Opinion
01027-2017
09-04-2018
The PEOPLE of the State of New York v. Maurice SIMPSON, Defendant.
For the Defendant: Legal Aid Society (Mihea Kim, Esq., of Counsel; John Kalinowski, Esq., of Counsel) For the People: Richard A. Brown, District Attorney, Queens County (Derek Milligan, Esq., of Counsel; Robin Leopold, Esq., of Counsel)
For the Defendant: Legal Aid Society (Mihea Kim, Esq., of Counsel; John Kalinowski, Esq., of Counsel)
For the People: Richard A. Brown, District Attorney, Queens County (Derek Milligan, Esq., of Counsel; Robin Leopold, Esq., of Counsel)
John Zoll, J.
Summary of Court's Decision
The recent decision of Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018) applies to the instant case; the People recovered CSLI records to which the defendant had a Fourth Amendment privacy right; the People's ex parte application to the Supreme Court was required to be based on probable cause; the defendant has a due process right to be heard as to whether the People's application was based on probable cause; under the specific procedural posture of this case, the appropriate remedy in the instant case is to give the defendant a de novo review of the People's application; the People's order seeking the defendant's CSLI records and account information was supported by probable cause; the defendant's motion to suppress and remove evidence from the trial record is denied.
Procedural Posture
On May 31, 2018, a jury trial commenced, in which the defendant is charged with one count of Robbery in the First Degree. During the course of this trial, the People introduced several pieces of evidence connected to the defendant's cell phone. First, the defendant's cell phone number, which had previously been provided to both the assigned investigating detective and an agent of the New York State Division of Parole, who was charged with supervising the defendant The People also introduced cell phone records of a ‘Malik Simpson’ using the phone number given to Detective Rossello by the defendant. Finally, the People entered into evidence the testimony of Mr. Joseph Sierra, a T-Mobile representative, whose testimony was based upon historical cell-site location information (CSLI) records.
Subsequently, at the end of all the evidence, the People requested that a lesser included charge of Robbery in the Third Degree also be submitted to the jury. The Court granted that application.
This decision will omit the number for privacy purposes.
Det. Michael Rosselo.
This witness was Parole Officer Nicole Bagu, who supervised the defendant. She was introduced to the jury as working for ‘a state agency’ so the defendant's status as a parolee did not prejudice the jury.
The defendant objected to the cell site records being entered into evidence as well as the testimony of Mr. Sierra and Parole Officer Bagu. During a sidebar conference, the defendant served a motion to suppress the records immediately prior to Mr. Sierra testifying. The Court noted that the motion was likely to be untimely, but ultimately denied the motion to suppress on the grounds that the defendant did not have standing to challenge the CSLI records maintained by a third party, in accordance with the state of the law on Wednesday, June 20, 2018. (See People v. Rubin , 143 A.D.3d 846, 39 N.Y.S.3d 74 [2d Dept. 2016] ; People v. Jiles , 158 A.D.3d 75, 68 N.Y.S.3d 787 [4th Dept. 2017] ; People v. Taylor , 158 A.D.3d 1095, 72 N.Y.S.3d 256 [4th Dept. 2018] ; People v. Sorrentino , 93 A.D.3d 450, 939 N.Y.S.2d 452 [1st Dept. 2012] ). However, the Court ruled that the People were required to comply with the Stored Communications Act. The Court permitted the T-Mobile expert to testify, permitted into evidence the cell phone records, CSLI records for the three-day period November 29, 2016 through December 1, 2016, the cell phone number of a ‘Malik Simpson’, and Parole Officer's Bagu's testimony.
At the side bar discussion after the defendant's objection, the defendant orally and in writing moved to suppress the CSLI records. The Court inquired why the motion was not made with the statutory 45-day requirement pursuant to CPL 255.20(1). Defense counsel asserted they were unaware the records would be used. The People responded that the CSLI records were the subject of certain email discussions months prior and defendant was thus on notice that the records were going to be used by the People at trial and therefore was in a position to make a timely motion. This Court did not decide the timeliness issue and ruled that while it was aware the CSLI issue was pending before the US Supreme Court, no decision had been rendered and therefore denied the defendant's motion to suppress on that basis.
Both Detective Rossello and Parole Officer Bagu testified that the phone number associated with ‘Malik Simpson’ was the same phone number the defendant had provided as his own. Mr. Joseph Sierra, the T-Mobile representative, who was deemed to be an expert in the area of cell site records and technology, was permitted to explain to the jury how (a) how a cell phone communicates with cell towers; (b) how that information is recorded, preserved, maintained; and (c) how that information can be used to help pinpoint the location of that cell phone at the time a call/text is made. Mr. Sierra also testified that the defendant's phone "pinged" a cell tower close to the Family Dollar Store that was robbed. Using an enlarged map, Mr. Sierra showed the jury where approximately the tower was that was pinged just a few minutes after the robbery. He further testified that in virtually every other instance within the three-day period, the defendant's phone "pinged" a different cell tower, a few blocks of the Family Dollar Store.
Of course, just two days after that testimony and the admission of the defendant's historical CSLI records into evidence, the United States Supreme Court issued its decision of Carpenter v. United States , holding that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI" ( Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 2217, 201 L.Ed.2d 507 [2018] ). In its decision, the Court held that information obtained from an individual's wireless carrier or carriers is the product of a search, for a which a search warrant supported by probable cause is required ( id. at 2221 ).
On Monday, June 25, 2018, the defendant renewed his motion to suppress the records and related testimony. The People again opposed the defendant's application in its entirety, both orally and on papers, arguing that Carpenter did not apply to the instant case, and that even if it did, a court order for the records, signed by a judge of coordinate jurisdiction, was supported by probable cause, and therefore did not violate the Carpenter ruling. This Court ultimately denied the defendant's motion to suppress orally with a written decision to follow. This decision memorializes that oral decision. Conclusions of Law
Assistant District Attorney Kathryn Mullen, from the People's Appeals Bureau, appeared for the People to argue their position both orally and in writing. Mr. John Kalinowski, Esq., argued for the defense both orally and on paper.
Carpenter v. United States is Applicable to the Instant Case
The initial inquiry is whether Carpenter applies to the instant case on trial. For the reasons discussed below, this Court finds that it does apply and that the retrieval of the defendant's historical CSLI records implicated the defendant's Fourth Amendment right to be free from an unreasonable, warrantless search and seizure.
The People first argue that because they obtained cell site data for a period of only three days, Carpenter does not apply, arguing that "the Court explicitly limited its holding to collection of seven days of cell site data or more." (People's Memo of Law , p. 1).
Chief Justice Roberts, writing for the majority in a footnote, revealed that the litigants unsuccessfully attempted to arrive at a consensus of exactly what minimum period of time would require a warrant. On this issue, he concluded that "we need not decide whether there is a limited period for which the Government may obtain an individual's historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search" ( Carpenter , 138 S.Ct. at 2217, fn. 3 ).
The decision was 5-4, with four separate dissents written by Justices Kennedy, Thomas, Alito, and Gorsuch.
The Ohio trial court was presented with two orders: one for 152 days and another for 7 days. Since the Supreme Court was reviewing the Constitutional propriety of the court order, seven days was the period of time under review.
Clearly, the majority in Carpenter did not expressly place a definitive limit on the amount of time the government may request an individual's CSLI without the need for a search warrant. Moreover, the majority's analysis dedicates little time discussing the amount of time the government may apply for a warrantless court order; instead, the decision virtually focuses almost all of its entire discussion on whether and why the Fourth Amendment confers on an individual a reasonable expectation of privacy in his or her CSLI records. The Court's justification for conferring this Fourth Amendment protection rests entirely on the principle that tracking an individual's movements without a warrant is contrary to the Fourth Amendment; not the amount of time the government seeks to monitor that particular person. In determining if the holding in Carpenter applies to this case, and in the absence of any subsequent appellate case law so soon after the decision, this Court can only rely on the express holding of the Supreme Court and any reasoning it employed to arrive at its conclusion. This Court finds that the express holding of the Carpenter Court was that an individual maintains a legitimate expectation of privacy in his physical movement as captured through CSLI . The Carpenter decision simply applied that new principle to the shortest period of time covered by the Ohio court's order: seven days. As discussed below, this Court finds that the period of time in Carpenter — seven days -- is less significant to the ultimate decision by the Court than the underlying rationale supporting the Court's express holding.
"The ultimate measure of the constitutionality of a governmental search is reasonableness" ( Carpenter , 138 S. Ct. at 2221 ). A search is typically unreasonable where "a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing" and a search is reasonable, in the absence of a warrant, "only if it falls within a specific exception to the warrant requirement" ( id. ). The majority of the justices reiterated that the Fourth Amendment "protects people, not places" ( Carpenter at 2213, quoting Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967] ), and a determination of what is protected by the Fourth Amendment depends on what society is prepared to recognize as reasonable ( Carpenter at 2213, quoting Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 [1979] ).
In Carpenter , the Court reviewed two competing principles involving an individual's privacy rights: information of or about a person held by third parties--such as banking records held by their financial institution--and instances where the government tracks the movements of a suspect in a criminal investigation through enhanced technological tracking devices, such as a global positioning system (GPS).
In United States v. Miller , 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), the defendant moved to suppress bank records obtained by subpoena from his bank, including microfilm of the defendant's account, deposit slips, cancelled checks, financial statements and three monthly statements held by two different banks. In denying the defendant's motion to suppress the bank records, the Court noted that "what a person knowingly exposes to the public is not a subject of Fourth Amendment protection" ( Miller , 425 U.S. at 442, 96 S.Ct. 1619, quoting Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967] ). Since bank records are not confidential, but are negotiable instruments used in commercial transactions to which the bank is also a party, they are not considered private papers, confidential communications or property of the customer/defendant. In addition, the information is "voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business" ( id. ). New York courts similarly do not recognize a Fourth Amendment privacy interest in a person's records held by a third party. ( People v. Tolentino , 14 N.Y.3d 382, 900 N.Y.S.2d 708, 926 N.E.2d 1212 [2010] )[DMV records]; People v. Sorrentino , supra (CSLI records).
The Sorrentino decision held that an individual did not have a privacy right in his CSLI records but also held that the information used in support of the court order did in fact establish probable cause.
Likewise, in Smith v. Maryland , 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Court examined the warrantless installation of a pen register at the telephone company's offices to record the phone numbers dialed by the suspect in a robbery investigation. The defendant argued that he had a Fourth Amendment privacy interest in the phone numbers he dialed, even though those records were maintained by the phone company. The Supreme Court disagreed, holding that people do not generally hold an expectation of privacy in the phone numbers they dial as opposed to the content of the conversations that ensue ( Smith , 442 U.S. at 741, 99 S.Ct. 2577 ). The phone company compiles these records; keeps these records for both themselves and for the customer; and sends a record of those calls back to the customer monthly ( id. at 742, 99 S.Ct. 2577 ). The Court held that the defendant "exposed" the information of the number he was calling to the phone company and as a result "assumed the risk that the company would reveal to the police the numbers he dialed" ( id. at 745, 99 S.Ct. 2577 ).
The results of the pen register were then used to obtain a search warrant of the defendant's home where more incriminating evidence was found.
The theme of "exposing" information to others continued into United States v. Knotts and the government's use of beepers. In United States v. Knotts , 460 U.S. 276, 284, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), officers used a beeper planted in a container of chloroform in the defendant's car to track the vehicle's movements from Minneapolis to Wisconsin. The Court held that the defendant could not assert a privacy interest in the information obtained from the beeper because "a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another" ( id. at 281, 103 S.Ct. 1081 ). In the Knotts case, the beeper acted as an "augmented visual surveillance" as the officers used the beeper's signal to help keep the vehicle in view. The Court otherwise emphasized the "limited use which the government made of the signals from this particular beeper during a discrete automotive journey" but left open the question that "different constitutional principles may be applicable if twenty-four hour surveillance of any citizen of this country were possible" ( id. at 284-285, 103 S.Ct. 1081 ).
In United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), pursuant to a search warrant, the police installed a GPS tracking device on the defendant's vehicle and proceeded to track him for 28 days. Execution of the warrant was apparently defective however, as the device was installed on the 11th day and it was not installed within the jurisdiction authorized in the warrant. Despite a disagreement as to why the Fourth Amendment protected Mr. Jones, a unanimous Court held that the Government's installation of a GPS device on the defendant's vehicle and its use of that device to monitor the vehicle's movements constituted a search. Some of the Justices also noted that "related privacy concerns would be raised by ... surreptitiously activating a stolen vehicle detection system in Jones' car to track Jones himself or conducting GPS tracking of his cell phone" ( Jones at 426, 428, 132 S.Ct. 945.)
The Court does not discuss this aspect of the case again until the end of the decision, where the Government argued that there was a probable cause finding by a magistrate. The Court simply stated that argument was forfeited as it was not raised below.
Some justices based their ruling on the fact that the government had invaded the defendant's property for the purpose of installing the GPS device on his vehicle — the trespass theory of the Fourth Amendment-- the original principle upon which the Fourth Amendment was based. Other justices held that even absent a trespass by the government, the Katz standard of a ‘reasonable expectation of privacy which society recognizes’ should control and is dispositive of the issue in favor of the defendant.
In Carpenter , the Court directly addressed this "new phenomenon," wherein the Government had the "ability to chronicle a person's past movements through the record of his cell phone signals" which simultaneously replicated the qualities of GPS monitoring. The Court specifically held that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI ( Carpenter at 2217 ). The unifying principle, as suggested in both Knotts and Jones , is that the remote monitoring of one's physical movements over an extended period of time carries with it Fourth Amendment privacy concerns. Indeed, the Carpenter Court stated as much, writing, "historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones " ( Carpenter at 2218 ). Where, in Knotts and Jones , the monitoring started and ended with the motor vehicle, in Carpenter , "a cell phone tracks nearly exactly the movements of its owners" ( id. ).
The Court further rejected the "third-party" shared business records doctrine as it pertained to CSLI records because these time-stamped records "are not truly shared as one normally understands that term." ( Carpenter at 2220 ). The mere act of turning on one's cell phone triggers a trail of information, including one's location. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no "meaningful sense does the user voluntarily ‘assume’ [ ] the risk of turning over a comprehensive dossier of his physical movements" ( Carpenter at 2220, quoting Smith , 442 U.S. at 745, 99 S.Ct. 2577 ). Justice Roberts characterized the historical CSLI records as "personal location information maintained by a third party" that does not "fit neatly under existing precedents" ( Carpenter at 2214 ), going so far as to write that "when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user" ( id. at 2218 ).
Furthermore, as to any underlying reasoning that the Court employed in reaching its conclusion, Justice Roberts wrote, "[t]his case is not about using a cell phone or a person's movement at a particular time. It is about a detailed chronicle of a person's physical presence compiled every day, every moment, over several years. Such a chronicle implicates privacy concerns far beyond those considered in Smith and Miller ." ( Carpenter at 2220 ). Indeed, this Court notes that Justice Roberts repeatedly used the concept of tracking an individual's movement or movements throughout the Carpenter decision as the basis for conferring Fourth Amendment protection to CSLI records (see e.g. , Carpenter at 2217 )("catalogue every single movement "); ( Carpenter at 2215 )("since GPS monitoring of a vehicle tracks ‘every movement’ a person makes in that vehicle"); ( Carpenter at 2217"in Jones' car to track Jones himself"); ( Carpenter at 2216 )("chronicle a person's past movements "); ( Carpenter at 2216 )("such tracking partakes of many of the qualities of GPS monitoring"); ( Carpenter at 2218 )("With access to CSLI, the Government can now travel back in time to retrace a person's whereabouts"; ( Carpenter at 2218 )("this newfound tracking capacity runs against everyone")(emphasis added in all).
In addition, this Court had the benefit of the testimony of the T-Mobile witness, the phone records and the CSLI "hits" for a three-day period. The testimony and the records were used by the People to place the defendant near the Family Dollar Store within minutes of the robbery. Furthermore, by way of evidentiary comparison, the records showed that most, if not all, of his cell phone hits were made to another, albeit nearby, tower closer to his home, implying that these records show the defendant was at or near the place of the crime when he was not ordinarily in that area during that three-day window of time. Indeed, the People's summation argued precisely that point, using the CSLI records to bolster their case, which was defended as a misidentification.The People obtained the CSLI records, in part, to show the defendant's whereabouts and movements over a three-day period of time. The distinction between the seven days of CSLI in the Carpenter decision and the three days of CSLI in the instant case is de minimis . Until appellate courts provide clarity on Carpenter's scope and further application, this Court is constrained to apply Carpenter as it reads: the defendant has a right to be free from a warrantless search and seizure of his CSLI records held by T-Mobile and the government's acquisition of those records must be based on probable cause. Therefore, this Court finds that the Carpenter decision applies to the instant case.
The Court notes that the issue of probable cause must necessarily be decided at the time the order is submitted to the court. It ordinarily will not have the benefit of trial testimony to determine if the investigative/evidentiary purpose of the CSLI information was to track the defendant's movement over a certain period of time, thus implicating his Fourth Amendment rights; or simply to place him at one specific location at one specific point in time, which, arguably, may not be subject to the ruling in Carpenter . (See Carpenter , 138 S.Ct. at 2220 ).
The Court Order Obtained by the People Authorize the
Introduction of the CSLI Records and Related Testimony
The People's second, and more compelling, argument is that they did in fact obtain a court order to obtain the CSLI records of the defendant; and that the court order, signed by a neutral and detached magistrate, was based on probable cause. Specifically, on June 16, 2016, Justice Barry Kron, signed a court order requiring T-Mobile to disclose call detail records and historical cell site information for the defendant's mobile telephone number. The order specifically states that Justice Kron found probable cause existed to obtain the information requested based on the sworn factual allegations contained in the application to the court.
Although the order in the instant case relied on the same statute as that in Carpenter — the Stored Communications Act — the People assert that this case is different because, in Carpenter , the basis for issuing the court order was only ‘specific and articulable facts’, an indisputable lesser quantum of evidence than probable cause, whereas, in the instant case, the People obtained an order where a judge found probable cause in support of the order requesting the CSLI records of the defendant ( Carpenter at 2212 ). The defendant argues, citing Carpenter , that the People were required to obtain a search warrant and, in the absence of a warrant or any recognized exception to the warrant clause, the records were recovered unlawfully and should not be admitted into evidence. On this point, the Court agrees with the People.
Generally, in New York, the People may acquire evidence by court order in four ways: by subpoena; by search warrant; by a direct application to the supreme court before an accusatory instrument is filed—commonly referred to as an Abe A . application, and lastly, by court-ordered discovery pursuant to CPL 240.40(2).
The Court will not discuss evidence obtained by subpoena.
Applying for and obtaining a search warrant is governed by Article 690 of the Criminal Procedure Law. Fundamental to the issuance of any search warrant is a finding by a neutral and detached magistrate that probable cause exists. ( CPL 690.35[3][b], 690.40[2] ; CPL 700.20[2][b] (eavesdropping and video surveillance warrants); People v. Bigelow , 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985].) Probable cause and reasonable cause have been used interchangeably in New York and legally mean the same thing ( People v. Maldonado , 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028 [1995] ). Reasonable cause is defined in the Criminal Procedure Law as follows:
"Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it."
( CPL 70.20 ; see also , People v. McRay , 51 N.Y.2d 594, 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015 [1980] ) [Reasonable cause is defined as facts and circumstances sufficient to support a reasonable belief that an offense has been or is being committed].
See also , Bigelow , 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451, quoting People v. McRay , 51 N.Y.2d 594, 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015 [1980] ("Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place"); People v. Carrasquillo , 54 N.Y.2d 248, 445 N.Y.S.2d 97, 429 N.E.2d 775 [1981] (for probable cause to exist it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice).
( Matter of Abe A. , 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982] )(blood sample sought from a suspect in a homicide investigation).This is generally done during an investigation and prior to the filing of an accusatory instrument. A finding of probable cause is also a prerequisite to the issuance of such an order. Such an application by 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" ( id. at 291, 452 N.Y.S.2d 6, 437 N.E.2d 265 ). As a matter of due process, the defendant must be afforded an opportunity to be heard. Indeed, the Court of Appeals reasoned as follows with regards to such an application:
"At this point it seems appropriate to add, since here there was no exigency, that the course followed by the People in bringing on its original application on notice to the suspect was no more than is required by such circumstances. After all, when frustration of the purpose of the application is not at risk, it is an elementary tenet of due process that the target of the application be afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed. ( Abe A. at 296, 452 N.Y.S.2d 6, 437 N.E.2d 265 )(citations omitted).
Finally, the People may also acquire evidence through statutory court ordered discovery, pursuant to CPL 240.40(2). Criminal Procedure Law 240.40(2) reads in relevant part:
"Upon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment, superior court information prosecutor's information, information or simplified information charging a misdemeanor is pending:
(a) must order discovery as to any property not disclosed upon a demand to pursuant to section 240.30, if it finds that the defendant's refusal to disclose such material is not justified; and
(b) may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to:
(i) Appear in a lineup;
(ii) Speak for identification by witness or potential witness;
(iii) be fingerprinted;
(iv) Pose for photographs not involving reenactment of an event;
(v) Permit the taking of samples of blood, hair, or other materials from his body, in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto;
(vi) Provide specimens of his handwriting;
(vii) Submit to a reasonable physical or medical inspection of his body.
This subdivision shall not be construed to limit, expand, or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument consistent with such rights as the defendant may derive from the constitution of this state or of the United States.
These applications can be made either on notice to the defendant (e.g., an order compelling the defendant to appear in a lineup or provide a buccal DNA swab) or by means of an ex parte application, usually for evidence that does not involve the defendant's personal participation, such as the application in this case. Even prior to the Carpenter decision, New York courts have required that probable cause exist in support of the court order ( Matter of the District Attorney of Kings County v. Angelo G. , 48 A.D.2d 576, 371 N.Y.S.2d 127 [1975] ).
In this case, the People made an application to the supreme court (J. Kron), post-indictment seeking, inter alia , "all subscriber IMSI, IMEI, ESN, MIN, MSID, MEID, MAC address; billing and account information any all past cell site information but not limited to the telephone number and/or customer information, for the period of November 29, 2016 to December 1, 2016." held by third party T-Mobile. The People's application does not make reference to CPL 240.40(2) as its authority to acquire the evidence, however it does refer to the Stored Communications Act. This Court treats the application as one pursuant to CPL 240.40(2), given that an indictment had been filed at the time of the application to the supreme court.
Where there has been a finding of probable cause by a judge or magistrate seeking to acquire evidence by court order, the defendant, who is subject to that finding and who has standing to challenge the recovery of that evidence, has a right to challenge that finding as a matter of due process, whether by statute or decisional case law, at some point during the criminal proceeding (see CPL Article 710 Motion to Suppress Evidence ; Matter of Abe A. , 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982] ("After all, when frustration of the purpose of the application is not at risk, it is an elementary tenet of due process that the target of the application be afforded the opportunity to be heard in opposition before his or her constitutional right to be left alone may be infringed."); People v. Guerra , 65 N.Y.2d 60, 63, 489 N.Y.S.2d 718, 478 N.E.2d 1319 [1985] ("The warrant was an ex parte order and the law of the case doctrine does not prevent the defendant from challenging a determination which he had no opportunity to litigate at the time it was made."); People v. Alfinito , 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644 [1965] (attacking the truthfulness of statements made in support of a search warrant); CPL 710.20 ; and VTL 1194 ).
In People v. Sorrentino , 93 A.D.3d 450, 939 N.Y.S.2d 452 (1st Dept. 2012), the Appellate Division stated that the court properly denied the defendant's motion to suppress historical cell site information, presumably given the status of the law at that time. Furthermore, it found that the record also supports the court's finding of probable cause in the court order. Therefore, this Court does not find that Sorrentino precludes giving the defendant an opportunity to be heard as to the issue of probable cause.
At the time of the issuance of the court order in this case, the law in New York was that an individual does not have a legitimate expectation of privacy in his/her CSLI (see People v. Jiles , 158 A.D.3d 75, 68 N.Y.S.3d 787 [4th Dept. 2017] ; People v. Taylor , 158 A.D.3d 1095, 72 N.Y.S.3d 256 [4th Dept. 2018] ; People v. Sorrentino , 93 A.D.3d 450, 939 N.Y.S.2d 452 [1st Dept. 2012] ; People v. Rubin , 143 A.D.3d 846, 39 N.Y.S.3d 74 [2d Dept. 2016] ). Therefore, there was no legal basis for the defendant to challenge the acquisition of this evidence and no due process rights of the defendant were violated. Given the holding in Carpenter , the defendant now has standing to challenge the acquisition of his CSLI records held by a third-party cell phone carrier, and therefore, certain due process rights related to the finding of probable cause.
The defendant in the instant case has not had the opportunity to challenge the finding of probable cause to issue the court order. Therefore, this Court finds that the appropriate remedy -- in this particular case and at this stage of the proceeding -- is to afford the defendant a de novo opportunity to be heard as to whether probable cause exists to issue the court order to obtain CSLI records of the defendant.
Defense counsel argues that Justice Kron should be the magistrate to hear this argument. This Court disagrees. Justice Kron's finding of probable cause is not the law of the case as it was an ex parte application and may be reviewed by a judge of coordinate jurisdiction (People v. Guerra , 65 N.Y.2d 60, 489 N.Y.S.2d 718, 478 N.E.2d 1319 [1985] ).
The factual allegations in support of the order are as follows:
Detective Michael Rossello of the New York City Police Department explained how cell sites/towers operate, collect, and store information;
On November 30, 2016, the defendant Maurice Simpson entered a Family Dollar Store, located at 35-27 31st Street and approached the cash register and demanded money from the cash register;
The complainant, Michael Daniello, observed a hard-pointed object underneath the defendant's clothing and he believed it to be a firearm;
The complainant stated that the defendant then moved the hard-pointed object and threatened to shoot the complainant and demanded the money again;
On May 4, 2017 the complainant identified the defendant in a lineup procedure;
The defendant was arrested on May 5, 2017 and was indicted on May 9, 2017 on charges of Robbery in the First Degree;
Detective Rossello recovered a cell phone from the defendant and the defendant identified the cell phone as his personal cell phone and provided his phone number;
Detective Rossello subpoenaed and obtained the subscriber information of ‘Malik Simpson’.
An indictment creates a presumption of reasonable cause to believe that the defendant committed a crime ( Strange v. County of Westchester , 29 A.D.3d 676, 815 N.Y.S.2d 155 [2d Dept. 2006] ). Additionally, the complainant identified the defendant to the police as the person who had robbed the Family Dollar Store and that information was included in the order presented to Justice Kron. Information received from a known eyewitness/victim identifying the defendant as the perpetrator of a crime provides probable cause to believe that a crime has been committed and the defendant committed it ( People v. Hicks , 38 N.Y.2d 90, 378 N.Y.S.2d 660, 341 N.E.2d 227 [1990] ; People v. Evans , 237 A.D.2d 458, 655 N.Y.S.2d 76 [2d Dept. 1997] ). The factual allegations, if true, establish the elements of Robbery in the First Degree (CPL 160.15[4] ).
The only factor that is not specifically articulated in the factual allegations contained within the order is a reasonable belief that the defendant had his phone with him at the time of the robbery. This Court finds that it is reasonable to believe that a person is more likely than not to be carrying his or her cell phone with them most, if not all, of the time and no further specific factual allegations are necessary to support that allegation. (See Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 [2014] ("modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy"); Carpenter at 2217 ("After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes")
Lastly, the defendant's argument that a search warrant is required has no merit. "Nomenclature notwithstanding, if the application [to draw a blood sample from defendant under investigation] and the relief comport with all the requisites of a search warrant, it may be taken for what it is." ( Abe A. , quoting People v. Marshall , 69 Mich. App. 288, 300-302, 244 N.W.2d 451 [1976] ; Sorrentino at 451, 939 N.Y.S.2d 452 [2d Dept. 2012] )[People's evidentiary showing of probable cause was effectively a warrant].
Therefore, since there was probable cause to support the court order issued by Justice Kron seeking the defendant's CSLI records, the acquisition of these records did not violate his Fourth Amendment rights and the motion to suppress the records, the defendant's cell phone number and any testimony related to such records, is denied.
This constitutes the decision and order of the Court.