People v Campos

Annotate this Case

Download PDF

People v Campos 2015 NY Slip Op 32520(U) November 9, 2015 Supreme Court, Bronx County Docket Number: 1684-2012 Judge: Ethan Greenberg Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE BRONX: PART 95 ------------------------------------------------------------------------x THE PEOPLE OF THE ST ATE OF NEW YORK - against ALEJANDRO CAMPOS and DOMINICK DA VIS, Defendants ------------------------------------------------------------------------x DECISION AND ORDER Decision and Order Ind. No.: ~2012 tberf ~~~ "\~v 1 9 201~ SUPREME COURT ClERK'S OFFICE BRONX COUNTY A combined Huntley/Dunaway/ Wade/Mapp/Harris hearing was conducted before this Court over several dates, concluding on October 16, 20 15. On October 21 , 2015, the Court rendered an oral decision. This Opinion states the Court's findings of fac t and conclusions of law once again, this time in more formal written fonn. 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 iden_ified defendant Davis as the actual shooter (and also provided the police with t 1 [* 2] Davis's cell phone 11UI11ber). A short ti1ne later the N.Y.P.D. Technical Assistance, or "TARU", Unit had tl1e pl1one company "ping" Davis's cell phone. Davis's phone was "pinged" at fiftee11 n1i11ute intervals four ti1nes begi11ning at about 11: 15 p.n1. on April 26. 1'he last "pi11g" disclosed Davis's locatio11 - - which was i11 tl1e parking lot of a McDonald's restaurant right across the street fron1 the smne police station wl1ere defendant Campos was still being held a11d interviewed. Tl1is "ping" enabled the police to pick up Davis ii1 that parking lot at about 12:30 a.in. on the 271h; and Davis was Miranda-ized and questioned about two and a 11alfl1ours later, at 3 a.in. Davis was then Miranda-ized and interviewed a seco11d time, this ti1ne on video tape, at about 4:30 a.m. Each tin1e Davis co11fessed to shooting a11d killing the victim. He lamented that 11e l1ad shot Yang over "a dumbass I-Pho11e," a11d said tl1at the incident was like a "bad dream". The police did i1ot obtai11 ai1y trap and trace order or warrm1t prior to "pinging" Davis's phone on tl1e night of April 26 1h. Instead, the next day, April 271" , during regular daytime business hours, tl1e People applied for and obtained an ex parte trap at1d trace order from Judge Marcus oftl1is Cotut. (The application and Order are in evidence; the 1ni11t1tes oftl1e proceeding before Judge Marcus arc also i11 evide11ce.) The April 27th applicatio11 did not reveal, or eve11 l1int, to Judge Marcus that on April 26th the police had already "pinged" Davis's phone and the11 used tl1e "ping" data in order to find Davis and pick hi1n up. Further111ore, the Order did 11ot retroactively authorize t11e April 26 "pi11ging" already conducted by tl1e police. The Order does authorize tl1e collection of all historical cell site data 2 [* 3] for calls 1nade on Davis's pho11e from April 14 to April 27; but the Order does not authorize tl1e police to co11duct any "pi11ging" procedure 011 any date. 1 For these reasons, defendant Davis can and does argue in substance: a) that the April 261h "pit1g" was illegal; b) that the April 26 111 "piI1g" led directly to Davis's a1Test; c) that Davis's arrest in turn led to both 11is 3 a.111. written confession and his 4:30 a.n1. video confession; m1d, d) that botl1co11fessions111ust therefore be suppressed as "the frltit of the poisonous tree." This argun1e11t is a substantial one. Tl1e issue is also an important one, because Davis's confessions are essential to the People's case against Davis 011 the hon1icide charges here. The issue prese11ted breaks down into tlu·ee related questions, as follows. Nurnber one - - Was tl1ere either a Fourth Amendment or a New York State constitutional violation com1nitted 11ere? Ntnnber two - - Was there a violation of Cri1ninal Procedure Law §705, tl1e New Yorl( State Trap and Trace statute, or of the related federal statute, the Stored Comn1ltnicatio11s Act, which is set out in Title 18 of the U.S. Code? A11d nlnnber three - - If tl1ere \.Vere violatio11s, is Sltppression of either, or both, of Davis's co11fessions mandated as a result? Accordi11gly, tl1e first question presented is \vl1ether tl1e April 26 "ping" of Davis's pl1one constituted a violation of either the Fourih Alnendment of the U.S. Co11stitution, or of the 1 111 brief, the distinction between cell site data and "pi11ging" is il1is. Cell site data give tl1e approxin1ate location of a cell pho11e at the tin1e any call is made or received on that phone. To "ping" a phone is to se11d a silent electronic i1npulse to the GPS device inside a cell pl1one and thereby learn the phone's approximate locatio11 at the time of the "ping". No call is required. The cell phone user cannot detect a "ping." 3 [* 4] virtually identical search and seizure provision of the New York State Constitutio11. (N. Y. State Const., A1i. 1, §12). The answer is "No" for the following reasons. - "Ping" Not a Scarcl1First, tl1e Court l1olds that "pinging" defendru1t's cell phone to detern1i11e defendant Davis's location, so that the police COltld then pick hin1 up right a\vay, was not a search or seizure; and this "ping" did i1ot implicate either the Fou1th A1nendment or the New Yorlc State Co11stitution. That is tl1e holding of People v. lvfoorer, 39 Misc.3d 603 (County Ct. fv1onroe Co. 2013) and People v. Wells, 45 Misc.3d 793 (S. Ct. Queens Co. 2014). Moreover, that result is n1a11dated by tl1e logic of l)eople v. I-fall, 86 AD3d 450 (1st Dept. 2011 ), Iv. den. 19 NYJd 961 (2012), cerl. den. 133 S.Ct. 1240 (2013), a 2011 First Department case which is binding on tl1is Court. In I-fall, the Appellate Division 11eld that obtaining a clefcndant's historic cell site infor1natio11 for a three day period pursua11t to a court order did not constitute a "search" within the rnem1ing of the Fou1il1 A111endrnent. Why not? Because, said the Appellate Divisio11, a defendm1t 11as no reasonable expectation of privacy co11cerning his whereaboltts whe11 l1e is out in public. I-Iere the l)olice "pinged" defendant's pl1one 011ly four times over abold one hour, and the last "ping" provided Davis's the11 curre11t locatio11- - which (as 11oted) \Vas i11 the parkit1g lot of a McD011ald's restaurant, wide open to public vievv, right across the street frotn the police statio11. 4 [* 5] That ve1y brief"pinging" procedure was obviously far less intrusive than obtaining three days of cell site inforn1ation - - a process that tl1e Hall court held was not a "sem·ch." Thus, based 011 I-fall, it seen1s evident a.fortiori that a "ping" that disclosed defendant's Davis's n1on1entary presence in a p11blic place was also not a "search" within the rnea11ing of the Fourth An1endment (or Ne\v York State Constitution). The Opinion i11 Hall distinguishes the automobile GPS cases like People v. FVeaver, 12 NY3d 453 (2009), and US. v. Jones, 132 S.Ct. 945 (2012), which each involve secretly placing a GPS clevice on a car ru1d then tracking tl1e car over a prolongecl period. That is a search, say FVeaver and Jones. But obtaini11g cell phone geolocation data in a fashion tl1at does not involve planting a device on defendru1t's property, says Hall, is not a searcl1. Although the case lav..r is far fro1n unanin1ous, see P. Corbett, "Tl1e Fourth Amendment and Cell Site Location Infor1nation: Wl1at Sl1ould We Do \V11ile We Await the Supre1nes?", 8 Fed. Cts. L. Rev. 815 (2015),.111ost otl1er courts agree \vith 1-Iall, and they us11ally p11t fo1ih either one or both of the following t\vo lines of reasoning. First, many courts have said that a cell phone O\Vller b11ys a phone kno\ving that it contains a GPS device, and the ow11er necessm·ily volu11tarily exposes all his cell pl1011e data and cell site info1111ation to his own phone co1npany. 1"herefore he has no reasonable expectation of privacy in that data. See, for exainple, 111 Re Application of.the U.S. for 1-Iistorical C'ell Site Data, 724 F.3d 600, 611-615 (5ili Cir. 2013), and US v. Davis, 785 F.3d 498, 511 (11 'h Cir. 2015). 1"11at is especially true because ordinarily all a cell pho11e ow11er must do in order to avoid l1aving his pl1011e "pi11ged'', or being tracked by cell site data, is to simply turn his pl1011e off. 5 [* 6] Second, n1any courts 11ave also reaso11ed tl1at a person wl10 is in a pltblic place - - like Davis in this case - - has 110 reasonable expectation of privacy it1 his locatio11, whicl1 is already exposed to tl1e 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 (6" Cir.) cert. den. 543 U.S. 856 (2004). (The case law in this area is su1nmarized in T. Sl1eel1an, "Taking the Third Party Doctrine Too Far," 13 Georgetown Law and Pl1blic Policy Review 181(\Vinter2015).) For both tl1ese reasons the brief"pingii1g" done in t11is case - - which revealed Davis' cell pho11e geolocation data just 1011g enough for the police to find Davis at McDonald's - - was 11ot a "searcl1" within the n1eaning of the Foltrth A1nend1nent or Ne\v York State Constitution. Speaking bluntly, if Davis was so unwise as to sit, with his phone tur11ed on, in a busy pttblic parking lot right across the street from the very san1e police officers who were at that mon1ent actively hunting hi1n do\¥11 as a inurder suspect, then Davis cannot credibly argue that he reasonably expected his location to remain private. 'fhus defendant Davis is wrong when he asse1is t11at the April 26 "ping" of his cell pho11e constituted a searcl1 or seizure. Sucl1 a "ping" is not regulated by, and therefore cai1not violate, either the U.S. or Ne\v York State Constitt1tion. - Exigent CircumstancesFltrthern1ore, eve11 iftl1at "ping" were considered a search, tl1e constitutional requiren1en1 of a search wctrrant can, of course, be excused by exigent circumstances. See PeojJ/e v. 6 ~Vatkins, [* 7] 125 AD3d 1364 (4th Dept. 2015) (Exigent circumstances excused a warra11tless "ping", assun1ing - - \Vitholtt deciding - - that the "ping" constituted a searcl1). Exigent circl1111stances f"Fere presented 11ere. Defe11dant Cainpos wall<ed out of his apartment building, acco111pru.1ied by several detectives, i11 full public vie\v, at about 6 p.111. on April 26, and was then driven to the statio11house by the detectives in a police car. Cainpos's accon1plice Davis li\1ed in the san1e building as Campos. Prcslunabl)', 111any neighbors knew both n1en. Once Y'/ord got around to Davis tl1at Ca1npos 11ad gone to the stationl1ol1se a11d was apparently cooperating with the police, Davis - - who Ca111pos ide11tified as the shooter in his 8:30 p.m. staten1e11t - - would ha\'e a powerfl1l reason to flee. Thus the police i1eeded to find Davis just as fast as they could. Ai1d it was particulru.·ly iinportant to prevent Davis's flight because, according to Cru.11pos, just one V11eek. earlier J)avis h.ad shot and killed a n1an. Davis was a dangerous person, to say the least. 1"aki11g the time that \Vould have been 11eeded to apply for a trap and trace order that i1igl1t before first "pinging" Davis's phone might vvell have allowed Davis, the alleged killer, to escape. See US. v. Caraballo, 963 F.Supp.2d 341, 364 (D. Vt. 2013) (need lo quickly find hon1icide suspect \Vas exigent circl1n1stance justifying \Va.rrantless "ping" of suspect' s phone). i\pplyi11g the fa1niliar Dorma11 factors, Dormcrn v. U.S., 435 F.2d 385, 392-3 (D.C. Cir. 1970), People v. Cloud, 168 AD2d 91 (I" Dept.), ajf'd. 79 NY2d 786 (1991 ), there was a strong case for exigent circu1nstances here for tl1e followi11g reasons: 1) tl1e of1'ensc - - n1urder- - vvas grave; 2) there was strong reason to think Davis was guilty, based botl1 011 Can1pos's statement and on all tl1e evidence that co1Toborated that state1nent; 3) there was good reason to t11ir1k Da\1is 7 [* 8] \Vas ar1ned and dangerous, because he had shot the victi1n to death one \Veek earlier a11d had an extensive cri1ninal record, i11cludi11g several felony convictions, see PeojJle v. T'orres, 140 AD2d 564 (2d Dept.), app. den. 72 NY2d 925 (1988) (becal1se n1urder weapon not recovered, there was reaso11 to believe that hon1icide suspect was an11ed ancl dangerous); and 4) as noted, once Davis learned that his friend, 11eigl1bor and acco1nplice Ca1npos appeared to be cooperating with the police, Davis had every reason to flee. The last factor - - flight - - is crucial. It has 1011g been recognized that in dctc1111ining vvhether there exist exige11t circumsta11ces excusing the 11eed to obtai11 a warrant, it is especially i1nportant to see whether there is a likelihood tha1111e SUSJJect will escape if not swiftly apprehended. People v. Marlin, 50 NY2d 1029, 1031, n. 2 (1980); People v. Murray, 277 AD2d 96 (1" Dept. 2000); People v. Cloud, 168 AD2d 91 (1 "' Dept.), aff'd 79 NY2d 786 (J 991 ). Thus, for example, in US. v. Ellis, 461 F.2d 962 (2d Cir.), cert. den 409 U.S. 866 (1972) the Second Circuit approved a wmTantless searcl1 of a car where the officer "tl1ought tl1at the auton1obilc contained evidence which rnight aid in the apprehe11sion of the two criminals still at large, a11d that waiting for a \Varrant 1nigl11 enable them to e·vade capture." (US. v. J~obinson, 533 F2d 578, 583 (D.C. Cir. 1975), cert. den. 424 U.S. 956 (1976), says essentially the same thing.) The Caraballo opi11ion is i11structive on this point It says: Law enforcement reaso11ably belie\'ed there \Vas a seriot1s public safely risk if defendant was not s\viftly apprehended. Cell pl1011e pinging prese11ted a peaceful and apparently lawful i11eans of quickly discerning defe11dant's location in order to i11aintai11 at least surveillance over 11hn and to enl1a11ce lav..' e11forcen1e11t's ability to effect ai1 expeditious and safe arrest. See Dor1nan, 435 F.2d at 392: 'Delay in arrest of an ar111ed [suspect] 1nay well increase da11ger to tl1e con1111lu1ity n1eanwhile, or to tl1e officers at ti1ne of arrest. This consideration, bears 1naterially on tl1e justification for a warrantless searcl1.' Caraballo, 963 F.Supp2d at 364. 8 [* 9] Thus the Court finds first that the April 26 "ping" of Davis's cell phone, wl1ich revealed Davis's location at McDonald's, was not a search at all. A11d the Court also finds that even if this "ping" were considered a search, nevertheless there was no requiren1ent for a l1'ltrra11t beca11se of the exige11t circu1nstru1ce that Davis, the alleged lciller, n1ight well l1ave fled once he learned that his accomplice Campos was talking to the police. Indeed, \vitl1 hindsigl1t, it seen1s quite likely that Davis was ll1 fact very worried about what Campos might be saying to tl1e police; that is probably the reaso11 wl1y Davis \Vas sitti11g in a car directly across the street fro1n tl1e stationhouse where Campos was held, and why Davis also had at least one friend co1ne out of the stationhouse and into Davis's car - -presumably to report to Davis what was goi11g on with Campos it1side the precinct. - Attenuation Assumi11g for argun1ent's sake that the "ping" did violate tl1e Fourth Ame11dment, any taint flo\ving fron1 that violation was nevertheless atte11uated and completely purged by the ti1ne Davis made his 3 a.n1. and 4:30 a.111. confessions. Wong Sun v. United States, 3 71 U.S. 471 (1963), and later cases like I-Jarris v. Ne111 York, 401 U.S. 222 (1971) and People v. Conyers, 68 NY2d 982 (I 986), lay out the factors tlia! should be co11sidered whe11 evaluating attenuation. One in1portant factor is tl1e flagrancy and deliberate character of the original constitutional violation. I-Iere t11e "ping" - - if it was a co11stitutional vio!atio11 at all - - was certainly no! the least bit flagrant or deliberate. As noted, New York case law, and most federal cases too, seem to say that t11e Constitution does not govern "pinging". Thus ifi11 the future the 9 [* 10] law develops so tl1at wl1at the N.Y.P.D. TARU unit did 11ere is ltltin1ately deter111i11ed to constitute a Fou1ih Amend1nent violation, nevertheless the co11duct of the police can 11ardly be called "flagrant" whe11 the police followed \Vhat appeared to be tl1e 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 "flagrm1t" for pllrposes of attenuatio11 analysis vvhere police followed applicable la\v at time). Another factor relevant to attenuation at1alysis is tl1at Davis was given proper Miranda warnings and waived his rights freely before eacl1 confession. (See People v. Jones, 151 AD2d 695 (2d Dept.), app. den. 74 NY2d 897 (1989) (attenuation found where, inter a/ia, four hours passed and Miranda warni11gs given twice between illegal arrest and subsequent confession); People v. Green, 182 AD2d 704 (2d Dept.), app. den. 80 NY2d 831 ( 1992). Miranda rights do i1ot automatically ren1ove the tai11t of a constitutional violation in evety case, but they do help. The decisions iI1 Taylor v. Alaba1na, 457 U.S. 687 (1982) and People v. Byas, 172 AD2d 242 (1" Dept.), app. den. 78 NY2d 963 (1991) each make it clear that giving Miranda rigl1ts is an interveni11g circumstance tl1at can support a fi11ding of attenuation. Also l1elpful in purging tl1e taint of any violation was Davis's voluntary decisio11 to confess which, based on the content and tone ofbotl1 staten1ents, seen1s was 1notivated chiefly by Davis's genuine and powerful ren1orse over an incide11t that l1e said was like a "bad dremn" V11hich he wished l1ad i1ever l1appened, and not by the alleged Follrtl1 Amend1nent "pinging" violation. 10 [* 11] Another factor relevant to attenuation is that a ful! t\VO and one half hours passed between Davis's being picked up and the beginni11g of his first2 interview. 1'hus t11is is not a case \Vhere Davis was interrogated at the time and place ofl1is alleged})' illegal arrest. Rather, he was first bro11ght to the stationhouse and then 1nade to wait for two m1d a half hours before being questio11ed. See Jones, supra. Another i111portant factor is that tl1e police did 11ot deliberately exploit the allegedly illegal "ping" i11 order to pron1pt Davis to co11fess. This is not a case wl1ere illegal police conduct led to t11e discovery of incri1ninating infor1nation t11at was then used d11ring defe11dant's interrogation. In other words, this is 11ot a case wl1ere the police confronted Davis with illegally seized evidence a11d, as a result, he tl1en gave in and confessed. Rather, the only way the police used the purportedly illegal "ping" was si1nply to find the alleged killer, defendm1t Davis. See Graha1n, su1;ra (Atte11uatio11 established wl1ere, inter alia, no causal connection between illegal police conduct and confession). 2 Two a11d a 11alf-hours passed between Davis's aiTest at 12:30 a.In. and l1is first unrecorded 3 a.n1. interview with Detectives Campbell and O'Neil. However,/o-ur 11ours passed between Davis's arrest and 11is videotaped 4:30 a.111. interview with A.D.A. Chichracl1it and Detective O'Leary. As detailed below, the video tape oftl1e 4:30 interview discloses that the A.D.A. conducted that intervie\v in an exceptionally gentle 111anner, and ge11erally speaking asked only open~ended, non-leadi11g questio11s. Defendant Davis - - tl1e video inakes clear~ essentially volunteered his 4:30 confession, witl1 very little prompting by the q11estioner. Thus, the case for attenuatio11 is stronger for Davis's 4:30 a.m. video staten1ent tl1an for 11is 3 a.n1. staten1ent. At the smne tin1e, ho\vever, it can reasonably be m·gued that once Davis gave his 3 a.m. staten1ent, he was somewhat unlikely to change his story at 4:30 a.01. because "tl1e cat was already out of the bag''. See Missouri v. Seibert, 542 U.S. 600 (2004); People v. Tanner, 30 NY 2d 102 (1972). 11 [* 12] Somewhat similarly - - although this disti11ction is adn1ittedly a fine one - - even if the "ping" here co11stitl1ted an illegal search, nevertheless Davis was la1vji1lly arrested based on probable cause. Tl1erefore Davis's confessions should not be regarded as the fruit of the illegal search. See flarris v. Nel-v York, 495 U.S. 14 (1990) (Police violated Payton rule by arresting defendant at home without a warrant. field: E11try into hon1e in order to 1nake the arrest was illegal; bttt tl1e arrest itself was lawful and subseqlte11t lvfiranda-ized confessio11s at stationhouse need not be suppressed because they were t1ot fruit oftl1e illegal entry.) For all these reasons, the Court finds that iftl1ere was a co11stitutional violation l1ere 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 fi11ishes the Court's constitutional rn1alysis oftl1e April 26 "ping". The second question presented is wl1ether the April 26 "pi11g" violated rn1y relevant statute, and - - if so - whether that requires the suppression of Davis's confessions (or of any other evide11ce). -Trap and Trace La"\-v Violation Article 705 of the Nevv York Crhninal Procedure Law does require a trap a11d u·ace order for the governn1ent to obtain trap and trace data. It can be argued that "pingi11g" falls within the scope of this statltte. This Court does not agree. 3 1-lowever, this Opinio11 will assun1e, but not 3 New York's "Trap and Trace Law" is set out in Article 705 oftl1e Criminal Procedure Law. By its tenns, Article 705 gover11s "trap rn1d trace devices" m1d "pen registers". CPL§705.05. A "trap and trace device" is defined as a device that identifies the pl1011e r1un1ber of the source of an i11corni11g pho11e call (or other inco1ning electronic co1nn1unication). CPL 12 [* 13] decide, that is true, because botl1 tl1e police and the People appear to have operated on that §705.00(2). Thus, b;r way of illustration, if Smith called Jones, a trap and trace device on Jones' phone \Vould sho\v Sn1itl1's phone 11umber. A "pen register" is defi11ed as a device that identifies the phone 11umbers dialed for outgoii1g calls on a given pho11e line. CPL §705.00 (1 ). Thus, by way of illustration, if Jones called Smitl1, a pen register on Jones's phone would sl1ow that Jones dialed S1nith's phone number. In other v.rords, the Trap and cfrace La\V governs devices that identify phone nu1nbers for inco1ni11g and outgoing calls. As a literal matter, the 1'rap and Trace Law says 11othing at all about devices that give the physical location of a cell phone. A "ping" would not appear to fit t11e deti11ition of either a trap and trace device or a pen register. A "ping" does not identity pho11e numbers for inco111i11g or outgoii1g calls. Rather, a "ping" gives the approxi1nate physical location of a cell pl1one. Th11s - - although in this Court's experience in practice the People sometin1es seek "pi11g" 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 'frace La\V. Si1nilarly, in tl1is Court's experience it is fairly co1nmon for the People to apply ltnder Article 705 for an order authorizing the disclosure of historic a11d/or prospective cell site information. S11ch information gives the phJ1sical location of a cell phone at tl1e time a call is made or received. Once again, s11ch information about the location of a cell pl1011e would not appear to fall withit1 the scope of Article 705. T11e sru11e confusio11 exists at tl1e 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 wl1ether cell site infor1nation falls within tl1e scope of tl1e federal Pen/1'rap stat11te, \Vhicl1 is quite si1nilar to New York's Trap and Trace Law. See A1motatio11, 15 ALR Fed 2d 537 (2015), "Allowable Use of Federal Pen Register and Trap and Trace Devices to 1'race Cell Phones and Internet Use". A similar problem is also presented at the federal level in connection with the Stored Comn1unications Act, 18 U.S.C §2701 et seq. The federal cou1is do not agree as to whether cell site i11fonnation that gives the physical location of a cell phone fits within the scope of tl1at statute either. See, for exrunple, In Re United ,')fates, etc., 534 F.Supp.2d 585 (W.D. Pa: 2008) (Stored Communications Act defines "electro11ic con1munication" so as to exclude any tracking device; tl1is ineans that the Act does not gover11 cell site information, wl1ich tracks the locatio11 and movement of a cell phone), and In Re Application of the United States, etc., 509 F. S11pp 2d 76 (0. Mass. 2007) (cell site i11forn1ation does fall wi1l1in the scope of tl1e Stored Com1n11nications Act). It certainly appears to this Court that "pinging" does not fall within 1l1e scope of the Stored Co1nmunication Act, because a "ping" does not involve any "co1nmunication" - - stored or otherwise. All this suggests that it 111ay be time for the Legislature to ltpdate and clarify Article 705 in order to try to keep pace witl1 technological developme11ts- - sucl1 as tl1e adve11t of "pinging" that 11ave been, and conti11ue to be, very rapid. 13 [* 14] asslrn1ption in this case. Yet here, no trap and trace order (or order of any ki11d) was obtained in advance of the "ping" that located Davis. "fhe related federal statute is the Stored Con1111u11ications Act ("SCA") co11tained in Title 18 of the U.S. Code. The SCA does provide that where exigent circumstru1ces exist- - and such circu1nstances are carefully and narrowly defined for pl1rposes oftl1e statute as a danger of death or serious physical injury to son1e person - - 110 order need be obtained. 18 U.S.C §2702 (c)(4). Contrary to tl1e People's argu1nent at t11is l1earing, however, there is no provision in tl1e SCA for an after-tl1e-fact, retroactive order. (Indeed, it WOltld be strange for the SCA statute to authorize retroactive warrants; a11 essential reason for the wan·ant require111ent is to obtain an objective determi11atio11 be.fore a search is conducted so as to avoid "the sl1ortco1nings of hindsight judgments." Beck v. Ohio, 379 U.S. 89, 96 (1964).) It does not appear that either the SCA or A1iicle 705 was fully complied witl1 here - ass11ming t11at tl1ese statutes do apply to "pit1ging.'' To begin with, the most important exigency that was presented 11ere was the risk of flight - - that Davis might run away .. Although Davis appeared to be a lcillcr, there was no particularized risk that anyone else would be killed or hurt in the in1n1ediate future. So the very narrow statutory exigency exceptio11 provided for it1 the SCA seemingly would not apply to this case. 4 Moreover, tl1e application tl1at led to Judge 11ru·cus's April 27Order11ere does not even 1nention the "ping" already done on April 26; a11d the Order by its terms did not authorize the 4Indeed, the narrow natl1re of the statutory exige11cy exception is reflected by tl1e forn1 that TARU uses when it proceeds without a court order 011 an exigent circu1nstances basis. Tl1e form, whicl1 is in evidence, contains standardized language asserting that there is da11ger of death or physical injury. But the fonn says nothi11g about flight as an exige11t circumstance. 14 [* 15] April 26 "ping." Rather, the Order n1erely authorized tl1e collection of all historical cell site data for calls made or received on Davis's pl1one for the period fro1n April 14 to April 27. Thus, in this Court's view - - to the extent tl1at tl1e New York 'frap and Trace Law or the federal Stored Communications Act might apply to "pingi11g" - - neither statute \Vas fully co1nplied with here. In particular, it is ve1y disturbing that the People's application did not give Judge Marcus the key fact that he needed to k11ow - - narnely, t11at a "pi11g" had already been done on April 26 which had led to Davis's apprehension. 5 But the question remains - - What should be the co11sequence 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 t1sed here? 5 111 retrospect, however, there inay be a valid reason why the April 27 application does not mention tl1e already co1npleted April 26 "ping". The Assistant D.A. at hearing took the position that the intent of the April 27 application (which was nlade by a differe11t Assistant D.A. inore tl1m1 tllfee years ago) was to seek retroactive authorizatio11 of the April 26 "ping". {[that was in fact tl1e intentio11 oftl1e April 27 application, then it was indeed plainly wrong for the April 27, 2012 application not to nlention tl1e April 26 "pi11g". However, as i1oted, the April 27 applicatio11 was prepared by a different Assistant D.A. than the hearing Assistant. The origi11al Assistant, back i112012, inay well have taken the view that it is not possible to get a retroactive trap and trace order - - because tl1ere is i10 such thing as a retroactive trap and trace order under tl1e law. Thus the original Assistant may well have believed that the April 27 application asked for prospective relief only, a11d had nothing to do with the already completed April 26 "pi11g". Iftl1at \Vas the origi11al Assistant's belief, tl1en it makes some sense tl1at the April 27 application does not inention tl1e April 26 "ping". On the other hand, the better course i11 either case still would have been to disclose all relevant facts to Judge Marcus. 15 [* 16] - Exclusion Not Required The exclusiona1y rule is, of course, a rule designed by the courts in order to deter violations of the Fourth, Fifth and Sixtl1 Amendments set out in our federal Bill of Rights. See United States v. Leon, 468 U.S. 897 (1984). However, as already explai11ed, there was no "search" here, and so the Bill of Rights was not violated here. Rather, a trap and trace statute argltably was violated. Tl1ere appears to be t10 authority for the proposition tl1at a violation of New York State's Trap and Trace Law that does not also violate the Co11slitutio11 should lead to the suppression of evidence that was eitl1er directly, or indirectly, derived fron1 the purely statutory violation. To the contrary, at least one New York case 11olds that tl1e exclusio11 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 }vfoorer and the authorities and reasoning very ably set out in 1Vloorer, this Court too finds that a violation of the Trap and Trace statute that is i1ot also a constitutional violation ~ - which is our situatio11 here - - does not 1nandate, or even per1nit, a court to suppress evide11ce derived frorn that statuto1y violatio11 at a criminal trial. The federal case law is to the smne effect. Suppressio11 is not an available remedy for a violation oftl1e Stored Con1n1unications Act, 18 U.S.C. §2701 et. seq., unless tl1e Constitlttion is also violated. U.S. v. C'orbitl, 588 Fed Appx 594 (91h Cir. 2014) (sole re1nedies for violati11g Act are a damage action or crin1inal prosecution, btt1 not suppression); accord U.S. v. Pov.1e/l, 444 Fed Appx 517, 520 (J'd 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, 631F.3d658, 667-68 (4'" Cir. 16 [* 17] 2011) (exclusionary rule is not a remedy for stcttuto1y violations, unless the statttte expressly so provides.) Therefore tl1e fact that the police and the People here arguably did i1ot fully con1ply witl1 the Trap and Trace statute and Stored Co1n1nunications Act does not 1nean tl1at Davis's two confessions should be st1ppressed. - "Ping" Does Not Require Suppression111 su1n, for all the reasons just outlined, the Court l1olds that the "ping" co11ducted by the police in this case does not mai1date suppression of eitl1er of defendant Davis's statements. I-laving dealt with this somewhat complex "ping" issue first, the Court's re1naining fi11dings of fact and co11clt1sions of law will now be prese11ted in 1nore or less chronological order. 2. GENERAL FINDINGS 'fo begin witl1, the Court finds that the People's witnesses for tl1e hearing - - Lieutenant William O'Toole, Detective Sea11 O'Leary and Detective Jaines Cainpbell - - were credible witnesses. Each had a straightfor\Vard and ho11est i11an11er, and none displayed any bias agai11st either defenda11t. Their recollection for detail was fairly good, a11d they were also careful and candid about ack11owledgi11g tl1ose details they could 110 1011ger recall witl1 certai11ty due to the passage of time. 'fheir testimony was internally consiste11t, consistent with tl1e other evidence, logical, and perfectly plausible. Tl1e Court fully credits the testin1011)' of each, and - - to the exte11t that the 17 [* 18] Court does i1ot n1alce a s1)ecific fi11ding of fact hereafter - - the Court adopts their testirno11y i11 full as the Courl's O\VI1 fi11dings of fact. Next, the Coltrt finds that eitl1er very late on the i1ight of April 18, or shortly after inidnight on April 19, 2012, a young n1an na1ned H\vang Yang was sl1ot to deatl1. The shooting took place 11ear a park near .JFI( High Scl1ool in tl1e Bronx. The body was fou11d near the i11tersection of 23211d Street and Ca1nbridge A venue. A 911 caller indicated tl1at a silver colored mini-van had been involved, as l1ad a 1nan in a grey "11oodic" sweatsl1irt. l'hc police recovered "earbuds" fro1n a cell phone near the victin1. Tl1e cell pho11e itself was n1issing. The victin1's fan1ily indicated that he usually carried his cell phone (an Apple '·IPhone"). This case t11erefore appeared to be a case of robbery i11volving the phone, as well as a 111ltrder. Abollt a "\Veek later, on April 25, Apple Security reported to tl1e police that the dcceased's phone had recently bee11 "accessed" by a certain 917 i1un1ber. Tl1e police spoke to the y.,1omai1 \Vho held that 917 nun1ber. She ultin1ately indicated that abottt a week earlier she had briefly loaned t11e "SIM" card fron1 her cell phone \Vi111 the 917 11un1ber to a friend nan1ed Jin1e11ez. Mr. Ji1ne11ez 11ad been purchasing two cell phones fro1n a man \Vho had adve1iised the phones on Craig's List. The won1ai1 loaned Mr. Jiinenez her SIM card for a i11inute or l\VO so that he could confirm that the two cell pho11es he \vas about to purchase were OJ)erable. Presu111ably, when Jin1enez placed her SIM card in the victin1's pl1one, that created tl1e data that \Vas later reported by Apple Sectirity. 18 [* 19] The police tl1en interviewed Mr Jimenez. He reported t11at about a week earlier - - that is, sho1ily after midnight on April 20, almost exactly t\venty four hours after tl1e homicide - - l1e had purcl1ased tv.ro "l-Pl1011e" cell phones from a inan who 11ad previously advertised tl1en1 on Craig's List. Mr. Ji1nenez had saved a screenshot oftl1e Craig's List ad \..vhich he provided to the police. The ad \Vas dated April 19 at I 0:34 p.m. - - tl1at is, about twe11ty two 11ours or so after t11e homicide. The ad gave the seller's i1a1ne as Alejandro Campos a11d gave a 718 phone number for Can1pos. The police confir1ned that the 718 pl1one nun1ber give11 in t11e ad was listed in Crn.npos's name. In addition, the police fottnd an old police report nlade by Campos wl1en his silver Odyssey mini-van 11ad been broken into. (Notably, as already indicated, a silver n1ini-van 11ad been seen by a 911 caller very near tl1e time and place oftl1e shooti11g.) That old police repo1i gave the same 718 pl1one nu1nber for Campos, and a Webb Aventte 11ome address. Mr. Jhnenez at1d his son provided the police \Vith tl1e 2 phones Ji1nenez had purchased. The serial number at1d tl1e "I-MEI" for one I-Pl1one n1atched tl1at of the deceased's phone. 3. INITIAL INTERROGATION OF DEFENDANT CAMPOS Based on t11e foregoiI1g, the police decided to try to question Mr. Ca1npos about the phone and the 1nurder. On the evening of April 26, they went to the 2850 Webb Ave11ue address that Campos had given in 11is old police repo1i. Campos still lived there. Notably, by the time the police went to Campos's home on the evening of Ap1il 26 to first speak_ with him, tl1e police already knev.r that witl1i11 approximately twe11ty two hours of the 12:30 a.in. April 19 nlurder, Ca111pos was trying to sell the victim's pho11e 011 line. Thus Ca1npos 19 [* 20] was iI1 recent and exclusive possession of the victim's phone, a11d Campos was tryi11g to sell that pl1one very quickly; n1oreover, Can1pos did il1 fact sell tl1at phone to Mr. Jimenez early 011 April 20, about twenty four hours after the murder. - Recent and Exclusive PossessionTl1is rece11t and exclltsive possession of the proceeds of the robbery and murder of Mr. Yang, the Court 1inds, gave the police at a 1nini1num probable cause to believe defendar1t Can11Jos guilty ofCrin1inal Possession of Stolen Property; and, i11 the Court's view, it also gave tl1e1n probable cause to believe hiin guilty of armed robbery and some forn1 of homicide. See People v 1Vunez, 61AD3d409 (1 51 Dept.), leave den. 12 NY3d 927 (2009) (Probable cause existed to arrest defendant based on the fact that defe11dant possessed property taken in a robbery. 1-Iis recent and exclusive possession of that property warranted tl1e inference tl1at he was guilty of the robbery, or of cri1ninal possession of stolen property; and tl1e possibility that 11e might have acquired the prope1ty innocently did not negate probable cause, whicl1 does not require proof beyond a reasonable doubt.) - Other Facts Supporting Probable CauseProbable cause was furtl1er supported here by the fact tl1at a silver van was used in tl1e n1urder, and Campos owned a silver van. In addition, sometin1e dlrring the day on April 26, prior to goi11g to Ca1npos's hon1e, Detective Campbell learned from a fellO\V Detective i1amed O'Donnell that the second phone sold by defendant Can1pos to Mr. Jime11ez - - that is, tl1e phone not taken fro1n tl1e deceased - - 20 [* 21] had been identified by serial number as having been stole11 in an earlier robbery co1n111itted on April 13 of that same year, also in the Bronx. That April 13 robbery is also charged in tl1e Indictment i11 tl1is case. In brief, Campbell learned fron1 O'Dom1ell tl1at 0 1Donnell was investigati11g that April 13 robbery, and that the robbery victim tl1ere was a i11a1111amed Keese. (Campbell l1ad also seen some television 11ews coverage concerni11g t11e Ap1il 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 261h, Cmnpbell already lcnew: a) that (as i1oted) the seco11d phone sold by Cmnpos to Mr. Jimenez had come from t11e April 13 robbery; b) that the April 13 robbery was committed by several 1nen; c) that 011e of those men had a gun; and d) tl1at a silver colored van \Vas i11volved in that robbery too. The fact that defendant Can1pos had sold Mr. Jimenez two stolen pl1011es - - pl1ones that \Vere taken in ren1arkably si1nilar Bronx robberies committed only five days or so apart - - n1ade it even less likely that Catnpos l1ad at1 innocent explanatio11 for how he had acquired the stolen phones. This circu111stance therefore provided even more suppo1t for probable cause to believe that Campos 'vas guilty of participating in t11e robbery and the killing of Mr. Yang. Thus the Court fi11ds that as of the time the police decided to intervievv CamJ)OS, they \>Vere already autl1orized to arrest 11im, because the facts they had already discovered gave then1 probable cause to believe defendant Can1pos guilty of Criminal Possessio11 of Stolen Property, Robbery, and perl1aps ho111icide. The 1nere possibility that Catnpos n1ight have obtained the dead 21 [* 22] i11an's phone in an innocent fasl1ion did not negate this probable cause. It is thus apparent that defe11dant Ca1npos's Dunaway 111otion is already desti11ed for failure. - Campos Voluntarily Comes to Stationhousc Detectives Campbell, O'Leary and O'Neill, a1no11g others, proceeded to defendant Campos's apartme11t on Webb Avenue at about 6 p.m. on the evening of April 26. Det. O'Leary \Vas stationed behi11d the building, in case Campos tiicd to flee by fire escape. The police lrnockcd on Ca1npos's door. They identified then1selves as police officers and indicated that t11e;' wanted to aslc Ca1npos so1ne questions. They did not say wl1at subject the questions would be aboltt. Campos invited the detectives inside. Defendant asked two or three times what tl1e detectives' q11estions would be about, but tl1e police replied ii1 substance tl1at they would rather disclLSS that back at the stationhouse. It should briefly be noted t11at it was Sltggested in questio11ing on cross-exa1ninatio11 of Detective Campbell that the police coerced defendant Cm11pos's girlfriend to co1ne to the station house at this time, and tl1at they later threatened Campos tl1at he \Vould never see her again unless 11e confessed. This s11ggestion was flatly and credibly de11ied by Detective Ca1npbell. The evidence indicated that Campos's girlfriend did i11deed come to tl1e stationl1ouse because she was concerned about Campos. (Lieutenant O'Toole recalled that son1e relatives of Can1pos also came to tl1e stationhouse later that evening.) But there was no evidence of any ki11d " - either fron1 Campos, 11is girlfriend, or any other source - prese11ted to suppo1t tl1e suggestio11 M that she was coerced to co111e, or that Campos was threatened with 11ever seeing her agai11. Tl1e Cou11 therefore does not credit this suggestion. 22 [* 23] Defendant Campos voluntarily agreed to co1ne to the police station. He got dressed a11d vvent witl1 the police down to their car in the street. No force was e1nployed, no handcuffs where used, no co1nn1a11ds \Vere issued, and there was 110 indicatio11 that defe11dru11 was required to co1ne to the station house. Rather, tl1e police politely requested tl1at Campos co1ne, and Campos agreed in a spirit of cooperatio11. That Ca1npos \Vas indeed cooperative, as the police witnesses testified, is in part confirmed by the video taken a fevv hours later, wl1ere Campos is still very tOrthco1ni11g and appears to affir1natively want to 11elp tl1e police i11 any way t11at 11e can. Thus altl1ougl1- - as noted- - - tl1e police, by t11e ti1ne they we11t to Campos's apartment, already possessed probable cause that would have justified an arrest, tl1ey 11eve1theless did not arrest Ca1npos at tl1at time. Rather, the evidence clearly and co11vinci11gly shows that defendant voluntarily accompanied tl1e detectives to the police station. See J. Brunetti, New York Confessions, Sections 2.05(6)(a) and (b). Can1pos arrived at t11e 50th Precinct stationhouse at about 6:45 p.111. on April 26. I-le was asked to sit ru.1d wait in a11 interview roo1n. f-Ie sat there alone until about 8:30 p.m., \Vith Detective Cai11pbell checki11g in periodically to make sure that Ca1npos was comfortable. - Can1pos's 8:30 IntcrvicwAt abottt 8:30 p.1n. Cru11pos was i11terviewedjoi11tly by Detectives Catnpbell and O'Neill. This first interviev.r was not ·videotaped. The Detectives did v.rrite up a smnn1ary of Campos's state111ent, which he signed at about 9:05 p.111. This statement is tl1e first subject of defendant's fluntley ru1d Dunav.1a; n1otions. 1 23 [* 24] The Court denies the Dunatvay n1otion with respect to this 8:30 statement for the two reasons already referred to. First, t11e police already possessed probable cause to arrest Can1pos before t11ey ever we11t to see him. Second, the police nevertheless did not arrest Can1pos at his hon1e, or at any tit11e prior to or during the 8:30 state1nent. Ratl1er, Can1pos voluntarily agreed to co111e to, and ren1ain at, tl1e stationhouse to speak with the detectives. Detective O'Neill gave Mr. Ca1npos his Miranda \Varnings in proper fashion, usi11g the printed lvfiranda for111 that is in evidence. Mr. Can1pos indicated that he understood and waived each right and that he was willi11g to answer questions, as confirmed by the printed lvliranda form \Vl1ich Mr. Can1pos initialed and signed. In the period leadi11g to tl1is 8:30 interview, and at tl1e ti1ne of the interview, Mr. Campos was not threatened, was not pro1nised anything, and was not physically harmed or restrained in any way. I-le was perfectly co1nfortable and cooperative througl1out. The Detectives were wearing plain clotl1es and did not dis1)lay any \Veapons. Tl1e People 11ave n1et tl1eir burden to prove beyond a reaso11able do11bt tl1at this first, 8:30 p.1n. statement by Ca1npos \Vas botl1 Miranda-con1pliant and 1nade freely and voluntarily. Accordingly, tl1e J-Iuntley nlotion is denied as to the 8:30 statement. 4. Substance of Campos's Initial Interrogation In his initial 8:30 \Witten ru1d oral staten1ent Ca1npos told Detectives O'Neil and Can1pbell in response to tl1eir questions that Campos and Carnpos's friend "Niclc" had set off on the night of t11e l 81h intent on co1111nittit1g a "co1ne up" - - tl1at is, robbing so1neone. 'They can1e 24 [* 25] across a perso11 \.Valking alone on 231 st Street near JFK High School and decided that he would be t11eir victin1. Campos was drivi11g his van. 1--Ie let "Nick" out near a park at the top of a hill and waited for "Nick" to conunit t11e robbery. As "Nick" left the va11, he pulled a gun out of his waistband and displayed it to Can1pos. Ca1npos waited at the top of a nearby hill aJ.1d heard a sl1ot. Campos did i1ot see t11e robbery ai1d mttrder, however. A short time later "Niclc" retltrned to Campos's van with the victi1n1s pl1one. "Nick" and Campos drove off together. The i1ext day "Nick" (and t\VO other friends) accon1panied Campos to Queens, \.Vhere Ca1npos sold the victi1n's phone (alo11g with a second pl1one) to a 1nru1 who had answered a Craig's List ad placed by Campos. Crunpos and "Nick" split the proceeds ii·o1n the sale of the dead mru1's phone. It was argued (witl1 great l1eat) by defendant Carnpos's lav..ryer at l1earing that Ca1npos must have been tricked and/or coerced into giving this 8:30 p.1n. statement because, in counsel's view, it is not plausible that Campos, without pron1pting, would sin1ply give a full confession like Can1pos's 8:30 state1nent. The Court does 11ot find t11is argutnent at all persuasive. To begi11 witl1, although defe11se co11nsel repeatedly asserted tl1at Detective Ca1npbell l1ad impla11sibly testified that Ca1npos l1ad confessed "out of the blue" without any pro1npting, tl1at was not in fact tl1e Detective's testin1ony. Detective Ca111pbell instead testified in st1bstru1ce that (after Miranda rights \Vere give11 and waived) the two Detectives first advised Can1pos tl1at they were i11vestigating an incident that 11ad taken place at 232nd Street ru1d Riverdale Avenue on April 19; a11d Campbell further testified 25 [* 26] 1l1at he and his colleague then asked Campos occasional qltestions tl1roughout tl1e interview. (HearingTrm1Scriptatpp. 140, 141, 144, 161.) Eve111nore impo1iant, it is admittedly true tl1at Campos's 8:30 staternent as a legal matter runou11ted to a fltll confession that Can1pos was guilty as fill acco1nplice of arn1ed robbery and felony inurder. 1-Io\vever, Campos was a layn1an, not a crimi11al lawyer. It therefore seerns \'ery likely t11at Can1pos did not fully understand the legal concepts behind acco1nplice liability and felony murder. Thus Campos nlay well have believed tl1at 11is 8:30 staternent helped Crunpos to so1ne degree because the state1nent placed the lion's share of tl1e moral blame for Mr. Yang's death on "Nick", the sl1ooter, rather t11an on Campos. As a resltlt, it is not at all difficult to believe that Catnpos made his 8:30 statement wit11out pressure from the police - - because Campos likely believed that his 8:30 stateme11t was, for the n1ost part, helpful to Crunpos's cause, at least vvitl1 respect to the most serious potential charge of inte11tio11al nlurder. Based on Ca1npos's 8:30 staten1ent, the police now had ample probable cause to arrest defendant Can1pos for the robbery and felony m11rder of Mr. Yang. However, they still did not tell Can1pos that 11e was under arrest, and tl1ey did 11ot restrain 11im in a11y way. Based 011 this i11terview, the police also had probable cause to arrest "Nick," once they detcr1nined who "Nick" was. 5. LOCATING DEFENDANT DAVIS The police knew fro1n Can1pos's 8:30 statement that "Nick" lived in defendant Carnpos's building 011 Webb Avenue. A check of police records did not disclose any "Nicl1olas" with an 26 [* 27] arrest record living at tl1at address. But it did show t11at "Dominick' (emphasis added) Davis lived at tl1at address. Davis had a significant cri1ni11al record. (Although only twe11ty years old at the ti1ne, Davis already 11ad three felony convictions, includi11g a conviction for Robbery in the Seco11d Degree.) The police showed Can1pos a n1ug shot of Davis at about 9: 15, and Campos co11fim1ed that Davis was "Nick." (Give11 the prior relationsl1ip between Davis and Campos, Davis 11as withdra\vn any Wade i11otion as to tl1is single photo ide11tification.) A sl1ort time later, Ca1npos provided the detectives with Davis's cell phone number. The police now 11ad probable cause to arrest Davis for i11urder and robbery. The detectives asked their technical assistance, or "TARU," unit to try to locate Da\1is using t11e pho11e nu1nber ±Or Davis that Campos had provided. The police decided to proceed without any prior court order, based on what they believed to be exigent circun1stances - - nainely a) that Davis was da11gerous because he had shot and killed someone just a fe¥.' days earlier, a11d b) that Davis migl1t flee once he learned that Can1pos was talking with the police. Lieutenant O'Toole, the 11ead ofBro11x 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 it migl1t have take11 longer because it was already late at night. For these reasons, the police proceeded witl1olit a court order. At 1'ARU's request, Davis's cell phone provider began to "pi11g" Davis's phone at about 11: 15 p.m. on the 26 11i. All in all, the phone company "pinged" Davis's phone four ti1nes, at about fifteen inint1te intervals. About five ininutes after each "pi11g", the result would be com1nunicated to the police, in all likelihood by e-mail. 27 [* 28] As explained by Lieute11ant O'Toole at hearing, the "ping" used tl1e GPS device already inside Davis's phone to provide the location of the cell tower that was closest to Davis's phone at the tin1e of the "ping". The "ping" told the police which cell tower was closest to Davis's pl1one, and approxi111ately how far away in meters Davis's phone was from that tower. Lieute11m1t O'Toole fu1tl1er indicated during his hearing testi111ony tl1at sometimes the "ping" \Vill also give tl1e direction fro1n the tower to the pho11e, but he could not recall if that was so in this case. 111 dense urban m·eas (like the Bronx) there are nlany cell towers, O'Toole explained, so the location data provided by this n1ethod were fairly precise. The first "ping", at about 11: 15 p.rn. on the 26th, placed Davis's phone in the vicinity of the 2850 Webb Ave11ue address wl1ere both Davis arld Campos lived. So Detective Campbell, Lieutenant O'Toole, and other officers proceeded to that address m1d waited outside the building there, but Davis did not appear. A second "ping" - - presu1nably at about 11 :30 p.1n. - - appeared to show that Davis's phone had left the Webb Avenue area (Tl1is evidence suggests that eitl1er a) Davis 11ad slipped past the police at Webb Avenue undetected, orb) so1neone else 11ad Davis's pl1one a11d was ca1Tying it fro1n Webb Avenue to Davis, who n1ay have already been present at the McDonald's restaurant close to tl1e station11ot1se). 1'ARU tl1e11 reported that a third "ping"- - presun1ably at abot1t 11 :45 p.m. - - showed Davis's pho11e was now at 231 st Street and Broadway. Tl1is happened to be the location of tl1e st1bway stop where the deceased Mr. Yang had gotten off the subway train just before 11is n1urder. A fourtl1 "ping" - - presu1nably at about 1nidnight - - showed Davis's pl1011e right at, or very close to, the soih Precinct statiorthouse where Can1pos was being held. So the police at Webb Ave11ue l1eaded back toward the stationhouse i11 order to look for Davis i11 that vicinity. 28 [* 29] 1'he 501h Precinct stationhottse is located rigl1t across the street from a McDonald's restaura11t. Lieutenant 0'1"oole (and his colleagues) savv a ina11 exit the stationhouse, cross the street, and t11en get i11to ru1 already occupied Jeep located i11 the McDonald's parking lot. The Jeep was only fifty feet or so away fron1 the front door of the stationhouse. Lieute11ant O'Toole recognized the mai1 crossing the street as so1neo11e wl10 earlier tl1at evening had co1ne to the stationl1ouse, ide11tified hi1nself as a friend of Carnpos , a11d asked questions about Campos. At about the same ti111c TARU officers and a detective from the stationl1ot1se also mTived at t11e McDonald's lot. 1'he detective, apparently na1ned Radovich, approached tl1e Jeep, sa\v Davis sitting inside the Jeep along with the man who had just exited tl1e stationhouse, and took Davis to the stationl1ouse at about 12:30 a.m. - - tl1at is, at about 11alf past n1idnight in tl1e very early inorning of April 27. Notably, all in all the phone company "pinged" Davis's phone four times over about one hot1r that i1ight; and, as a legal n1atter, only tl1e last "pi11g" is truly relevant in this case because tl1at was the "ping" that e11abled the police to find Davis. At the time oft11e fourth "ping" Davis was sitting in a McDonald's parking lot, f11lly exposed to p11blic view and just across the street from the front door of the 50 1h Precinct stationho11se. These "pings" disclosed nothi11g about Davis, or about his phone use, except for the approxin1ate location of Davis's cell phone at the time of eacl1 "pi11g". The People presented 110 evidence about precisely 11ow it was that defendant Davis was taken fro1n McDonald's to tl1e stationl1ouse. It is the People's burde11 at hearing to prove voluntary accompru1i1nent. ll1is they did not do, because t11ey did i1ot call as a witness at hearing the detective - - Detective Radovicl1 - - who physically brougl1t Davis in. 29 [* 30] Thus the Court is con1pelled to find that Davis \Vas arrested at the tin1e Detective Radovicl1 picked him up, whetl1er or not that is factually true. But the Court has also already fow1d that there was probable cause to arrest Davis at that tin1e based 011 Can1pos's prior 8:30 p.1n. statement. (This Opinion \Vill elaborate on the law 011 that point below.) 6. CAMPOS'S 2' 0 STATEMENT Meanwhile, at about 9:35 p.tn. on the 261h, Detective Can1pbell and Detective O'Leary intcrvievved Ca1npos for a seco11d ti111e, once again in the interview room at the S0 11i Precinct statiorihouse. Again, this 9:35 p.m. statement was 1101 videotaped. Rather, a summary was written do\vn by tl1e detectives and then signed by tl1e defenda11t. This second 9:35 p.tn. statement was not noticed by tl1e People, and tl1e People will not use it on their direct case at trial. Ho\vever, tl1e People have asked that the Court decide whetl1er it can be used for J{arris purposes in the event that Ca1npos testifies at trial. See f{arris v. J/eiv York, 401U.S.222 (1971); People v. Sanzolla, 191AD2d1032 (4" Dept. 1993). Of course, where an un-noticed statement will be used for in1peacl1ment purposes, ru1d the defendant challe11ges tl1e voluntariness of that statement, a hearing sl1ould be held on the voluntariness of the statement. The People 11ave tl1e burden to prove the staten1e11t \Vas voluntary in the traditional sense, b11t not that it was Miranda- complia11t. The Harris ru1d Maerling, People v Maerling, 64 NY 2d 134 (1984) cases so hold. Here, once agai11 defe11dant Cmnpos was not subjected to any physical duress, was not restrained in any way, and was perfectly co1nfo1table and cooperative. The detectives \Vore plai11 30 [* 31] clothes and did not display any weapons. No threats or promises were i11ade. Campos chose lo speak voluntarily m1d of his o\vn free will. Notably, the detectives did not repeat the Miranda wm11ings to Can1pos at 9:35 p.1n. Rather, tl1ey jl1st re1ninded defenda11t of the warnings t11at had bee11 given at t11e earlier 8:30 interview. Tl1at procedure ofn1erely re1ninding defendai1t of his Miranda rights n1ay or 1nay not have been proper. But 11ere that issue does not matter, because 1Uiranda-compliance is not the issue at a I-Iarris heari11g. The Court finds that the People proved beyo11d a reasonable doubt that this second 9:35 p.m. statement was n1ade freely and voluntarily, and tl1erefore holds that the 9:35 p.n1. stateme11t inay be used for impeachn1ent purposes. Notably, in this 9:35 p.m. statement, defenda11t Campos did acknowledge ti1at he had used a credit card that 11ad been taken in the April 13 robbery of Keese. However, Campos at the same time firmly denied that he had any knowledge that tl1e card was stolen. Tl1e substance of defendant Campos's 9:35 p.rn. staten1e11t tl1us fu11l1er u11der111ines the argument now advanced by his counsel - - na111ely, tl1at defendant Campos and/or his girlfriend had been coerced to the point where defendant Cmnpos wottld say whatever tl1e detectives wanted. Clearly, defendm1t Can1pos ivas still perfectly capable of giving a statement in which he de11ied guilt and disappointed the detectives. Tl1at is proven by Campos's 9:35 p.m. stateme11t in whicl1 Campos in effect empl1atically denied his guilt in connection with the earlier April 13 robbery of Mr. Keese. 31 [* 32] 7. CAMPOS'S ARREST Shortly after giving his second written stateme11t at 9:35 p.m., defendant Campos was taken fron1 the intervie\V roon1 to a holding cell. The precise tin1e is less tha11 clear. Although Detective Campbell contended that Cruupos was i1ot arrested untill after 11is video statement was 1nade at 1:38 a.111., the Court does 11ot agree with that legal co11clusion. 011ce Catnpos was put inside a holding cell with bars, a reasonable innocent perso11 in Crn.npos's position would 11ave believed he was 110 longer free to leave. People v. Yuk!, 25 NY2d 585 (1969), cert. den. 400 U.S. 851 (1970). Thus defendant Campos was arrested when placed in a cell sho1tly after his 9:35 p.1n. i11terview concluded. 1-Iowever, as already indicated, there was ample probable cause for Cainpos to be arrested by this ti1ne, based 011 l1is possession of the proceeds of the robbery/murder, and based on Campos's own confession. 8. CAMPOS'S 1:38 VIDEO STATEMENT At abo11t 1:38 a.in. defendant Ca111pos was interviewed by Assistant D.A. Cl1icl1arachit (pl1onetic spelling) in a differe11t interview roon1 at the stationhouse. Tl1is interview \Vas videotaped, and the video was introduced into evidence at l1earing. Prior to this I :38 a.m. video interview, Campos was being held in a cell. Thus, as already indicated, he \Vas nO\V under arrest. The interview video sl1ows tl1at defenda11t Campos \Vas perfectly co1ntOrtable and in fine shape, both pl1ysically and en1otionally, througl1out. Again, no 32 [* 33] weapons were displayed, and no threats or promises of any kind were inade, eitl1er before or during this 1:38 a.rn. video interview. 'fhe A.D.A., Detective and can1eraman were all present The A.D.A. administered the Miranda war11it1gs properly, and Cmnpos properly waived his Miranda rights agai11. Campos tl1en ga\'C a statement tl1at was quite similar in substance to his 8:30 p.m. statement. The Cou11 finds with respect to the 1:38 a.in. video staten1e11t that tl1e People 11ave met their burden to prove beyond a reasonable do11bt that t11e state1ncnt was both Jvfiranda ~ co1npliant and 1nade freely and voluntarily. Accordingly, the defendant's Huntley inotion is denied as to tl1e 1:38 a.m. video state1ne11t. 9. SEIZURE OF PROPERTY FROM CAMPOS After Cai11pos's video state1ne11t, Can1pos was formally told that he was under arrest. At around this tin1e (exactly when is not clear), the police seized Campos's Dish-Mobile cable co1npany jacket and his phone, as well as other personal effects. (This disti11ctive jacket is potential evidence relating to tl1e earlier April 13 robbery oftl1e victim I<.eese.) There was no vvritten Mapp 1notion made as to this property, but tl1e People co11sented that this 11earing include tl1at issue. The Court finds that this seizure was a proper search incident to a lawful arrest, California v. Chin1el, 395 U.S. 752, rehrng. den. 396 U.S. 869 (1969), and a proper invento1y search. Accordingly, Carnpos's oral Mapp 1notion is 11ereby denied. 33 [* 34] 10. DAVIS'S FIRST INTERROGATION (AT 3A.M.) As noted, Dominick Davis was brougl1t to the statio11house at about 12:30 a.1n. At aboi1t 3 a.n1. on April 27 - - that is, about two and a half hours after Davis was brought to the stationl1ouse - - Davis was interviewed by Detectives Ca111pbell and O'Neill. 1"his 3 a.m. written staten1ent by Davis is tl1e first subject of defendant Davis's Dunaway and Huntley n1otions. -DunawayAs to Davis's Dunau'ay n1otion, the Cou1i has already stated that the police had probable cause to arrest Davis for robbery and n1urder based on Cainpos's 8:30 p.1n. statement, and based on Catnpos's identificatio11 of defenda11t Davis's picture shortly thereafter, at about 9: 15 p.1n. Probable cause can be supplied by tl1e state111e11t of a defendant's accomplice. People v Berzups, 49 NY2d 417 (1980), rearg. den. 73 NY2d 866 (1989); People v. Pere/, 34 NY2d 462, 466 (1974). An accomplice's confession is, by definition, a staten1ent against i11terest and is therefore usually regarded as reliable See e.g. People v. Doyle, 90 AD 3d 780 (2d Dept 2011), Iv. den. 18 NY3d 993 (2012); People v. White, 73 AD3d 820 (2d Dept), Iv. den. 15 NY3d 779 (201 O); People v. Sluria/e. 262 AD2d 1003 (4'" Dept 1999), Iv. den. 94 NY2d 830 (1999). Here Crunpos's 8:30 p.111. staten1ent \Vas certainly against interest. I-le freely admitted his guilt of cri111inally possessing m1d selling stolen property (the pho11e) tl1at had belonged to the deceased, and Campos deeply in1plicated 11in1self in the robbe1y and murder of Mr. Yang - although Ca1upos did try to shift iuost of the moral blame for Yang's death on to the shooter, defendant Davis. 34 [* 35] Ordinarily, there is no requiten1ent that an acco1nplice's staten1e11t be corroborated i11 order to provide probable cause. People v. Riley, 95 AD2d 926 (3rJ Dept. 1983). There is, however, al1tl1ority holding that an accomplice's state1nent shol1ld be "carefully considered" ush1g the Aguilar-SjJinelli 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 Nev.1 York, 208 AD2d 407 (l" Dept 1994). Carnpos's 8:30 p.m. stateme11t implicating his accon1plice Davis easily passes t11is "careful co11sideratio11"/Aguilar test, becaltse that statement \Vas: a) based 011 Can1pos's perso11al knowledge; b) against Carnpos's interest; m1d c) most irnportm1tly, co11firmed and co1roborated i11 n1any important respects by other evide11ce already developed by the police before the 8:30 p.n1. state1nent was made by Ca1npos. Probable cause can be based on inforn1ation provided by an informant. In t11at setting the Aguilar-Spinelli "rules" require bot11 that "the infor1na11t has some basis ofk11owledge for t11e infor1nation l1e 11as transmitted to the police and that the infor1nation is reliable." Johnson, 66 NY2d at 402. Here, defendant Davis does not dispute that Campos had a reliable basis for the infor111ation that Campos transmitted to t11e police during Ca1npos's 8:30 p.n1. state1nent. After all, Ca1npos was speaking from personal knowledge. Campos perso11ally participated ii1 the robbery of Mr. Yang that led to Yang's deatl1, and it was Campos \Vl10 (the very next day) sold the dead n1an's phone (as confirmed botl1 by the police interview with the buyer Mr. Jimenez, and by 111". Campos's Craig's List ad). 35 [* 36] Defendant Davis does, however, take issue witl1 the proposition that Campos's information was reliable. In that connection, Davis now co11tends in substance that Campos had a powerful motive to falsely blame Davis for the n1urder of Mr. Ya11g - - a mt1rder that Davis 11ow clain1s was likely co1nmitted by Campos himself. For this reason, Davis argues, Carnpos's 8:30 p.n1. statement nami11g Davis as the killer was unreliable and did not give t11e police probable cause to arrest Davis. Was Can1pos's 8:30 p.1n. staten1ent su1Iiciently reliable to establish probable cause to arrest Davis? Tl1ere is, of course, "no 011e acid test" for assuring tl1e reliability of a11 i11forn1ant'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 ). A1no11g tl1e factors tl1at tl1e courts have typically relied upo11 in order to it1sure reliability are "vvhether the info1mant n1ade an admission agai11st his penal interest, or \Vhether the details of the info11nant's story have been corroborated by tl1e police." People v. C'alise, 256 AD2d 64, 65 (l" Dept. 1998), Iv. den. 93 NY2d 851 (1999). Boil1 these traditional i11dicia of reliability - - tl1at is, adrnissio11s against interest, and corroboratio11 by the police - - were present here, in spades. To begin witl1, Campos's 8:30 written (and oral) statement contained niany qttite significant admissions that \Vere agai11st Can1pos's penal interest. Altl1ough Campos tTied to direct the blame for actually sl1ooting Mr. Yang 011 to defendant Davis, in t11e course of his 8:30 36 [* 37] staten1ent Campos did admit: a) that Cmnpos and Davis bad made a plan on tl1e nigl1t of April 18 to go out and rob son1eone; b) tl1at they went drivi11g in Carnpos's van, saw Mr. Ym1g, and jointly decided 11e would be their victim; c) that Ca1npos let Davis out of Ca1npos's va11 so that Davis could go rob Yang; d) that Ca1npos k11ew Davis had a gun; e) that Campos waited, close by, for Davis to con1n1it tl1e robbery, so that Campos could drive Davis away afterwards; f) that Ca1npos did drive Davis away after Davis had shot Y m1g and stolen his pl1one; and g) tl1at the next day Can1pos sold tl1e dead 1na11's phone, k11owing full well tl1e pl1one l1ad been stolen in the robbery/ murder of Yang. The fact that Ca1npos made so 1nany dan1ning admissions agai11st his own penal interest is a classic hall1narlc of reliability for Aguilar-Spinelli ptrrposes. See PeojJle v. Coniforto, 62 NY2d 725 (1984) (inforn1ant's admission against interest helped to establisl1 l1is reliability for Aguilar purposes); People v. Stroman, 293 AD 2d 350 (l" Dept.) (same), Iv. den 98 NY2d 702 (2002); People v. Smith, 107 AD2d 633 (l" Dept. 1985) (same). Moreover, Campos's infonnation was also plainly reliable becal1se so n1ucl1 ofwl1at he said in l1is 8:30 staten1ent had been "co11·oborated by the police". Calise, supra. For example, in his 8:30 statement Campos said that he drove a silver van on the i1ight of the 11omicidc, and that Davis wore a grey hoodie. 'fhis was confir1ned because a 911 caller on the i1igl1t of the n1urder had described a silver va11 and a man with a grey hoodie. In his statement Can1pos also accurately described the location and tin1e of the murder, and correctly stated t11at it was a shooting. 37 [* 38] Some\vhat si1nilarly, in 11is stateme11t Campos reported that Davis l1ad taken tJ1e murder victi1n's phone. The victim's family had already repo1ted tl1at a phone was tal<en fro1n the victin1. Campos said t11at l1e, along witl1 Davis, sold the victim's phone to a man iI1 Queens via Craig's List on the day after t11e inurder. That too was confirmed by Mr. Jimenez's earlier interview with the police, by tl1e saved screens11ot of Campos's ad whicl1 listed Can1pos's name and nu1nber, m1d by the pl1one itself, which Mr. Jin1e11ez 11ad given to the police. Thus Cmnpos's 8:30 statement nan1ing his accomplice Davis as tl1e l<iller wtts clearly reliable because, amo11g otl1er reasons, the staten1ent niatched and was corroborated in so inay impo1tant respects by other evidence previously gathered by the police. See Rodriguez, 52 NY 2d at 489 (one i11dication that accot111t provided by informm1t Garcia was reliable for Aguilar pru·poses was that it "correspo11ded exactly with inforn1ation already i11 the possessio11 of the police.") 6 6 Defenda11t Davis's counsel did briefly raise an interesting - - but ultimately unpersuasive - - point on this subject at oral argun1ent. Counsel conceded that Ca1npos's state1nent was corroborated in inany i1npo11ant respects. B11t, said counsel, this was not enough because none of the facts t11at were corroborated poi11ted directly to defendant Davis. This argun1e11t appears to be correct as a factual n1atter, bt1t it misapprehends the law. Corroboration of facts provided by fill infor1nant is i1nportant because it goes to establish the proposition that tl1e i11formant is speaki11g truthfully. See Spinelli v. United States, 393 U.S. 410, 427 (1969) (White, J., concurri11g) ("[B]ecause a11 info1mant is right about some things, he is more probably right abottt other facts.") But there is no require111e11t - - nor sl1ould there be - that the facts tl1at m·e corroborated necessarily identify the defendai1t as the guilty party. Rather, it is st1fficie11t that tl1e corroborated facts are significant 011es in the story oftl1e crime under i11vestigation. That is essentially the holding in People v. DiFolco, 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 t11e police corroborate details provided by tl1e infor1nant, even if those R 38 [* 39] In sl1011, defendant Davis's argu1ue11t - - that Campos could 11ot be regarded as reliable becal1se Campos knew that he was in trouble and therefore l1ad a powerful iuotive to falsely i11crin1inate Davis - - is wrong. What was said in the Rodriguez case about at1 infor1nant named Garcia applies 11ere with equal force: Defendant iuakes much of the fact that Garcia \Vas in custody at the time of his statement, noting that he i11ay 11ave been willing to offer any statement, even a false one, to better his positio11. I-Iowever, as we l1ave noted, Garcia's predicmnent is not necessarily an indicator of his unreliability. In fact, it inay \Vell have been a strong n1otivatio11 for Garcia to tell the trutl1. In custody on serious charges, Garcia nlade his staten1ent to assist his captors in uncovering the crime of anotl1er. He la1ew tl1e police would act 011 it. 1-Ie must also l1ave lcnown tl1at sending the police on a fruitless errand would avail l1i111 little, for this sport too could beco1ne part of his record. Hence l1e had e\ e1y reaso11 to tell all, a11d tell it trl1thfl1lly. 1 52 NY2d 483 at 490. TI1e same logic 11olds true here. Defendant Davis's co11nsel is right to point out that at the time Campos inade his 8:30 statement Catnpos must 11ave understood that he was in serious trouble because Ca1npos had sold the dead man's phone less tl1an twe11ty four l1011rs after the 1uurder. details are not then1selves incri1ninato1y o.fthe defendant- - provided that such details are not peripheral and tl1at they fit within the informat1t's sto1y as activities that are significat1t and esse11tial to carryi11g out tl1e cri1ne. Here, tl1e details fron1 Campos's 8:30 stateme11t that were corroborated by the police i11cluded many central elements of the crime, incll1ding: tl1e ti1ne and place oft11e m1rrder; the description of the victim; the theft of the victin1's "I-Pho11e"; the nletl1od of killing (that is, by gunshot); the clothes wor11 b)' t11e shooter; the silver vru1 used in the murder; and how the victim's pho11e was sold. Tl1ese are all central, crucially in1portant parts ofCampos's sto1y and oftl1e cri1ne. Because all these ce11tral facts fron1 Campos's statement were corroborated, it is clear that Can1pos's statement lvas reliable for Aguilar purposes - - even though these corroborated facts ad1nittedly did not directly poit1t to Davis as the ldller. 39 [* 40] But Campos must also have understood that if Campos tried to falsely blame Davis (or anyone else) for sl1ooting Mr. Yang, Campos would be making his own situation worse, and not better. See Co1nforto, 62 NY2d 725 at 727: "an individual i11 tl1e infor1nant's position would i1ot lightly n1islead the police and thereby exacerbate his predican1e11t." Thus, to borrow the language of Rodriguez, Ca1npos had every reason" to tell all, and tell it truthfully"; ru1d there was no good reason wl1y t11e police should have regarded Can1pos's 8:30 staten1ent as unreliable. To the contra1y, Ca1npos's 8:30 statement - - full of ad1nissions against i11terest, and already corroborated in so many crttcial respects - - gave the police ample probable cause to go and quickly arrest tl1e alleged killer Davis. Indeed, i11 this Court's view, any other course would have been grossly irresponsible. For all tl1ese reasons, Davis's Duna'.-J ay motion is denied. 1 It should be noted in this regard that this res1ilt sl1ould stand eve11 if Can1pos 's an·est was not based on probable cause, because defe11dant Davis would have no standi11g to con1plain that Ca1npos's rights were violated. 7 See the Wong Sun case, supra. See also Peo1Jle v. Irby, 162 AD2d 714 (2d Dept), app den. 76 NY2d 894 (1990). 7 Morever, if for some reason it is determined tl1at tJrobable cai..1se was lacking for Davis's arrest, his si..1bseque11t confessions should nevertl1eless be admissible for essentially the same reasons set botl1 in Sectio11 1 above in connection with tl1e Court's disc11ssion of attentiation and the "ping" issue - - that is , that any violation was fro111 flagrant, t11at time passed and lvliranda warnings were give11 prior to the confessions, and that tl1ere was 110 deliberate exploitation. 40 [* 41] -HuntleyThe 3 a.m. statement by Davis began \Vith Detective O'Neil properly administering, and Davis properly waiving, his Miranda rights. This is confir1ned by the signed Miranda form tl1at is in evidence. Davis \Vas 11ot in any physical distress. No weapo11s were displayed. No pron1ises were made, and no restraint was employed. The People have 1net their burden to prove beyond a reasonable doubt that this 3 a.in. state1nent was both Miranda-compliant and nlade freely and voluntarily. Accordingly, Davis's Huntley motion is denied. - Substance of 3 a.m. Statemcntln his 3:00 a.In. interview Davis provided a narrative quite si1nila.r to that given by Campos. Davis stated that he and Can1pos (who Davis called "Alex") planned to "catch a comeup" - - that is, to rob so1neone. "Alex" drove his Odyssey mini-van. Davis wore a grey hoodie and blue jem1s. They saw a kid walking on 231 st Street from Broadway toward JFK l-Iigl1 School. Davis got out of the van and walked towards the kid. Davis de1nanded, "Give nle your stuff." The kid "flinched" as if, in Davis's view, t11e kid were going for a weapon. Davis "panicked" and shot the kid. The lcid fell and dropped l1is phone. Davis picked up the phone and then rejoined "Alex" i11 the Odyssey. The next day they sold the phones to a Spanish man with a teenage boy i11 Queens. Davis expressed deep regret that 11e had killed Ya11g over a "dw11b-ass I-Phone", recalli11g tl1at he had lost sleep thinl(ing about what he had done, and saying that the incident was like a bad dream wl1ich Davis wished had 11ever 11appened. 41 [* 42] 11. Da\'is's 4:30 Statement At about 4:30 a.tu. defe11dant Davis was interviewed again, this ti1ne by A.D.A. Chicharachit on video tape. Initially, Detective O'Leary was present. Abot1t halfway into the interview, the A.D.A. asked some questions about who had given Davis his gun. 'fhose questions seen1ed to bother Davis. At that poi11t Davis reqttested that Detective Campbell be substituted for Detective 0 1Leary, and that request was granted. So for the latter part oftl1e interview Detective Campbell was present, rather than Detective O'Leary. Again, Davis was not threatened i11 any way, and 110 pro1nises were made. Defendant Davis was pl1ysically comfortable and i11 fine shape tl1rougl1ot1t the i11terview. In fact, on tl1e video he seems re1narkably alert and spry for 4:30 i11the1norning. The A.D.A. administered the lvfiranda warnings properly, ai1d defe11dant properly waived his rights. A.D.A Chicl1arachit co11ducted this interview e1nploying an exceptionally gentle and polite i11a11ncr, and asked questions in ai1 open-ended, non-leading fasl1ion. The People 11ave met tl1eir burde11 to prove beyond a reasonable doubt that tl1is 4:30 a.m. state1nent was botl1 .A.1iranda-con1pliant and inade freely and voluntarily. Defendru1t Davis's Huntley motion is therefore denied as to this 4:30 a.m. video statement. In l1is 4:30 a.m. statement Davis gave essentially the same narrative as l1e had i11 his earlier 3 a.in. stateme11t. As noted above (in Section 1), he essentially volunteered his accotu1t, \Vith aln1ost no prompting. 42 [* 43] 12. WILLIAMS' llJENTIFICATION OF CAMPOS Defe11dant Ca1npos has moved to suppress m1 identificatio11 of Crunpos as a participa11t in the April 13 robbery of Mr. Keese, an identification made by Campos's for1ner co-defendant, Mr. Williams. (Mr. Willia1ns has entered a guilty plea witl1 respect to tl1e April 13 robbery.) The People argued prior to 11earing t11at Campos sl1ould co11cede this Wade issue, because Willia1ns and Campos know eacl1 other. But defe11dant Can1pos refused to so concede. At heari11g, 11either side presented any evidence on t11is Wctde iss11e at all. Accordingly, the Court fi11ds that tl1e People have failed to meet their burde11 to go forward 011 this issue, and Campos's Wade motion as to the identification made by Williams is therefore granted. The issue is so1newhat acadernic, 11owever, because it does not appear that tl1e People inte11d to call Mr. Willian1s as a witness at trial. 13. DAVIS'S MAPP MOTION After Davis gave 11is 4:30 a.m. video statement tl1e police forn1ally advised Davis that he was under an·est. They recovered a cell pho11e fro1n Davis at arou11d this time. Defendant Davis did not make a written 1notion to suppress t11is physical e\1ide11ce. 1-Iowever, the People consented tl1at the 11earing be expanded to it1cll1de t11is Sltbject. The Court holds that the recovery of Davis's cell pho11e was a valid searcl1 incide11t to a lawful arrest and also a valid inventory searcl1. Defendant Davis's oral j\,1app motio11 is tl1erefore de11ied. 43 [* 44] 14. CAMPOS'S CAR Finally, it should be noted in passing tl1at tl1e 11eari11g testimony indicated very briefly that Mr. Ca1npos's silver van, whicl1 apparently has a disli11ctive ladder 011 top, was impounded by the police at son1e point. There \Vas no evicle11ce as to how, where or when that can1e abo11t. Defendant Can1pos did not 111ake any MajJ}J motion with respect to this van, and therefore this Decision does not reacl1 tl1e issue \.vhether it was proper to impo11nd the van. 15. CONCLUSION To sum up- A) Campos's Dunavvay/J{untley 1notion to suppress 11is 8:30 p.m. and 1:38 a.m. stateme11ts are denied. B) Can1pos's 9:35 p.1n. statement 1nay be used for liarris purposes. C) Can1pos's oral Mapp inotion to suppress his jacket and other personal effects is denied. D) Can1pos's Wltde motio11 to suppress an identification by co-defendm1t Williams is grai1ted. E) Davis's TVltde motion is witl1drav-.'n. F) Davis's fluntley/Duna1va)11notion to suppress his 3 a.In. and 4:30 a.n1. state111ents are de11ied. G) "rhe oral motio11 to suppress Davis's state111ents as the fruit of m1 illegal "ping" is denied. This Opi11ion constitutes the Decision and Order of the Court. Date: Bro11x, New York November 9, 2015 Hon. Ethan Gree11berg, A.S.C.J. 44

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.