, 71 N.Y.2d 135). Simply peering through the opening in a garage door does not constitute a search, whereas a physical intrusion into an area otherwise hidden might well be an impermissible intrusion ( United States v. Place, 462 U.S. 696; People v. Sullivan, 29 N.Y.2d 69; People v. Alberti, 111 A.D.2d 860). The police officer was entitled to view what was exposed to public view ( James v. United States, 418 F.2d 1150; People v. Sciacca, 64 N.Y.2d 677).
After making a physical check and confirming the accuracy of the "LoJack" signal the officer obtained a search warrant which resulted in the seizure of the vehicle ( People v. Arnau, 58 N.Y.2d 27; People v. Armino, 104 A.D.2d 995; People v. Teribury, 91 A.D.2d 815, 816). The likelihood that the stolen car would be recovered was sufficient to justify the issuance of the warrant ( People v. Teribury, 91 A.D.2d 815).
A Frye hearing is held solely to determine the admissibility of scientific evidence at the trial of a case ( United States v. Williams, 583 F.2d 1194, 1198; People v. Wesley, 83 N.Y.2d 417; People v. Middleton, 54 N.Y.2d 42).
In the instant case, a Frye hearing is not appropriate because any testimony dealing with the question of defendant's possession of this stolen automobile is not dependent on the introduction of any scientific testimony. The issue as to the use of "LoJack" is entirely separate from the issue of defendant's guilt.
Giannelli, The Admissibility of Novel Scientific Evidence, 80 Colum L Rev 1197 (October, 1980).
The vehicle's owner and a private corporation contracted to have the "LoJack" system installed for the purpose of recovery of the owner's car. The installation of such a monitor, as long as it was installed simply to enable the police to locate a car, without more, would not involve defendant's Sixth Amendment rights ( see, United States v. Knotts, 460 U.S. 276, 484-5).
The "LoJack" system operates by transmitting a radio signal from the stolen car which is "read" by a receiver, paid and owned by the LoJack Corporation, installed in the police car. The receiver tracks the path of the radio signal emitted from its source installed in the owner's car.
The issue as to the nature of the scientific evidence which was involved never arose. The quantum of proof necessary to obtain the search warrant is probable cause based upon the credibility of the affiant and not the admissibility of the "LoJack" alarm ( see, People v. Hanlon, 36 N.Y.2d 549, 559).
The situation is not dissimilar from one in which the affiant relies on an informant.
The affiant simply sets forth the reasons why he relies on the credibility of the informant. The court then relies on the affiant's assertions. It is only when the affiant knowingly relied on an unreliable informant that the warrant is subject to attack.
In any case, the reliability of the "LoJack" system is clearly established. The question as to its infallibility is not relevant ( United States v. Williams, 583 F.2d 1194, 1198). The question is simply whether the system has been found to be generally acceptable ( see, People v. Yates, 168 Misc.2d 101). Here, the system is clearly generally accepted since "LoJack" employs nothing more sophisticated than radio communications emitted from a source to a receiver, which in this case was located in a police car ( see, People v. Persuad, 244 A.D.2d 577, lv denied 91 N.Y.2d 976; People v. Roraback, 242 A.D.2d 400, lv denied 91 N.Y.2d 879; People v. DiNonno, 171 Misc.2d 335 [App Term 2d Dept, 1997]).
"[I]f the evidence does not involve new methods of proof or new scientific principles, then the Frye inquiry is not necessary" ( State v. Hayden, 950 P.2d 1024 [Court of Appeals of Washington, 1998]). While the probable cause was based on a radio transmission, the issuance of the warrant and the hearing held herein clearly demonstrated that the police actions were based on the requisite knowledge of the police officer affiant ( People v. Rosario, 78 N.Y.2d 583, cert denied 502 U.S. 1109; People v. Weddington, 192 A.D.2d 750, after remand 199 A.D.2d 687, lv denied 83 N.Y.2d 859).
At the hearing, the People were obligated to demonstrate that the issuing Magistrate had before her facts and circumstances presented under oath which provided probable cause ( People v. Bartolomeo, 53 N.Y.2d 225). The factors to be considered include the source of information, the manner acquired, the expertise of the officer, the extent to which the information was verified, and the nature of the crime ( People v. Hanlon, 36 N.Y.2d 549). This is because under the Fourth Amendment to the Federal Constitution, search warrants may be issued only upon probable cause, the determination of which rests on the particular facts and circumstances presented to the Magistrate at the time of the warrant application (CPL 690.40; People v. Nievas, 36 N.Y.2d 396).
The reason why the introduction at trial of scientific evidence is governed by the Frye threshold of reliability, is that jurors may give undue weight to scientific testimony. However, in the instant case, the "LoJack" testimony deals solely with the recovery of the subject vehicle and not with any proof as to defendant's criminal responsibility for its theft ( United States v. Boller, 519 F.2d 463). The "LoJack" was installed solely for the purpose of warrantless monitoring and revealed nothing in this case beyond that which could have been obtained visually as long as there is no trespass ( see, People v. Karo, 468 U.S. 705; People v. Jackson, 65 N.Y.2d 265; People v. Olsen, 51 N.Y.2d 97; People v. Dunn, 155 A.D.2d 75).
Ayres and Levitt, Measuring Positive Externalities From Unobservable Victim Precaution: An Empirical Analysis of LoJack, The Quarterly Journal of Economics, February 1998.
Frye addresses merely the admissibility of evidence and not its weight, which is for the jury. The test the Court is obliged to consider is merely whether the proffered testimony is generally accepted as reliable ( People v. Hughes, 59 N.Y.2d 523, later appealed 72 N.Y.2d 1035, cert denied 492 U.S. 908). Whether a Frye hearing is required is a matter directed to the Court's discretion ( People v. Cronin, 60 N.Y.2d 430, 433; Delong v. County of Erie, 60 N.Y.2d 296, 307).
Accordingly, defendant's oral motion for a Frye hearing is denied.