People v Campos

[*1] People v Campos 2015 NY Slip Op 51965(U) Decided on November 9, 2015 Supreme Court, Bronx County Greenberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 9, 2015
Supreme Court, Bronx County

The People of the State of New York

against

Alejandro Campos and Dominick Davis, Defendants



1684-2012
Ethan Greenberg, J.

DECISION AND ORDER

A combined Huntley/Dunaway/Wade/Mapp/Harris hearing was conducted before this Court over several dates, concluding on October 16, 2015. On October 21, 2015, the Court rendered an oral decision. This Opinion states the Court's findings of fact and conclusions of law once again, this time in more formal written form.

1. "PING" ISSUE

The most complex and most troubling issue in this murder case arises from the following facts.

Defendants Dominick Davis and Alejandro Campos are jointly charged with, among other crimes, robbing and killing a young man named Hwang Yang at about midnight on April 18, 2012, as Yang walked from the subway toward his home in the Riverdale section of the Bronx.

Defendant Alejandro Campos was interviewed by the police on April 26, 2012. At about 9:15 p.m. he identified defendant Davis as the actual shooter (and also provided the police with Davis's cell phone number). A short time later the N.Y.P.D. Technical Assistance, or "TARU", Unit had the phone company "ping" Davis's cell phone. Davis's phone was "pinged" at fifteen minute intervals four times beginning at about 11:15 p.m. on April 26.

The last "ping" disclosed Davis's location - - which was in the parking lot of a McDonald's restaurant right across the street from the same police station where defendant Campos was still being held and interviewed.

This "ping" enabled the police to pick up Davis in that parking lot at about 12:30 a.m. on the 27th; and Davis was Miranda-ized and questioned about two and a half hours later, at 3 a.m. Davis was then Miranda-ized and interviewed a second time, this time on video tape, at about 4:30 a.m. Each time Davis confessed to shooting and killing the victim. He lamented that he had shot Yang over "a dumbass I-Phone," and said that the incident was like a "bad dream".

The police did not obtain any trap and trace order or warrant prior to "pinging" Davis's phone on the night of April 26th.

Instead, the next day, April 27th , during regular daytime business hours, the People applied for and obtained an ex parte trap and trace order from Judge Marcus of this Court. (The application and Order are in evidence; the minutes of the proceeding before Judge Marcus are also in evidence.)

The April 27th application did not reveal, or even hint, to Judge Marcus that on April 26th the police had already "pinged" Davis's phone and then used the "ping" data in order to find Davis and pick him up.

Furthermore, the Order did not retroactively authorize the April 26 "pinging" already conducted by the police. The Order does authorize the collection of all historical cell site data for calls made on Davis's phone from April 14 to April 27; but the Order does not authorize the police to conduct any "pinging" procedure on any date.[FN1]

For these reasons, defendant Davis can and does argue in substance: a) that the April 26th "ping" was illegal; b) that the April 26th "ping" led directly to Davis's arrest; c) that Davis's arrest in turn led to both his 3 a.m. written confession and his 4:30 a.m. video confession; and, d) that both confessions must therefore be suppressed as "the fruit of the poisonous tree."

This argument is a substantial one. The issue is also an important one, because Davis's confessions are essential to the People's case against Davis on the homicide charges here.

The issue presented breaks down into three related questions, as follows.

Number one - - Was there either a Fourth Amendment or a New York State constitutional violation committed here?

Number two - - Was there a violation of Criminal Procedure Law §705, the New York State Trap and Trace statute, or of the related federal statute, the Stored Communications Act, which is set out in Title 18 of the U.S. Code?

And number three - - If there were violations, is suppression of either, or both, of Davis's confessions mandated as a result?

Accordingly, the first question presented is whether the April 26 "ping" of Davis's phone constituted a violation of either the Fourth Amendment of the U.S. Constitution, or of the virtually identical search and seizure provision of the New York State Constitution. (NY State Const., Art. 1, §12).

The answer is "No" for the following reasons.

— "Ping" Not a Search—

First, the Court holds that "pinging" defendant's cell phone to determine defendant Davis's location, so that the police could then pick him up right away, was not a search or seizure; and this "ping" did not implicate either the Fourth Amendment or the New York State Constitution. That is the holding of People v. Moorer, 39 Misc 3d 603 (County Ct. Monroe Co. 2013) and People v. Wells, 45 Misc 3d 793 (S. Ct. Queens Co. 2014).

Moreover, that result is mandated by the logic of People v. Hall, 86 AD3d 450 (1st Dept. 2011), lv. den. 19 NY3d 961 (2012), cert. den. 133 S. Ct. 1240 (2013), a 2011 First Department case which is binding on this Court. In Hall, the Appellate Division held that obtaining a defendant's historic cell site information for a three day period pursuant to a court order did not [*2]constitute a "search" within the meaning of the Fourth Amendment.

Why not?

Because, said the Appellate Division, a defendant has no reasonable expectation of privacy concerning his whereabouts when he is out in public.

Here the police "pinged" defendant's phone only four times over about one hour, and the last "ping" provided Davis's then current location - - which (as noted) was in the parking lot of a McDonald's restaurant, wide open to public view, right across the street from the police station.

That very brief "pinging" procedure was obviously far less intrusive than obtaining three days of cell site information - - a process that the Hall court held was not a "search."Thus, based on Hall, it seems evident a fortiori that a "ping" that disclosed defendant's Davis's momentary presence in a public place was also not a "search" within the meaning of the Fourth Amendment (or New York State Constitution).

The Opinion in Hall distinguishes the automobile GPS cases like People v. Weaver, 12 NY3d 453 (2009), and U.S. v. Jones, 132 S. Ct. 945 (2012), which each involve secretly placing a GPS device on a car and then tracking the car over a prolonged period. That is a search, say Weaver and Jones. But obtaining cell phone geolocation data in a fashion that does not involve planting a device on defendant's property, says Hall, is not a search.

Although the case law is far from unanimous, see P. Corbett, "The Fourth Amendment and Cell Site Location Information: What Should We Do While We Await the Supremes?", 8 Fed. Cts. L. Rev. 815 (2015), most other courts agree with Hall, and they usually put forth either one or both of the following two lines of reasoning.

First, many courts have said that a cell phone owner buys a phone knowing that it contains a GPS device, and the owner necessarily voluntarily exposes all his cell phone data and cell site information to his own phone company. Therefore he has no reasonable expectation of privacy in that data. See, for example, In Re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 611-615 (5th Cir. 2013), and U.S. v. Davis, 785 F.3d 498, 511 (11th Cir. 2015).

That is especially true because ordinarily all a cell phone owner must do in order to avoid having his phone "pinged", or being tracked by cell site data, is to simply turn his phone off.

Second, many courts have also reasoned that a person who is in a public place - - like Davis in this case - - has no reasonable expectation of privacy in his location, which is already exposed to the public (and the police). See U.S. v. Skinner, 690 F.3d 772 (6th Cir. 2012), cert. den. 133 S. Ct. 2851 (2013) and U.S. v. Forest, 355 F.3d 942 (6th Cir.) cert. den. 543 U.S. 856 (2004). (The case law in this area is summarized in T. Sheehan, "Taking the Third Party Doctrine Too Far," 13 Georgetown Law and Public Policy Review 181 (Winter 2015).)

For both these reasons the brief "pinging" done in this case - - which revealed Davis' cell phone geolocation data just long enough for the police to find Davis at McDonald's - - was not a "search" within the meaning of the Fourth Amendment or New York State Constitution.

Speaking bluntly, if Davis was so unwise as to sit, with his phone turned on, in a busy public parking lot right across the street from the very same police officers who were at that moment actively hunting him down as a murder suspect, then Davis cannot credibly argue that he reasonably expected his location to remain private.

Thus defendant Davis is wrong when he asserts that the April 26 "ping" of his cell phone constituted a search or seizure. Such a "ping" is not regulated by, and therefore cannot violate, [*3]either the U.S. or New York State Constitution.

— Exigent Circumstances—

Furthermore, even if that "ping" were considered a search, the constitutional requirement of a search warrant can, of course, be excused by exigent circumstances. See People v. Watkins, 125 AD3d 1364 (4th Dept. 2015) (Exigent circumstances excused a warrantless "ping", assuming - - without deciding - - that the "ping" constituted a search).

Exigent circumstances were presented here. Defendant Campos walked out of his apartment building, accompanied by several detectives, in full public view, at about 6 p.m. on April 26, and was then driven to the stationhouse by the detectives in a police car. Campos's accomplice Davis lived in the same building as Campos. Presumably, many neighbors knew both men. Once word got around to Davis that Campos had gone to the stationhouse and was apparently cooperating with the police, Davis - - who Campos identified as the shooter in his 8:30 p.m. statement - - would have a powerful reason to flee.

Thus the police needed to find Davis just as fast as they could. And it was particularly important to prevent Davis's flight because, according to Campos, just one week earlier Davis had shot and killed a man. Davis was a dangerous person, to say the least.

Taking the time that would have been needed to apply for a trap and trace order that night before first "pinging" Davis's phone might well have allowed Davis, the alleged killer, to escape. See U.S. v. Caraballo, 963 F. Supp. 2d 341, 364 (D. Vt. 2013) (need to quickly find homicide suspect was exigent circumstance justifying warrantless "ping" of suspect's phone).

Applying the familiar Dorman factors, Dorman v. U.S., 435 F.2d 385, 392-3 (D.C. Cir. 1970), People v. Cloud, 168 AD2d 91 (1st Dept.), aff'd. 79 NY2d 786 (1991), there was a strong case for exigent circumstances here for the following reasons: 1) the offense - - murder - - was grave; 2) there was strong reason to think Davis was guilty, based both on Campos's statement and on all the evidence that corroborated that statement; 3) there was good reason to think Davis was armed and dangerous, because he had shot the victim to death one week earlier and had an extensive criminal record, including several felony convictions, see People v. Torres, 140 AD2d 564 (2d Dept.), app. den. 72 NY2d 925 (1988) (because murder weapon not recovered, there was reason to believe that homicide suspect was armed and dangerous); and 4) as noted, once Davis learned that his friend, neighbor and accomplice Campos appeared to be cooperating with the police, Davis had every reason to flee.

The last factor - - flight - - is crucial. It has long been recognized that in determining whether there exist exigent circumstances excusing the need to obtain a warrant, it is especially important to see whether there is a likelihood that the suspect will escape if not swiftly apprehended. People v. Martin, 50 NY2d 1029, 1031, n. 2 (1980); People v. Murray, 277 AD2d 96 (1st Dept. 2000); People v. Cloud, 168 AD2d 91 (1st Dept.), aff'd 79 NY2d 786 (1991).

Thus, for example, in U.S. v. Ellis, 461 F.2d 962 (2d Cir.), cert. den. 409 U.S. 866 (1972) the Second Circuit approved a warrantless search of a car where the officer "thought that the automobile contained evidence which might aid in the apprehension of the two criminals still at large, and that waiting for a warrant might enable them to evade capture." (U.S. v. Robinson, 533 F2d 578, 583 (D.C. Cir. 1975), cert. den. 424 U.S. 956 (1976), says essentially the same thing.)

The Caraballo opinion is instructive on this point. It says:

Law enforcement reasonably believed there was a serious public safety risk if defendant [*4]was not swiftly apprehended. Cell phone pinging presented a peaceful and apparently lawful means of quickly discerning defendant's location in order to maintain at least surveillance over him and to enhance law enforcement's ability to effect an expeditious and safe arrest. See Dorman, 435 F.2d at 392: Delay in arrest of an armed [suspect] may well increase danger to the community meanwhile, or to the officers at time of arrest. This consideration, bears materially on the justification for a warrantless search.'

Caraballo, 963 F.Supp2d at 364.

Thus the Court finds first that the April 26 "ping" of Davis's cell phone, which revealed Davis's location at McDonald's, was not a search at all.

And the Court also finds that even if this "ping" were considered a search, nevertheless there was no requirement for a warrant because of the exigent circumstance that Davis, the alleged killer, might well have fled once he learned that his accomplice Campos was talking to the police.

Indeed, with hindsight, it seems quite likely that Davis was in fact very worried about what Campos might be saying to the police; that is probably the reason why Davis was sitting in a car directly across the street from the stationhouse where Campos was held, and why Davis also had at least one friend come out of the stationhouse and into Davis's car - - presumably to report to Davis what was going on with Campos inside the precinct.

— Attenuation —

Assuming for argument's sake that the "ping" did violate the Fourth Amendment, any taint flowing from that violation was nevertheless attenuated and completely purged by the time Davis made his 3 a.m. and 4:30 a.m. confessions.

Wong Sun v. United States, 371 U.S. 471 (1963), and later cases like Harris v. New York, 401 U.S. 222 (1971) and People v. Conyers, 68 NY2d 982 (1986), lay out the factors that should be considered when evaluating attenuation.

One important factor is the flagrancy and deliberate character of the original constitutional violation. Here the "ping" - - if it was a constitutional violation at all - - was certainly not the least bit flagrant or deliberate. As noted, New York case law, and most federal cases too, seem to say that the Constitution does not govern "pinging". Thus if in the future the law develops so that what the N.Y.P.D. TARU unit did here is ultimately determined to constitute a Fourth Amendment violation, nevertheless the conduct of the police can hardly be called "flagrant" when the police followed what appeared to be the applicable law at the time. See People v. Graham, 90 AD2d 198, 203 (3d Dept. 1982), cert. den. 464 U.S. 896 (1983) (Police conduct not "flagrant" for purposes of attenuation analysis where police followed applicable law at time).

Another factor relevant to attenuation analysis is that Davis was given proper Miranda warnings and waived his rights freely before each confession. (See People v. Jones, 151 AD2d 695 (2d Dept.), app. den. 74 NY2d 897 (1989) (attenuation found where, inter alia, four hours passed and Miranda warnings given twice between illegal arrest and subsequent confession); [*5]People v. Green, 182 AD2d 704 (2d Dept.), app. den. 80 NY2d 831 (1992).

Miranda rights do not automatically remove the taint of a constitutional violation in every case, but they do help. The decisions in Taylor v. Alabama, 457 U.S. 687 (1982) and People v. Byas, 172 AD2d 242 (1st Dept.), app. den. 78 NY2d 963 (1991) each make it clear that giving Miranda rights is an intervening circumstance that can support a finding of attenuation.

Also helpful in purging the taint of any violation was Davis's voluntary decision to confess which, based on the content and tone of both statements, seems was motivated chiefly by Davis's genuine and powerful remorse over an incident that he said was like a "bad dream" which he wished had never happened, and not by the alleged Fourth Amendment "pinging" violation.

Another factor relevant to attenuation is that a full two and one half hours passed between Davis's being picked up and the beginning of his first [FN2] interview. Thus this is not a case where Davis was interrogated at the time and place of his allegedly illegal arrest. Rather, he was first brought to the stationhouse and then made to wait for two and a half hours before being questioned. See Jones, supra.

Another important factor is that the police did not deliberately exploit the allegedly illegal "ping" in order to prompt Davis to confess. This is not a case where illegal police conduct led to the discovery of incriminating information that was then used during defendant's interrogation. In other words, this is not a case where the police confronted Davis with illegally seized evidence and, as a result, he then gave in and confessed. Rather, the only way the police used the purportedly illegal "ping" was simply to find the alleged killer, defendant Davis. See Graham, supra (Attenuation established where, inter alia, no causal connection between illegal police conduct and confession).

Somewhat similarly - - although this distinction is admittedly a fine one - - even if the "ping" here constituted an illegal search, nevertheless Davis was lawfully arrested based on probable cause. Therefore Davis's confessions should not be regarded as the fruit of the illegal [*6]search. See Harris v. New York, 495 U.S. 14 (1990) (Police violated Payton rule by arresting defendant at home without a warrant. Held: Entry into home in order to make the arrest was illegal; but the arrest itself was lawful and subsequent Miranda-ized confessions at stationhouse need not be suppressed because they were not fruit of the illegal entry.)

For all these reasons, the Court finds that if there was a constitutional violation here at all, then any taint was so attenuated as to be wholly purged prior to Davis's two confessions. Accordingly, suppression of those confessions is not appropriate.

That finishes the Court's constitutional analysis of the April 26 "ping". The second question presented is whether the April 26 "ping" violated any relevant statute, and - - if so - - whether that requires the suppression of Davis's confessions (or of any other evidence).

— Trap and Trace Law Violation —

Article 705 of the New York Criminal Procedure Law does require a trap and trace order

for the government to obtain trap and trace data. It can be argued that "pinging" falls within the scope of this statute. This Court does not agree.[FN3] However, this Opinion will assume, but not

decide, that is true, because both the police and the People appear to have operated on that assumption in this case. Yet here, no trap and trace order (or order of any kind) was obtained in advance of the "ping" that located Davis.

The related federal statute is the Stored Communications Act ("SCA") contained in Title 18 of the U.S. Code. The SCA does provide that where exigent circumstances exist - - and such circumstances are carefully and narrowly defined for purposes of the statute as a danger of death or serious physical injury to some person - - no order need be obtained. 18 U.S.C §2702 (c)(4).

Contrary to the People's argument at this hearing, however, there is no provision in the SCA for an after-the-fact, retroactive order. (Indeed, it would be strange for the SCA statute to authorize retroactive warrants; an essential reason for the warrant requirement is to obtain an objective determination before a search is conducted so as to avoid "the shortcomings of hindsight judgments." Beck v. Ohio, 379 U.S. 89, 96 (1964).)

It does not appear that either the SCA or Article 705 was fully complied with here - - assuming that these statutes do apply to "pinging." To begin with, the most important exigency that was presented here was the risk of flight - - that Davis might run away. Although Davis appeared to be a killer, there was no particularized risk that anyone else would be killed or hurt in the immediate future. So the very narrow statutory exigency exception provided for in the SCA seemingly would not apply to this case.[FN4]

Moreover, the application that led to Judge Marcus's April 27 Order here does not even mention the "ping" already done on April 26; and the Order by its terms did not authorize the April 26 "ping." Rather, the Order merely authorized the collection of all historical cell site data for calls made or received on Davis's phone for the period from April 14 to April 27.

Thus, in this Court's view - - to the extent that the New York Trap and Trace Law or the federal Stored Communications Act might apply to "pinging" - - neither statute was fully complied with here. In particular, it is very disturbing that the People's application did not give Judge Marcus the key fact that he needed to know - - namely, that a "ping" had already been done on April 26 which had led to Davis's apprehension.[FN5]

But the question remains - - What should be the consequence of this possible failure to fully comply with the Trap and Trace statute? Does Davis have a tort remedy, for example? Or should the exclusionary rule be used here?

— Exclusion Not Required —

The exclusionary rule is, of course, a rule designed by the courts in order to deter violations of the Fourth, Fifth and Sixth Amendments set out in our federal Bill of Rights. See United States v. Leon, 468 U.S. 897 (1984). However, as already explained, there was no "search" here, and so the Bill of Rights was not violated here. Rather, a trap and trace statute arguably was violated.

There appears to be no authority for the proposition that a violation of New York State's Trap and Trace Law that does not also violate the Constitution should lead to the suppression of [*7]evidence that was either directly, or indirectly, derived from the purely statutory violation.

To the contrary, at least one New York case holds that the exclusion of evidence at a

criminal trial is not the remedy for a purely statutory Trap and Trace Law violation. People v. Moorer, 39 Misc 3d 603 (County Ct. Monroe Co. 2013).

Based on Moorer and the authorities and reasoning very ably set out in Moorer, this Court too finds that a violation of the Trap and Trace statute that is not also a constitutional violation - - which is our situation here - - does not mandate, or even permit, a court to suppress evidence derived from that statutory violation at a criminal trial.

The federal case law is to the same effect. Suppression is not an available remedy for a violation of the Stored Communications Act, 18 U.S.C. §2701 et. seq., unless the Constitution is also violated. U.S. v. Corbitt, 588 Fed Appx 594 (9th Cir. 2014) (sole remedies for violating Act are a damage action or criminal prosecution, but not suppression); accord U.S. v. Powell, 444 Fed Appx 517, 520 (3rd Cir. 2011), cert. den. 132 S. Ct. 1907 (2012); U.S. v. Pembroke, 2015 U.S. Dist Lexis 99959 (D. Mich. 2015). See U.S. v. Clenney, 631 F.3d 658, 667-68 (4th Cir. 2011) (exclusionary rule is not a remedy for statutory violations, unless the statute expressly so provides.)

Therefore the fact that the police and the People here arguably did not fully comply with the Trap and Trace statute and Stored Communications Act does not mean that Davis's two confessions should be suppressed.

— "Ping" Does Not Require Suppression—

In sum, for all the reasons just outlined, the Court holds that the "ping" conducted by the police in this case does not mandate suppression of either of defendant Davis's statements.

Having dealt with this somewhat complex "ping" issue first, the Court's remaining findings of fact and conclusions of law will now be presented in more or less chronological order.

2. GENERAL FINDINGS

To begin with, the Court finds that the People's witnesses for the hearing - - Lieutenant William O'Toole, Detective Sean O'Leary and Detective James Campbell - - were credible witnesses. Each had a straightforward and honest manner, and none displayed any bias against either defendant. Their recollection for detail was fairly good, and they were also careful and candid about acknowledging those details they could no longer recall with certainty due to the passage of time.

Their testimony was internally consistent, consistent with the other evidence, logical, and perfectly plausible. The Court fully credits the testimony of each, and - - to the extent that the Court does not make a specific finding of fact hereafter - - the Court adopts their testimony in full as the Court's own findings of fact.

Next, the Court finds that either very late on the night of April 18, or shortly after midnight on April 19, 2012, a young man named Hwang Yang was shot to death. The shooting took place near a park near JFK High School in the Bronx. The body was found near the [*8]intersection of 232nd Street and Cambridge Avenue. A 911 caller indicated that a silver colored mini-van had been involved, as had a man in a grey "hoodie" sweatshirt.

The police recovered "earbuds" from a cell phone near the victim. The cell phone itself was missing. The victim's family indicated that he usually carried his cell phone (an Apple "I-Phone"). This case therefore appeared to be a case of robbery involving the phone, as well as a murder.

About a week later, on April 25, Apple Security reported to the police that the deceased's phone had recently been "accessed" by a certain 917 number. The police spoke to the woman who held that 917 number.

She ultimately indicated that about a week earlier she had briefly loaned the "SIM" card from her cell phone with the 917 number to a friend named Jimenez.

Mr. Jimenez had been purchasing two cell phones from a man who had advertised the phones on Craig's List. The woman loaned Mr. Jimenez her SIM card for a minute or two so that he could confirm that the two cell phones he was about to purchase were operable. Presumably, when Jimenez placed her SIM card in the victim's phone, that created the data that was later reported by Apple Security.

The police then interviewed Mr Jimenez. He reported that about a week earlier - - that is, shortly after midnight on April 20, almost exactly twenty four hours after the homicide - - he had purchased two "I-Phone" cell phones from a man who had previously advertised them on Craig's List. Mr. Jimenez had saved a screenshot of the Craig's List ad which he provided to the police. The ad was dated April 19 at 10:34 p.m. - - that is, about twenty two hours or so after the homicide. The ad gave the seller's name as Alejandro Campos and gave a 718 phone number for Campos.

The police confirmed that the 718 phone number given in the ad was listed in Campos's name. In addition, the police found an old police report made by Campos when his silver Odyssey mini-van had been broken into. (Notably, as already indicated, a silver mini-van had been seen by a 911 caller very near the time and place of the shooting.) That old police report gave the same 718 phone number for Campos, and a Webb Avenue home address.

Mr. Jimenez and his son provided the police with the 2 phones Jimenez had purchased. The serial number and the "I-MEI" for one I-Phone matched that of the deceased's phone.

3. INITIAL INTERROGATION OF DEFENDANT CAMPOS

Based on the foregoing, the police decided to try to question Mr. Campos about the phone and the murder. On the evening of April 26, they went to the 2850 Webb Avenue address that Campos had given in his old police report. Campos still lived there.

Notably, by the time the police went to Campos's home on the evening of April 26 to first speak with him, the police already knew that within approximately twenty two hours of the 12:30 a.m. April 19 murder, Campos was trying to sell the victim's phone on line. Thus Campos was in recent and exclusive possession of the victim's phone, and Campos was trying to sell that phone very quickly; moreover, Campos did in fact sell that phone to Mr. Jimenez early on April 20, about twenty four hours after the murder.

— Recent and Exclusive Possession—

This recent and exclusive possession of the proceeds of the robbery and murder of Mr. Yang, the Court finds, gave the police at a minimum probable cause to believe defendant Campos guilty of Criminal Possession of Stolen Property; and, in the Court's view, it also gave them probable cause to believe him guilty of armed robbery and some form of homicide. See People v Nunez, 61 AD3d 409 (1st Dept.), leave den. 12 NY3d 927 (2009) (Probable cause existed to arrest defendant based on the fact that defendant possessed property taken in a robbery. His recent and exclusive possession of that property warranted the inference that he was guilty of the robbery, or of criminal possession of stolen property; and the possibility that he might have acquired the property innocently did not negate probable cause, which does not require proof beyond a reasonable doubt.)

— Other Facts Supporting Probable Cause—

Probable cause was further supported here by the fact that a silver van was used in the murder, and Campos owned a silver van.

In addition, sometime during the day on April 26, prior to going to Campos's home, Detective Campbell learned from a fellow Detective named O'Donnell that the second phone sold by defendant Campos to Mr. Jimenez - - that is, the phone not taken from the deceased - - had been identified by serial number as having been stolen in an earlier robbery committed on April 13 of that same year, also in the Bronx.

That April 13 robbery is also charged in the Indictment in this case. In brief, Campbell learned from O'Donnell that O'Donnell was investigating that April 13 robbery, and that the robbery victim there was a man named Keese. (Campbell had also seen some television news coverage concerning the April 13 robbery which included some video relating to that robbery.)

The evidence concerning the April 13 robbery presented at this hearing was very brief and limited. But Detective Campbell did indicate that prior to his going to see Campos on the 26th, Campbell already knew: a) that (as noted) the second phone sold by Campos to Mr. Jimenez had come from the April 13 robbery; b) that the April 13 robbery was committed by several men; c) that one of those men had a gun; and d) that a silver colored van was involved in that robbery too.

The fact that defendant Campos had sold Mr. Jimenez two stolen phones - - phones that were taken in remarkably similar Bronx robberies committed only five days or so apart - - made it even less likely that Campos had an innocent explanation for how he had acquired the stolen phones. This circumstance therefore provided even more support for probable cause to believe that Campos was guilty of participating in the robbery and the killing of Mr. Yang.

Thus the Court finds that as of the time the police decided to interview Campos, they were already authorized to arrest him, because the facts they had already discovered gave them probable cause to believe defendant Campos guilty of Criminal Possession of Stolen Property, Robbery, and perhaps homicide. The mere possibility that Campos might have obtained the dead man's phone in an innocent fashion did not negate this probable cause. It is thus apparent that defendant Campos's Dunaway motion is already destined for failure.

— Campos Voluntarily Comes to Stationhouse —

Detectives Campbell, O'Leary and O'Neill, among others, proceeded to defendant Campos's apartment on Webb Avenue at about 6 p.m. on the evening of April 26. Det. O'Leary was stationed behind the building, in case Campos tried to flee by fire escape.

The police knocked on Campos's door. They identified themselves as police officers and indicated that they wanted to ask Campos some questions. They did not say what subject the questions would be about. Campos invited the detectives inside. Defendant asked two or three times what the detectives' questions would be about, but the police replied in substance that they would rather discuss that back at the stationhouse.

It should briefly be noted that it was suggested in questioning on cross-examination of Detective Campbell that the police coerced defendant Campos's girlfriend to come to the station house at this time, and that they later threatened Campos that he would never see her again unless he confessed. This suggestion was flatly and credibly denied by Detective Campbell.

The evidence indicated that Campos's girlfriend did indeed come to the stationhouse because she was concerned about Campos. (Lieutenant O'Toole recalled that some relatives of Campos also came to the stationhouse later that evening.) But there was no evidence of any kind - - either from Campos, his girlfriend, or any other source - - presented to support the suggestion that she was coerced to come, or that Campos was threatened with never seeing her again. The Court therefore does not credit this suggestion.

Defendant Campos voluntarily agreed to come to the police station. He got dressed and went with the police down to their car in the street. No force was employed, no handcuffs where used, no commands were issued, and there was no indication that defendant was required to come to the station house. Rather, the police politely requested that Campos come, and Campos agreed in a spirit of cooperation.

That Campos was indeed cooperative, as the police witnesses testified, is in part confirmed by the video taken a few hours later, where Campos is still very forthcoming and appears to affirmatively want to help the police in any way that he can.

Thus although - - as noted- - - the police, by the time they went to Campos's apartment, already possessed probable cause that would have justified an arrest, they nevertheless did not arrest Campos at that time. Rather, the evidence clearly and convincingly shows that defendant voluntarily accompanied the detectives to the police station. See J. Brunetti, New York Confessions, Sections 2.05(6)(a) and (b).

Campos arrived at the 50th Precinct stationhouse at about 6:45 p.m. on April 26. He was asked to sit and wait in an interview room. He sat there alone until about 8:30 p.m., with Detective Campbell checking in periodically to make sure that Campos was comfortable.

— Campos's 8:30 Interview—

At about 8:30 p.m. Campos was interviewed jointly by Detectives Campbell and O'Neill. This first interview was not videotaped. The Detectives did write up a summary of Campos's statement, which he signed at about 9:05 p.m. This statement is the first subject of defendant's Huntley and Dunaway motions.

The Court denies the Dunaway motion with respect to this 8:30 statement for the two reasons already referred to. First, the police already possessed probable cause to arrest Campos before they ever went to see him.

Second, the police nevertheless did not arrest Campos at his home, or at any time prior to or during the 8:30 statement. Rather, Campos voluntarily agreed to come to, and remain at, the stationhouse to speak with the detectives.

Detective O'Neill gave Mr. Campos his Miranda warnings in proper fashion, using the printed Miranda form that is in evidence. Mr. Campos indicated that he understood and waived each right and that he was willing to answer questions, as confirmed by the printed Miranda form which Mr. Campos initialed and signed.

In the period leading to this 8:30 interview, and at the time of the interview, Mr. Campos was not threatened, was not promised anything, and was not physically harmed or restrained in any way. He was perfectly comfortable and cooperative throughout. The Detectives were wearing plain clothes and did not display any weapons.

The People have met their burden to prove beyond a reasonable doubt that this first, 8:30 p.m. statement by Campos was both Miranda-compliant and made freely and voluntarily. Accordingly, the Huntley motion is denied as to the 8:30 statement.

4. Substance of Campos's Initial Interrogation

In his initial 8:30 written and oral statement Campos told Detectives O'Neil and Campbell in response to their questions that Campos and Campos's friend "Nick" had set off on the night of the 18th intent on committing a "come up" - - that is, robbing someone. They came across a person walking alone on 231st Street near JFK High School and decided that he would be their victim.

Campos was driving his van. He let "Nick" out near a park at the top of a hill and waited for "Nick" to commit the robbery. As "Nick" left the van, he pulled a gun out of his waistband and displayed it to Campos. Campos waited at the top of a nearby hill and heard a shot. Campos did not see the robbery and murder, however.

A short time later "Nick" returned to Campos's van with the victim's phone. "Nick" and Campos drove off together. The next day "Nick" (and two other friends) accompanied Campos to Queens, where Campos sold the victim's phone (along with a second phone) to a man who had answered a Craig's List ad placed by Campos. Campos and "Nick" split the proceeds from the sale of the dead man's phone.

It was argued (with great heat) by defendant Campos's lawyer at hearing that Campos must have been tricked and/or coerced into giving this 8:30 p.m. statement because, in counsel's view, it is not plausible that Campos, without prompting, would simply give a full confession like Campos's 8:30 statement.

The Court does not find this argument at all persuasive. To begin with, although defense counsel repeatedly asserted that Detective Campbell had implausibly testified that Campos had confessed "out of the blue" without any prompting, that was not in fact the Detective's testimony.

Detective Campbell instead testified in substance that (after Miranda rights were given [*9]and waived) the two Detectives first advised Campos that they were investigating an incident that had taken place at 232nd Street and Riverdale Avenue on April 19; and Campbell further testified that he and his colleague then asked Campos occasional questions throughout the interview. (Hearing Transcript at pp. 140, 141, 144, 161.)

Even more important, it is admittedly true that Campos's 8:30 statement as a legal matter amounted to a full confession that Campos was guilty as an accomplice of armed robbery and felony murder. However, Campos was a layman, not a criminal lawyer. It therefore seems very likely that Campos did not fully understand the legal concepts behind accomplice liability and felony murder.

Thus Campos may well have believed that his 8:30 statement helped Campos to some degree because the statement placed the lion's share of the moral blame for Mr. Yang's death on "Nick", the shooter, rather than on Campos. As a result, it is not at all difficult to believe that Campos made his 8:30 statement without pressure from the police - - because Campos likely believed that his 8:30 statement was, for the most part, helpful to Campos's cause, at least with respect to the most serious potential charge of intentional murder.

Based on Campos's 8:30 statement, the police now had ample probable cause to arrest defendant Campos for the robbery and felony murder of Mr. Yang. However, they still did not tell Campos that he was under arrest, and they did not restrain him in any way.

Based on this interview, the police also had probable cause to arrest "Nick," once they determined who "Nick" was.

5. LOCATING DEFENDANT DAVIS

The police knew from Campos's 8:30 statement that "Nick" lived in defendant Campos's building on Webb Avenue. A check of police records did not disclose any "Nicholas" with an arrest record living at that address. But it did show that "Dominick" (emphasis added) Davis lived at that address. Davis had a significant criminal record. (Although only twenty years old at the time, Davis already had three felony convictions, including a conviction for Robbery in the Second Degree.)

The police showed Campos a mug shot of Davis at about 9:15, and Campos confirmed that Davis was "Nick." (Given the prior relationship between Davis and Campos, Davis has withdrawn any Wade motion as to this single photo identification.) A short time later, Campos provided the detectives with Davis's cell phone number.

The police now had probable cause to arrest Davis for murder and robbery. The detectives asked their technical assistance, or "TARU," unit to try to locate Davis using the phone number for Davis that Campos had provided.

The police decided to proceed without any prior court order, based on what they believed to be exigent circumstances - - namely a) that Davis was dangerous because he had shot and killed someone just a few days earlier, and b) that Davis might flee once he learned that Campos was talking with the police.

Lieutenant O'Toole, the head of Bronx Homicide, explained at hearing that in his considerable experience it usually takes at least six hours to get a court order, and that in this case [*10]it might have taken longer because it was already late at night. For these reasons, the police proceeded without a court order.

At TARU's request, Davis's cell phone provider began to "ping" Davis's phone at about 11:15 p.m. on the 26th. All in all, the phone company "pinged" Davis's phone four times, at about fifteen minute intervals. About five minutes after each "ping", the result would be communicated to the police, in all likelihood by e-mail.

As explained by Lieutenant O'Toole at hearing, the "ping" used the GPS device already inside Davis's phone to provide the location of the cell tower that was closest to Davis's phone at the time of the "ping". The "ping" told the police which cell tower was closest to Davis's phone, and approximately how far away in meters Davis's phone was from that tower.

Lieutenant O'Toole further indicated during his hearing testimony that sometimes the "ping" will also give the direction from the tower to the phone, but he could not recall if that was so in this case. In dense urban areas (like the Bronx) there are many cell towers, O'Toole explained, so the location data provided by this method were fairly precise.

The first "ping", at about 11:15 p.m. on the 26th, placed Davis's phone in the vicinity of the 2850 Webb Avenue address where both Davis and Campos lived. So Detective Campbell, Lieutenant O'Toole, and other officers proceeded to that address and waited outside the building there, but Davis did not appear.

A second "ping" - - presumably at about 11:30 p.m. - - appeared to show that Davis's phone had left the Webb Avenue area (This evidence suggests that either a) Davis had slipped past the police at Webb Avenue undetected, or b) someone else had Davis's phone and was carrying it from Webb Avenue to Davis, who may have already been present at the McDonald's restaurant close to the stationhouse).

TARU then reported that a third "ping"- - presumably at about 11:45 p.m. - - showed Davis's phone was now at 231st Street and Broadway. This happened to be the location of the subway stop where the deceased Mr. Yang had gotten off the subway train just before his murder.A fourth "ping" - - presumably at about midnight - - showed Davis's phone right at, or very close to, the 50th Precinct stationhouse where Campos was being held. So the police at Webb Avenue headed back toward the stationhouse in order to look for Davis in that vicinity.

The 50th Precinct stationhouse is located right across the street from a McDonald's restaurant. Lieutenant O'Toole (and his colleagues) saw a man exit the stationhouse, cross the street, and then get into an already occupied Jeep located in the McDonald's parking lot. The Jeep was only fifty feet or so away from the front door of the stationhouse. Lieutenant O'Toole recognized the man crossing the street as someone who earlier that evening had come to the stationhouse, identified himself as a friend of Campos , and asked questions about Campos.At about the same time TARU officers and a detective from the stationhouse also arrived at the McDonald's lot. The detective, apparently named Radovich, approached the Jeep, saw Davis sitting inside the Jeep along with the man who had just exited the stationhouse, and took Davis to the stationhouse at about 12:30 a.m. - - that is, at about half past midnight in the very early morning of April 27.

Notably, all in all the phone company "pinged" Davis's phone four times over about one [*11]hour that night; and, as a legal matter, only the last "ping" is truly relevant in this case because that was the "ping" that enabled the police to find Davis.

At the time of the fourth "ping" Davis was sitting in a McDonald's parking lot, fully exposed to public view and just across the street from the front door of the 50th Precinct stationhouse. These "pings" disclosed nothing about Davis, or about his phone use, except for the approximate location of Davis's cell phone at the time of each "ping".

The People presented no evidence about precisely how it was that defendant Davis was taken from McDonald's to the stationhouse. It is the People's burden at hearing to prove voluntary accompaniment. This they did not do, because they did not call as a witness at hearing the detective - - Detective Radovich - - who physically brought Davis in.

Thus the Court is compelled to find that Davis was arrested at the time Detective Radovich picked him up, whether or not that is factually true. But the Court has also already found that there was probable cause to arrest Davis at that time based on Campos's prior 8:30 p.m. statement. (This Opinion will elaborate on the law on that point below.)

6. CAMPOS'S 2ND STATEMENT

Meanwhile, at about 9:35 p.m. on the 26th, Detective Campbell and Detective O'Leary interviewed Campos for a second time, once again in the interview room at the 50th Precinct stationhouse. Again, this 9:35 p.m. statement was not videotaped. Rather, a summary was written down by the detectives and then signed by the defendant.

This second 9:35 p.m. statement was not noticed by the People, and the People will not use it on their direct case at trial. However, the People have asked that the Court decide whether it can be used for Harris purposes in the event that Campos testifies at trial. See Harris v. New York, 401 U.S. 222 (1971); People v. Sanzotta, 191 AD2d 1032 (4th Dept. 1993).

Of course, where an un-noticed statement will be used for impeachment purposes, and the defendant challenges the voluntariness of that statement, a hearing should be held on the voluntariness of the statement. The People have the burden to prove the statement was voluntary in the traditional sense, but not that it was Miranda- compliant. The Harris and Maerling, People v Maerling, 64 NY2d 134 (1984) cases so hold.

Here, once again defendant Campos was not subjected to any physical duress, was not restrained in any way, and was perfectly comfortable and cooperative. The detectives wore plain clothes and did not display any weapons. No threats or promises were made. Campos chose to speak voluntarily and of his own free will.

Notably, the detectives did not repeat the Miranda warnings to Campos at 9:35 p.m. Rather, they just reminded defendant of the warnings that had been given at the earlier 8:30 interview. That procedure of merely reminding defendant of his Miranda rights may or may not have been proper. But here that issue does not matter, because Miranda-compliance is not the issue at a Harris hearing.

The Court finds that the People proved beyond a reasonable doubt that this second 9:35 p.m. statement was made freely and voluntarily, and therefore holds that the 9:35 p.m. statement may be used for impeachment purposes.

Notably, in this 9:35 p.m. statement, defendant Campos did acknowledge that he had used a credit card that had been taken in the April 13 robbery of Keese. However, Campos at the same time firmly denied that he had any knowledge that the card was stolen.

The substance of defendant Campos's 9:35 p.m. statement thus further undermines the argument now advanced by his counsel - - namely, that defendant Campos and/or his girlfriend had been coerced to the point where defendant Campos would say whatever the detectives wanted.

Clearly, defendant Campos was still perfectly capable of giving a statement in which he denied guilt and disappointed the detectives. That is proven by Campos's 9:35 p.m. statement in which Campos in effect emphatically denied his guilt in connection with the earlier April 13 robbery of Mr. Keese.

7. CAMPOS'S ARREST

Shortly after giving his second written statement at 9:35 p.m., defendant Campos was taken from the interview room to a holding cell. The precise time is less than clear. Although Detective Campbell contended that Campos was not arrested untill after his video statement was made at 1:38 a.m., the Court does not agree with that legal conclusion.

Once Campos was put inside a holding cell with bars, a reasonable innocent person in Campos's position would have believed he was no longer free to leave. People v. Yukl, 25 NY2d 585 (1969), cert. den. 400 U.S. 851 (1970). Thus defendant Campos was arrested when placed in a cell shortly after his 9:35 p.m. interview concluded.

However, as already indicated, there was ample probable cause for Campos to be arrested by this time, based on his possession of the proceeds of the robbery/murder, and based on Campos's own confession.

8. CAMPOS'S 1:38 VIDEO STATEMENT

At about 1:38 a.m. defendant Campos was interviewed by Assistant D.A. Chicharachit (phonetic spelling) in a different interview room at the stationhouse. This interview was videotaped, and the video was introduced into evidence at hearing.

Prior to this 1:38 a.m. video interview, Campos was being held in a cell. Thus, as already indicated, he was now under arrest. The interview video shows that defendant Campos was perfectly comfortable and in fine shape, both physically and emotionally, throughout. Again, no weapons were displayed, and no threats or promises of any kind were made, either before or during this 1:38 a.m. video interview.

The A.D.A., Detective and cameraman were all present. The A.D.A. administered the Miranda warnings properly, and Campos properly waived his Miranda rights again. Campos then gave a statement that was quite similar in substance to his 8:30 p.m. statement.

The Court finds with respect to the 1:38 a.m. video statement that the People have met their burden to prove beyond a reasonable doubt that the statement was both Miranda — compliant and made freely and voluntarily. Accordingly, the defendant's Huntley motion is denied as to the 1:38 a.m. video statement.

9. SEIZURE OF PROPERTY FROM CAMPOS

After Campos's video statement, Campos was formally told that he was under arrest. At around this time (exactly when is not clear), the police seized Campos's Dish-Mobile cable [*12]company jacket and his phone, as well as other personal effects. (This distinctive jacket is potential evidence relating to the earlier April 13 robbery of the victim Keese.)

There was no written Mapp motion made as to this property, but the People consented that this hearing include that issue. The Court finds that this seizure was a proper search incident to a lawful arrest, California v. Chimel, 395 U.S. 752, rehrng. den. 396 U.S. 869 (1969), and a proper inventory search. Accordingly, Campos's oral Mapp motion is hereby denied.

10. DAVIS'S FIRST INTERROGATION (AT 3A.M.)

As noted, Dominick Davis was brought to the stationhouse at about 12:30 a.m. At about 3 a.m. on April 27 - - that is, about two and a half hours after Davis was brought to the stationhouse - - Davis was interviewed by Detectives Campbell and O'Neill. This 3 a.m. written statement by Davis is the first subject of defendant Davis's Dunaway and Huntley motions.

— Dunaway—

As to Davis's Dunaway motion, the Court has already stated that the police had probable cause to arrest Davis for robbery and murder based on Campos's 8:30 p.m. statement, and based on Campos's identification of defendant Davis's picture shortly thereafter, at about 9:15 p.m.

Probable cause can be supplied by the statement of a defendant's accomplice. People v Berzups, 49 NY2d 417 (1980), rearg. den. 73 NY2d 866 (1989); People v. Perel, 34 NY2d 462, 466 (1974). An accomplice's confession is, by definition, a statement against interest and is therefore usually regarded as reliable See e.g. People v. Doyle, 90 AD3d 780 (2d Dept. 2011), lv. den. 18 NY3d 993 (2012); People v. White, 73 AD3d 820 (2d Dept.), lv. den. 15 NY3d 779 (2010); People v. Sturiale. 262 AD2d 1003 (4th Dept. 1999), lv. den. 94 NY2d 830 (1999).Here Campos's 8:30 p.m. statement was certainly against interest. He freely admitted his guilt of criminally possessing and selling stolen property (the phone) that had belonged to the deceased, and Campos deeply implicated himself in the robbery and murder of Mr. Yang - - although Campos did try to shift most of the moral blame for Yang's death on to the shooter, defendant Davis.

Ordinarily, there is no requirement that an accomplice's statement be corroborated in order to provide probable cause. People v. Riley, 95 AD2d 926 (3rd Dept. 1983). There is, however, authority holding that an accomplice's statement should be "carefully considered" using the Aguilar-Spinelli factors, Aguilar v. Texas 378 U.S. 108 (1964), before being accepted as a basis for probable cause. People v. Johnson, 66 NY2d 398 (1985); Roundtree v. City of New York, 208 AD2d 407 (1st Dept. 1994).

Campos's 8:30 p.m. statement implicating his accomplice Davis easily passes this "careful consideration"/Aguilar test, because that statement was: a) based on Campos's personal knowledge; b) against Campos's interest; and c) most importantly, confirmed and corroborated in many important respects by other evidence already developed by the police before the 8:30 p.m. statement was made by Campos.

Probable cause can be based on information provided by an informant. In that setting the Aguilar-Spinelli "rules" require both that "the informant has some basis of knowledge for the information he has transmitted to the police and that the information is reliable." Johnson, 66 NY2d at 402.

Here, defendant Davis does not dispute that Campos had a reliable basis for the information that Campos transmitted to the police during Campos's 8:30 p.m. statement. After [*13]all, Campos was speaking from personal knowledge. Campos personally participated in the robbery of Mr. Yang that led to Yang's death, and it was Campos who (the very next day) sold the dead man's phone (as confirmed both by the police interview with the buyer Mr. Jimenez, and by Mr. Campos's Craig's List ad).

Defendant Davis does, however, take issue with the proposition that Campos's information was reliable.

In that connection, Davis now contends in substance that Campos had a powerful motive to falsely blame Davis for the murder of Mr. Yang - - a murder that Davis now claims was likely committed by Campos himself. For this reason, Davis argues, Campos's 8:30 p.m. statement naming Davis as the killer was unreliable and did not give the police probable cause to arrest Davis.

Was Campos's 8:30 p.m. statement sufficiently reliable to establish probable cause to arrest Davis?

There is, of course, "no one acid test" for assuring the reliability of an informant's statement; rather, over the years, several factors have been considered by the courts to be adequate indicia of reliability. People v. Rodriguez, 52 NY2d 483 at 489 (1981).

Among the factors that the courts have typically relied upon in order to insure reliability are "whether the informant made an admission against his penal interest, or whether the details of the informant's story have been corroborated by the police." People v. Calise, 256 AD2d 64, 65 (1st Dept. 1998), lv. den. 93 NY2d 851 (1999).

Both these traditional indicia of reliability - - that is, admissions against interest, and corroboration by the police - - were present here, in spades.

To begin with, Campos's 8:30 written (and oral) statement contained many quite significant admissions that were against Campos's penal interest. Although Campos tried to direct the blame for actually shooting Mr. Yang on to defendant Davis, in the course of his 8:30 statement Campos did admit: a) that Campos and Davis had made a plan on the night of April 18 to go out and rob someone; b) that they went driving in Campos's van, saw Mr. Yang, and jointly decided he would be their victim; c) that Campos let Davis out of Campos's van so that Davis could go rob Yang; d) that Campos knew Davis had a gun; e) that Campos waited, close by, for Davis to commit the robbery, so that Campos could drive Davis away afterwards; f) that Campos did drive Davis away after Davis had shot Yang and stolen his phone; and g) that the next day Campos sold the dead man's phone, knowing full well the phone had been stolen in the robbery/ murder of Yang.

The fact that Campos made so many damning admissions against his own penal interest is a classic hallmark of reliability for Aguilar-Spinelli purposes. See People v. Comforto, 62 NY2d 725 (1984) (informant's admission against interest helped to establish his reliability for Aguilar purposes); People v. Stroman, 293 AD2d 350 (1st Dept.) (same), lv. den. 98 NY2d 702 (2002); People v. Smith, 107 AD2d 633 (1st Dept. 1985) (same).

Moreover, Campos's information was also plainly reliable because so much of what he said in his 8:30 statement had been "corroborated by the police". Calise, supra.

For example, in his 8:30 statement Campos said that he drove a silver van on the night of the homicide, and that Davis wore a grey hoodie. This was confirmed because a 911 caller on the night of the murder had described a silver van and a man with a grey hoodie.

In his statement Campos also accurately described the location and time of the murder, and correctly stated that it was a shooting.

Somewhat similarly, in his statement Campos reported that Davis had taken the murder victim's phone. The victim's family had already reported that a phone was taken from the victim.Campos said that he, along with Davis, sold the victim's phone to a man in Queens via Craig's List on the day after the murder. That too was confirmed by Mr. Jimenez's earlier interview with the police, by the saved screenshot of Campos's ad which listed Campos's name and number, and by the phone itself, which Mr. Jimenez had given to the police.

Thus Campos's 8:30 statement naming his accomplice Davis as the killer was clearly reliable because, among other reasons, the statement matched and was corroborated in so may important respects by other evidence previously gathered by the police. See Rodriguez, 52 NY2d at 489 (one indication that account provided by informant Garcia was reliable for Aguilar purposes was that it "corresponded exactly with information already in the possession of the police.")[FN6]

In short, defendant Davis's argument - - that Campos could not be regarded as reliable [*14]because Campos knew that he was in trouble and therefore had a powerful motive to falsely incriminate Davis - - is wrong. What was said in the Rodriguez case about an informant named Garcia applies here with equal force:

Defendant makes much of the fact that Garcia was in custody at the time of his statement, noting that he may have been willing to offer any statement, even a false one, to better his position. However, as we have noted, Garcia's predicament is not necessarily an indicator of his unreliability. In fact, it may well have been a strong motivation for Garcia to tell the truth. In custody on serious charges, Garcia made his statement to assist his captors in uncovering the crime of another. He knew the police would act on it. He must also have known that sending the police on a fruitless errand would avail him little, for this sport too could become part of his record. Hence he had every reason to tell all, and tell it truthfully.

52 NY2d 483 at 490.

The same logic holds true here. Defendant Davis's counsel is right to point out that at the time Campos made his 8:30 statement Campos must have understood that he was in serious trouble because Campos had sold the dead man's phone less than twenty four hours after the murder.

But Campos must also have understood that if Campos tried to falsely blame Davis (or anyone else) for shooting Mr. Yang, Campos would be making his own situation worse, and not better. See Comforto, 62 NY2d 725 at 727: "an individual in the informant's position would not lightly mislead the police and thereby exacerbate his predicament."

Thus, to borrow the language of Rodriguez, Campos had every reason " to tell all, and tell it truthfully"; and there was no good reason why the police should have regarded Campos's 8:30 statement as unreliable.

To the contrary, Campos's 8:30 statement - - full of admissions against interest, and already corroborated in so many crucial respects - - gave the police ample probable cause to go and quickly arrest the alleged killer Davis. Indeed, in this Court's view, any other course would have been grossly irresponsible.

For all these reasons, Davis's Dunaway motion is denied.

It should be noted in this regard that this result should stand even if Campos's arrest was not based on probable cause, because defendant Davis would have no standing to complain that Campos's rights were violated.[FN7] See the Wong Sun case, supra. See also People v. Irby, 162 AD2d 714 (2d Dept), app. den. 76 NY2d 894 (1990).

— Huntley—

The 3 a.m. statement by Davis began with Detective O'Neil properly administering, and Davis properly waiving, his Miranda rights. This is confirmed by the signed Miranda form that is in evidence. Davis was not in any physical distress. No weapons were displayed. No [*15]promises were made, and no restraint was employed.

The People have met their burden to prove beyond a reasonable doubt that this 3 a.m. statement was both Miranda—compliant and made freely and voluntarily. Accordingly, Davis's Huntley motion is denied.

— Substance of 3 a.m. Statement —

In his 3:00 a.m. interview Davis provided a narrative quite similar to that given by Campos. Davis stated that he and Campos (who Davis called "Alex") planned to "catch a come-up" - - that is, to rob someone. "Alex" drove his Odyssey mini-van. Davis wore a grey hoodie and blue jeans. They saw a kid walking on 231st Street from Broadway toward JFK High School. Davis got out of the van and walked towards the kid. Davis demanded, "Give me your stuff." The kid "flinched" as if, in Davis's view, the kid were going for a weapon. Davis "panicked" and shot the kid.

The kid fell and dropped his phone. Davis picked up the phone and then rejoined "Alex" in the Odyssey. The next day they sold the phones to a Spanish man with a teenage boy in Queens.

Davis expressed deep regret that he had killed Yang over a "dumb-ass I-Phone", recalling that he had lost sleep thinking about what he had done, and saying that the incident was like a bad dream which Davis wished had never happened.

11. Davis's 4:30 Statement

At about 4:30 a.m. defendant Davis was interviewed again, this time by A.D.A. Chicharachit on video tape. Initially, Detective O'Leary was present. About halfway into the interview, the A.D.A. asked some questions about who had given Davis his gun. Those questions seemed to bother Davis. At that point Davis requested that Detective Campbell be substituted for Detective O'Leary, and that request was granted. So for the latter part of the interview Detective Campbell was present, rather than Detective O'Leary.

Again, Davis was not threatened in any way, and no promises were made. Defendant Davis was physically comfortable and in fine shape throughout the interview. In fact, on the video he seems remarkably alert and spry for 4:30 in the morning. The A.D.A. administered the Miranda warnings properly, and defendant properly waived his rights. A.D.A Chicharachit conducted this interview employing an exceptionally gentle and polite manner, and asked questions in an open-ended, non-leading fashion.

The People have met their burden to prove beyond a reasonable doubt that this 4:30 a.m. statement was both Miranda-compliant and made freely and voluntarily. Defendant Davis's Huntley motion is therefore denied as to this 4:30 a.m. video statement.

In his 4:30 a.m. statement Davis gave essentially the same narrative as he had in his earlier 3 a.m. statement. As noted above (in Section 1), he essentially volunteered his account, with almost no prompting.

12. WILLIAMS' IDENTIFICATION OF CAMPOS

Defendant Campos has moved to suppress an identification of Campos as a participant in the April 13 robbery of Mr. Keese, an identification made by Campos's former co-defendant, Mr. Williams. (Mr. Williams has entered a guilty plea with respect to the April 13 robbery.)

The People argued prior to hearing that Campos should concede this Wade issue, because Williams and Campos know each other. But defendant Campos refused to so concede.

At hearing, neither side presented any evidence on this Wade issue at all. Accordingly, the Court finds that the People have failed to meet their burden to go forward on this issue, and Campos's Wade motion as to the identification made by Williams is therefore granted. The issue is somewhat academic, however, because it does not appear that the People intend to call Mr. Williams as a witness at trial.

13. DAVIS'S MAPP MOTION

After Davis gave his 4:30 a.m. video statement the police formally advised Davis that he was under arrest. They recovered a cell phone from Davis at around this time.

Defendant Davis did not make a written motion to suppress this physical evidence. However, the People consented that the hearing be expanded to include this subject.

The Court holds that the recovery of Davis's cell phone was a valid search incident to a lawful arrest and also a valid inventory search. Defendant Davis's oral Mapp motion is therefore denied.

14. CAMPOS'S CAR

Finally, it should be noted in passing that the hearing testimony indicated very briefly that Mr. Campos's silver van, which apparently has a distinctive ladder on top, was impounded by the police at some point. There was no evidence as to how, where or when that came about.

Defendant Campos did not make any Mapp motion with respect to this van, and therefore this Decision does not reach the issue whether it was proper to impound the van.

15. CONCLUSION

To sum up - -

A) Campos's Dunaway/Huntley motion to suppress his 8:30 p.m. and 1:38 a.m. statements are denied.

B) Campos's 9:35 p.m. statement may be used for Harris purposes.

C) Campos's oral Mapp motion to suppress his jacket and other personal effects is denied.

D) Campos's Wade motion to suppress an identification by co-defendant Williams is granted.

E) Davis's Wade motion is withdrawn.

F) Davis's Huntley/Dunaway motion to suppress his 3 a.m. and 4:30 a.m. statements are denied.

G) The oral motion to suppress Davis's statements as the fruit of an illegal "ping" is denied.

This Opinion constitutes the Decision and Order of the Court.

Date: Bronx, New York

November 9, 2015

__________________________

Hon. Ethan Greenberg, A.S.C.J. Footnotes

Footnote 1:In brief, the distinction between cell site data and "pinging" is this. Cell site data give the approximate location of a cell phone at the time any call is made or received on that phone. To "ping" a phone is to send a silent electronic impulse to the GPS device inside a cell phone and thereby learn the phone's approximate location at the time of the "ping". No call is required. The cell phone user cannot detect a "ping."

Footnote 2:Two and a half-hours passed between Davis's arrest at 12:30 a.m. and his first unrecorded 3 a.m. interview with Detectives Campbell and O'Neil. However, four hours passed between Davis's arrest and his videotaped 4:30 a.m. interview with A.D.A. Chichrachit and Detective O'Leary. As detailed below, the video tape of the 4:30 interview discloses that the A.D.A. conducted that interview in an exceptionally gentle manner, and generally speaking asked only open-ended, non-leading questions. Defendant Davis - - the video makes clear — essentially volunteered his 4:30 confession, with very little prompting by the questioner. Thus, the case for attenuation is stronger for Davis's 4:30 a.m. video statement than for his 3 a.m. statement. At the same time, however, it can reasonably be argued that once Davis gave his 3 a.m. statement, he was somewhat unlikely to change his story at 4:30 a.m. because "the cat was already out of the bag". See Missouri v. Seibert, 542 U.S. 600 (2004); People v. Tanner, 30 NY2d 102 (1972).

Footnote 3:New York's "Trap and Trace Law" is set out in Article 705 of the Criminal Procedure Law. By its terms, Article 705 governs "trap and trace devices" and "pen registers". CPL§705.05. A "trap and trace device" is defined as a device that identifies the phone number of the source of an incoming phone call (or other incoming electronic communication). CPL §705.00(2). Thus, by way of illustration, if Smith called Jones, a trap and trace device on Jones' phone would show Smith's phone number. A "pen register" is defined as a device that identifies the phone numbers dialed for outgoing calls on a given phone line. CPL §705.00 (1). Thus, by way of illustration, if Jones called Smith, a pen register on Jones's phone would show that Jones dialed Smith's phone number. In other words, the Trap and Trace Law governs devices that identify phone numbers for incoming and outgoing calls. As a literal matter, the Trap and Trace Law says nothing at all about devices that give the physical location of a cell phone. A "ping" would not appear to fit the definition of either a trap and trace device or a pen register. A "ping" does not identity phone numbers for incoming or outgoing calls. Rather, a "ping" gives the approximate physical location of a cell phone. Thus - - although in this Court's experience in practice the People sometimes seek "ping" orders under Article 705- - the actual language of the statute appears to indicate fairly clearly that a "ping" is not governed by the Trap and Trace Law. Similarly, in this Court's experience it is fairly common for the People to apply under Article 705 for an order authorizing the disclosure of historic and/or prospective cell site information. Such information gives the physical location of a cell phone at the time a call is made or received. Once again, such information about the location of a cell phone would not appear to fall within the scope of Article 705. The same confusion exists at the federal level in connection with the Federal "Pen/Trap Statute", 18 U.S.C. §§3121 et seq. That is, the federal courts do not agree whether cell site information falls within the scope of the federal Pen/Trap statute, which is quite similar to New York's Trap and Trace Law. See Annotation, 15 ALR Fed 2d 537 (2015), "Allowable Use of Federal Pen Register and Trap and Trace Devices to Trace Cell Phones and Internet Use". A similar problem is also presented at the federal level in connection with the Stored Communications Act, 18 U.S.C §2701 et seq. The federal courts do not agree as to whether cell site information that gives the physical location of a cell phone fits within the scope of that statute either. See, for example, In Re United States, etc., 534 F. Supp. 2d 585 (W.D. Pa. 2008) (Stored Communications Act defines "electronic communication" so as to exclude any tracking device; this means that the Act does not govern cell site information, which tracks the location and movement of a cell phone), and In Re Application of the United States, etc., 509 F. Supp 2d 76 (D. Mass. 2007) (cell site information does fall within the scope of the Stored Communications Act). It certainly appears to this Court that "pinging" does not fall within the scope of the Stored Communication Act, because a "ping" does not involve any "communication" - - stored or otherwise. All this suggests that it may be time for the Legislature to update and clarify Article 705 in order to try to keep pace with technological developments- - such as the advent of "pinging" - - that have been, and continue to be, very rapid.

Footnote 4:Indeed, the narrow nature of the statutory exigency exception is reflected by the form that TARU uses when it proceeds without a court order on an exigent circumstances basis. The form, which is in evidence, contains standardized language asserting that there is danger of death or physical injury. But the form says nothing about flight as an exigent circumstance.

Footnote 5:In retrospect, however, there may be a valid reason why the April 27 application does not mention the already completed April 26 "ping". The Assistant D.A. at hearing took the position that the intent of the April 27 application (which was made by a different Assistant D.A. more than three years ago) was to seek retroactive authorization of the April 26 "ping". If that was in fact the intention of the April 27 application, then it was indeed plainly wrong for the April 27, 2012 application not to mention the April 26 "ping". However, as noted, the April 27 application was prepared by a different Assistant D.A. than the hearing Assistant. The original Assistant, back in 2012, may well have taken the view that it is not possible to get a retroactive trap and trace order - - because there is no such thing as a retroactive trap and trace order under the law. Thus the original Assistant may well have believed that the April 27 application asked for prospective relief only, and had nothing to do with the already completed April 26 "ping". If that was the original Assistant's belief, then it makes some sense that the April 27 application does not mention the April 26 "ping". On the other hand, the better course in either case still would have been to disclose all relevant facts to Judge Marcus.

Footnote 6:Defendant Davis's counsel did briefly raise an interesting - - but ultimately unpersuasive - - point on this subject at oral argument. Counsel conceded that Campos's statement was corroborated in many important respects. But, said counsel, this was not enough because none of the facts that were corroborated pointed directly to defendant Davis. This argument appears to be correct as a factual matter, but it misapprehends the law.Corroboration of facts provided by an informant is important because it goes to establish the proposition that the informant is speaking truthfully. See Spinelli v. United States, 393 U.S. 410, 427 (1969) (White, J., concurring) ("[B]ecause an informant is right about some things, he is more probably right about other facts.") But there is no requirement - - nor should there be - - that the facts that are corroborated necessarily identify the defendant as the guilty party. Rather, it is sufficient that the corroborated facts are significant ones in the story of the crime under investigation. That is essentially the holding in People v. DiFalco, 80 NY2d 693 (1993). Applying the Aguilar-Spinelli factors, the Court of Appeals held in DiFalco that the veracity of an informant can be established when the police corroborate details provided by the informant, even if those details are not themselves incriminatory of the defendant- - provided that such details are not peripheral and that they fit within the informant's story as activities that are significant and essential to carrying out the crime. Here, the details from Campos's 8:30 statement that were corroborated by the police included many central elements of the crime, including: the time and place of the murder; the description of the victim; the theft of the victim's "I-Phone"; the method of killing (that is, by gunshot); the clothes worn by the shooter; the silver van used in the murder; and how the victim's phone was sold. These are all central, crucially important parts of Campos's story and of the crime. Because all these central facts from Campos's statement were corroborated, it is clear that Campos's statement was reliable for Aguilar purposes - - even though these corroborated facts admittedly did not directly point to Davis as the killer.

Footnote 7:Morever, if for some reason it is determined that probable cause was lacking for Davis's arrest, his subsequent confessions should nevertheless be admissible for essentially the same reasons set both in Section 1 above in connection with the Court's discussion of attenuation and the "ping" issue - - that is , that any violation was from flagrant, that time passed and Miranda warnings were given prior to the confessions, and that there was no deliberate exploitation.