Opinion
Indictment No. 62/2020
05-10-2022
The People of the State of New York, Plaintiff, v. Joshua Henderson, Defendant.
For the defendant: Murray E. Singer, Esq. For the People: Melinda Katz, District Attorney, Queens County (Debra Lynn Pomodore, Esq. & Jacqueline Rizk, Esq., of Counsels)
For the defendant: Murray E. Singer, Esq.
For the People: Melinda Katz, District Attorney, Queens County (Debra Lynn Pomodore, Esq. & Jacqueline Rizk, Esq., of Counsels)
USHIR PANDIT-DURANT, J.S.C.
Defendant JOSHUA HENDERSON is charged by a twenty-seven-count indictment with Predatory Sexual Assault (PL § 130.95[1][b]), Rape in the First Degree (PL § 130.35[1]), three counts of Burglary in the First Degree (PL § 140.30[2], [3], [4]), and other related charges, stemming from allegations that between August 6, 2019, and September 18, 2019, defendant engaged in a pattern of burglaries in Queens County.
By omnibus motion dated May 3, 2021, defendant moves, pursuant to Carpenter v. United States, 138 S.Ct. 2206 (2018), to suppress GPS data subpoenaed by the prosecution from I.C. Bailbonds. Defendant alleges that obtaining the GPS data maintained by the bail bond company, pursuant to an electronic monitoring agreement with defendant, constitutes a search that required a warrant under the state and federal constitutions because defendant maintained a reasonable expectation of privacy in the data.
Defendant also filed affirmations in reply on July 7, 2021, and March 10, 2022, after the People filed their responses.
The People, by papers dated June 22, 2021, and February 23, 2022, argue that defendant does not have a reasonable expectation of privacy in the data that he voluntarily turned over to a third party. Thus, the People conclude that there was no "search" that implicates the Fourth Amendment. For the reasons stated below, defendant's motion is DENIED.
The Court had initially granted a hearing on, the issue, but the parties agreed, by letter dated November 8, 2021, that there were no factual issues to resolve and that the only issue was the legal effects of the GPS Agreement and the use of subpoena power.
On November 16, 2018, defendant, Joshua Henderson, was arraigned on felony charges of second-degree burglary and fourth-degree grand larceny (NY County Docket Number 2018NY044991). , In December 2018, I.C. Bailbonds posted a $100,000 bond on behalf of defendant. As an extension to the bail bond contract, on December 29, 2018, defendant executed a written agreement, the Global Positioning System Monitoring Agreement (GPS Agreement). Defendant agreed and understood that, among other conditions, he would be required to wear a non-removable ankle bracelet for twenty-four hours each day, for seven days a week. Defendant was informed that he may refuse to wear the device, which would result in him being placed back into custody. Crucially, the GPS Agreement contained the following language, "I understand that my location will be monitored by this Device and if necessary and/or required by law, may be shared with other law enforcement agencies" (December 2018, GPS Agreement [People's Exhibit 4]).
Defendant did not provide any factual allegations surrounding his Manhattan or Queens arrests, nor did he explain his bail conditions with respect to the New York County case. Thus, the Court's factual recitation stems from the People's papers.
Defendant has since been charged by indictment with four counts of second-degree burglary, first-degree identity theft, six counts of fourth-degree criminal possession of stolen property, and fourth-degree grand larceny (New York County Indictment Number 4080/2018). That matter is still pending.
Defendant signed a superseding agreement on February 23, 2019, containing the same conditions as the first contract, with several additional clauses. Most relevant here is clause fifteen, which states, "I understand that any and all tracking information to law enforcement will be released under court order" (February 2019, GPS Agreement [People's Exhibit 5]).
After his arrest on the current matter in Queens County on September 18, 2019, defendant was arraigned on September 19th, and, charged with Rape in the First Degree (PL § 130.35[1]), two counts of Burglary in the First Degree (PL § 140.30[2], [3]), Robbery in the First Degree (PL § 160.15[3]), and other related charges. After defendant's arrest, the prosecution issued three investigatory grand jury subpoenas duces tecum to I.C. Bailbonds. The first subpoena, dated September 18, 2019, requested: "Any and all recordings pertaining to the ankle monitoring device associated with JOSHUA HENDERSON... including, but not limited to, GPS coordinates from 12:00 am on September 16, 2019, until 12:00 am on September 17, 2019" (Subpoena No.1). The second subpoena, dated September 23, 2019, contained the same language and, requested GPS data "from 9:00 a.m. on June 30, 2019, to 1:40 a.m. on July 8, 2019[;] 7:30 a.m. to 10:30 p.m. on August 6, 2019[;] 9:00 a.m. to 7:30 p.m. on August 7, 2019[;] and 5:30 a.m. on August 6, 2019, to 9:15 p.m. on August 11, 2019" (Subpoena No.2). The Third subpoena, dated October 1, 2019, requested the following GPS data: August 1, 2019, from 6:00 a.m. to 10:00 p.m.; August 8, 2019, from 4:00 p.m. to 6:00 p.m.; and August 27, 2019, from 2:00 p.m. to 5:00 p.m.
On February 13, 2020, defendant was arraigned on a twenty-seven-count indictment, charging him with predatory sexual assault, first-degree rape, multiple counts of first- and second-degree robbery and burglary, among other charges (Queens County Indictment Number 62/2020). The indictment alleges that the above-mentioned acts occurred on August 6, 7, 8, and 27, 2019, and September 16 and 18, 2019; all but one of these dates coincide with the subpoenas that requested defendant's GPS data.
Defendant now moves to suppress the GPS data obtained by the prosecution from the bail bond company on the ground that it constituted a search requiring a warrant under both the state and federal constitutions, pursuant to Carpenter v. United States, 138 S.Ct. 2206 (2018). Defendant argues that his ankle bracelet "passively generated" the GPS data, just as Carpenter's cell phone passively generated cell site location information (CSLI). Defendant further contends that he maintained an expectation of privacy in his GPS data, evidenced by the GPS Agreement, which states that such information will be released to law enforcement under "court order." Defendant concludes that, while he consented to release of data under some circumstances, he did not consent to these records being released under subpoena, and thus did not voluntarily surrender his right that the GPS data be kept private.
In opposition, the People argue that defendant's reliance on Carpenter is misplaced because, unlike the incidental collection of CSLI in that case, here, defendant explicitly and voluntarily gave up the GPS data to a third party. Further, defendant cannot have a reasonable expectation of privacy in information he has voluntarily turned over to a third party, and thus, the Fourth Amendment does not apply, and no warrant was required. Finally, the People claim that the subpoenas conformed with the requirements of article 610 of the Criminal Procedure Law and were otherwise proper.
The Fourth Amendment of the United States Constitution, like its state counterpart, protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This includes, to some extent, one's physical location and movements. See United States v. Jones, 565 U.S. 400 (2012). Whether the Fourth Amendment's protection applies depends on "whether the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action." Smith v. Maryland, 442 U.S. 735, 740 (1979). This expectation consists of two components: first, the subjective component centers on whether the individual has exhibited an actual expectation of privacy; and second, the objective component focuses on whether that expectation is one that society is prepared to recognize as reasonable. Id.
A subjective expectation of privacy exists where a person seeks to preserve something as private. Katz v. United States, 389, U.S. 347, 351 (1967). But a search to which an individual consents meets Fourth Amendment requirements. Id. at 358 n. 22. Moreover, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Smith, 442 U.S. at 743-44. The third-party doctrine is premised upon the idea that, by revealing one's affairs to another, a person assumes the risk of disclosure by that person to the Government. United States v. Miller, 425 US. 435, 443 (1976). This remains true "even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Id.
The Supreme Court has recently analyzed the intersection of an individual's location data and the third-party doctrine. In Carpenter v. United States, the Court held that an individual maintains a legitimate expectation of privacy in the record of their physical movements, captured through CSLI, despite handing over that data to a third party - the wireless carriers. 138 S.Ct. at 2206. In declining to extend the third-party doctrine to CSLI, the Court rejected the notion that cell phone users "voluntarily assume the risk of turning over a comprehensive dossier of his physical movements." Id. at 2220. Because cell phone use is pervasive in society and devices are used for communication, news, productivity, and all facets of daily life, the Court characterized wireless carriers' collection of CSLI as "casual." Id. at 2219. That is, CSLI is collected incidentally by the wireless carriers to allow for full integration of location services while using a cell phone. Thus, the Court found that the Fourth Amendment protected Carpenter's CSLI, and that obtaining that data via subpoena was an improper search that required a warrant. Id. at 2221.
With those principles in mind, here, defendant has not established a reasonable expectation of privacy in the GPS data that he voluntarily turned over to the bail bond company. Thus, there was no Fourth Amendment "search," and no warrant was required for the prosecution to obtain the data.
Defendant has failed to establish a subjective expectation of privacy. While a subjective expectation can be shown where a person seeks to preserve something as private, here, there is no way for defendant to keep his GPS records private. Defendant gave up his privacy explicitly when he signed the agreement, which also indicated that he had the right to refuse to wear the bracelet. Defendant received a benefit to this bargain - release from jail and posting of his bond - and thus, his choice to give up this privacy was made knowingly. Defendant argues that he had an expectation of privacy to the extent that he believed that the GPS data would be turned over via a search warrant only. But defendant puts the cart before the horse. The requirement of a search warrant does not precede or create a reasonable expectation of privacy. Rather, it is an expectation of privacy that implicates the Fourth Amendment and thus, triggers the warrant requirement.
Moreover, even by the terms of the GPS Agreement, defendant cannot argue credibly that the data would be turned over under a search warrant only. Clause one of the contract states, "I understand that my location will be monitored by this Device and if necessary and/or required by law, may be shared with other law enforcement agencies" (February 2019, GPS Agreement). Thus, defendant was on notice that, if required by law, his location data may be shared with law enforcement agencies. And the subpoenas issued here necessitated and required the bail bond company, by law, to share the GPS data.
Defendant's claimed subjective expectation of privacy relies on clause fifteen of the GPS Agreement, which states that "any and all tracking information to law enforcement will be released under court order" (February 2019, GPS Agreement). But this language does not differ substantially from the first clause, nor does it conflict or replace it. Indeed, when read as a whole, the GPS Agreement put defendant on notice that a court order will cause release of the GPS data, while necessity and/or a lawful mandate may cause release. Defendant's subjective expectation that only a search warrant would allow release is therefore unreasonable, as his expectation does not match the plain language of the contract that he signed.
So too has defendant failed to establish the objective component. It cannot be said that defendant's subjective interpretation of the contact, which rewords the agreement's express terms, is one that society is prepared to recognize as reasonable.
Defendant's attempt to analogize his GPS data to the CSLI in Carpenter also fails. Unlike the CSLI in Carpenter, which was collected incidentally by wireless carriers to enhance the service and experience for users' cell phones, collection of defendant's GPS data is entirely the point - it is deliberate. The bail bond company put down $100,000 for defendant's release, and to secure its deposit, the company required that defendant agree to wear a non-removeable ankle bracelet - to keep track of his physical location and protect their financial stake, should defendant decide to flee. While cell phone users sign contracts to receive cellular service from wireless carriers, they do not sign contracts for the express purpose of allowing carriers to monitor their location. In contrast, defendant signed the contract with the bail bond company for the express purpose of monitoring his location. For the same reason, defendant "voluntarily" turned over his GPS data by signing the contract, as he had a choice whether to keep or turn over the data. Thus, he "assume[d] the risk of turning over a comprehensive dossier of his physical movements" - in exchange for his release. Carpenter, 138 S.Ct. at 2220.
Because defendant has failed to establish a reasonable expectation of privacy in the GPS data he voluntarily turned over to a third party, no Fourth Amendment search occurred that would have required a warrant. Thus, "this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time [ ] the subpoena is issued." Miller, 425 U.S. at 444. Therefore, the GPS data was obtained properly by the prosecution from the bail bond company.
Accordingly, for the reasons discussed above, defendant's motion to suppress the GPS data is denied.
This constitutes the decision of the Court.