People v Gordon

[*1] People v Gordon 2017 NY Slip Op 27364 Decided on November 3, 2017 Supreme Court, Kings County Murphy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on November 3, 2017
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Shuquan Gordon, Defendant.



03414/16
Martin P. Murphy, J.

The defendant is charged with attempted murder in the second degree; assault in the first degree; attempted assault in the first degree; assault in the second degree; two counts of criminal possession of a weapon in the second degree; criminal possession of a firearm; criminal possession of a weapon in the fourth degree and assault in the third degree.

The People allege that on February 16, 2016, the defendant attempted to cause the death of Travis Browne by means of a firearm. Initially, Mr. Browne told Detective Morra that as he walked northbound on Ocean Avenue, he heard a gunshot and felt pain in his back. He also indicated he had not seen the shooter. However, sometime later, Mr. Browne told the Detective that the person who shot him was an individual he knew as "Ice" with whom he had a fist fight earlier in the day. Assumedly, based on Mr. Browne's identification of that individual, a photo array was generated by Detective Morra. An I-card was thereafter generated by the NYPD for the defendant's arrest.

Detective Brown of the Warrant Squad was tasked with locating the defendant. After searching unsuccessfully for approximately two months at several locations identified as previously used by the defendant, Detective Brown received information from PO Zakiewwicz who indicated he had information that the defendant was staying at his cousin's home, located at 1106 Avenue K, Apt 3W and that the defendant's cell phone number was 347-359-0450. Detective Brown conducted surveillance at the Avenue K location on April 11, 2016 but failed to find the defendant. Later that same day, Detective Brown conferred with ADA Melody Huang who wrote an application for a judicial pen register/trap and trace authorization for the defendant's cell phone number. As conceded by the prosecution, and as part of the application, the People requested and were granted the use of a cell site simulator.

A pen register/trap and trace warrant, which included the use of a cell site simulator, was authorized by the Hon. Alan Marrus, J.S.C. on April 12, 2016.

Based upon the information gathered from this order for the defendant's cell phone, Detective Brown located and arrested the defendant three days later on April 15, 2016, inside of 1540 Sterling Place, Apartment 3E in Brooklyn, an address not previously identified as of any interest to this investigation.

A lineup was held on April 15, 2016 at which time, the defendant was identified by Mr. Brown as the shooter on February 16, 2016.

On March 3, 2017, the defendant filed the instant motion to suppress pursuant to CPL 710.20 (7).The motion seeks suppression of the results of the lineup conducted on April 15, 2016; suppression of any additional observations the police made of the defendant following his arrest on April 15, 2016 as well as any other fruits obtained through the use of a cell site simulator. In addition, defendant requests a hearing on the items of discovery previously requested on January 31, 2017.

The People filed an affirmation in response on March 6, 2017. They argue, without more, that the defendant's motion should be denied, since the court was specifically informed about the use of a cell site simulator and authorized its use.

Following a review of the pertinent court file, the pertinent pen register documents, the submissions of the respective parties and the relevant case law, the defendant's motion to controvert the pen register warrant and suppress the results of the lineup and any other fruits directly derived from defendant's arrest is GRANTED.

The Pen Register Statute is Inapplicable to Cell Site

Simulators

When the government seeks to ascertain the phone numbers of incoming and outgoing calls, it files an application seeking a court order that authorizes a pen register and trap and trace device, respectively. Triggerfish, Stingrays and the Fourth Amendment, by Brian L. Owsley, 66 Hastings Law Journal, 183, December, 2014.

A pen register or trap and trace warrant is authorized under New York's CPL Art. 705.00. According to that Article, a pen register is a device that attaches to a landline phone to identify and record "the numbers dialed or otherwise transmitted" in outgoing and incoming calls." CPL 705.00 (1). In addition, CPL 705.00 (2) defines a trap and trace as a similar device to that of the pen register that identifies the "originating number" for a call. It should be noted, however, that Article 705 does not authorize the gathering of location information using a cell phone's Global Positioning system (GPS), nor does it authorize the gathering of additional information, that might include the content of a phone's calls or text messages by the use of a pen register and/or trap and trace order. In this way, New York's Law is different from federal law which recently has been expanded to include a broader definition of the terms regarding the use of pen register and/or trap and trace orders. See In re Application the US for an Order authorizing, 890 F. Supp 2d 747 [2012] [describing the expanded definitions of pen register and/or trap and trace orders in federal law.

Thus, it is improper under New York Law to authorize the obtaining of any information from a suspect's phone other that the phone numbers dialed or otherwise transmitted in outgoing and incoming calls and/or an originating phone number.

In the present case, it has been conceded that the police obtained judicial authorization for a pen register warrant, addressed to the Sprint Corporation for implementation, that included a request for a newer technological device, known as a cell site simulator or a Stingray device. on page eight, in paragraphs fourteen, fifteen and sixteen, the affiant, ADA Huong, affirmed:

par. 14 In order to facilitate locating the above target phones, it may be necessary to use [*2]a cell site simulator, which is an investigative device capable of broadcasting signals that will be received by the above-captioned mobile telephones or receiving signals from nearby mobile devices, including the above-captioned mobile telephones. This cell site simulator may function in some respects like a cellular tower, except that it will not be connected to the cellular network and cannot be used by a telephone to communicate with other devices. This cell site simulator may send a signal to the above-captioned mobile telephones and thereby prompt it to send signals that include the unique identifiers of the above-captioned mobile telephone. Law enforcement may monitor the signals broadcast by the above-captioned mobile telephone's location, even if it is located inside a house, apartment, or other building.Par. 15 The use of this cell site simulator may interrupt cellular service of mobile telephones or other mobile devices within its immediate vicinity. Any service disruption to non-target devices will be brief and temporary, and we will attempt to limit the interference with such devices. In order to connect with the above-captioned mobile telephone, the cell site simulator may briefly exchange signals with all mobile telephones or other mobile devices in is vicinity. These signals may include mobile telephone identifiers for these other devices. This cell site simulator will not complete a connection with mobile devices determined not to be the above-captioned mobile telephone. Law enforcement will only collect signaling information from the target phone and will make no investigative use of that information, other than to located the target phone. (emphasis supplied)Par. 16 This cell site simulator cannot and will not intercept the content of any telephone calls, text messages, or other electronic communications.

Pursuant to CPL 705.10, a judicial order authorizing a simple pen register device and/or trap and trace device may be issued upon a showing of reasonable suspicion. That contrasts with the higher standard of probable cause required for an eavesdropping warrant. People v Bialostok, 80 NY2d 738. Underlining that difference in required proof is the determination by the Court of Appeals that non-eavesdropping devices do not intrude on a legitimate expectation of privacy because pen register/trap and trace devices only record the phone numbers dialed-outgoing or incoming-and do not disclose more than what phone users voluntarily convey to the telephone company in the ordinary course of business. People v Bialostock, Id.

However, it has been held that the use of a GPS or a location tracking device, as was done here, elevates the level of intrusiveness. In People v Weaver, 12 NY3d 433 [2009], a case that involved the placement of a GPS device inside the bumper of a car, the Court of Appeals determined that GPS technology is far more intrusive of pen register and/or trap and trace devices, noting, "With GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with , when we are and are not with them, and what we do and do not carry on our persons-to mention just a few of the empirical configurations." The Court then held that under the New York State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts constituted a search that was illegal absent a warrant establishing probable cause for its issuance. People v Weaver, Id.

With the requirement of probable cause, a warrant for GPS tracking devices fits into the statutory scheme for eavesdropping and visual surveillance warrants. Accordingly, the People must provide the issuing court with additional information including a showing that normal [*3]investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried, or are too dangerous to employ. See CPL 700.15[4] and 700.20[2][d]. Thus, it was not a mere technical error that the People here failed to apply for a proper search warrant to obtain GPS tracking information.

How Does A Cell Site Simulator Specifically Work and What Information Does It Obtain

A cell site simulator or colloquially, a Stingray, emits a signal that compels cell phones in an area to connect to it rather than to a general service cell tower. After a cell site simulator thus "mimics" a cell tower, nearby cell phones will connect to it and are thereby compelled to send "pings" to the simulator device. The device then calculates the strength of the "pings" until the target phone is located. See US v Lambis, 197 F. Supp 3d 606 [2016]. That connection also enables the device to download telephone numbers and other information related to the cellular phones, such as signal strength, because it typically emits the strongest signal in the nearby area. Owsley, 66 Hastings LJ 183, notes 49 and 54, supra. In addition to downloading information from all the cellular phones located in the area, a cell site simulator can be used to locate a specific cellular phone when the phone owner's phone number is known, but not the location. Owsley, 66 Hastings LJ 183, Id. Documents in the public domain suggest that Stingrays can obtain and record a wide array of data from an individual's cell phone, including highly precise real time cell phone location and the contents of voice and text communications. See eg. Kim Zetter, Turns Out Police Stingray Spy Tools Can Indeed Record Calls. WIRED, Oct. 28, 2015.

Moreover, a cell site simulator collects information directly from a target device, not from a third party service provider. Department of Justice Policy Guidance: Use of Cell Site Simulator Technology, Sept. 3, 2015. In addition, a cell site simulator collects more information than a cellular service provider's records typically contain. Service providers collect and retain records of non-content information about the cellular service towers that a phone connects to when it sends or receives a call, known as "cell sites." Such information, commonly called cell site location information or CSLI is sufficient to locate only the "general vicinity" of a cell phone, but-unlike the information obtained from a cell site simulator — CSLI is not precise enough to identify a specific address much less a particular apartment.

Finally, unlike pen register device information or that provided by the CSLI, a cell site simulator device does not involve a third party. "The question of who is recording an individual's information initially is key." See US v Lambis, supra, citing In re US for Historical Cell Site Data, 724 F.3d 600 [5th Circ. 2013] [distinguishing between "whether it is the Government collecting the information or requiring a third party to collect or store it, or whether it is a third party, of its own accord and for its own purposes, recording the information"]. The Lambis court continued: "For both pen register information and CSLI, the Government ultimately obtains the information from the service provider who is keeping a record of the information. With the cell-site simulator, the Government cuts out the middleman and obtains the information directly." US v Lambis, Id.

By its very nature, then, the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case by the NYPD. See US v Lambis, Id., ["Thus, even though the DEA believed that the use of the cell site simulator would reveal the location of a phone associated with criminal activity, the Fourth Amendment requires the Government to obtain a warrant from a neutral magistrate to conduct that search."]; State v Andrews, 227 Md. [*4]App.350 [Md. Ct. Spec. App. 2016] [ holding that the use of a cell site simulator requires a search warrant based on probable cause.]. Also see People v Weaver, supra.[ " The installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause."].

Therefore, the failure to obtain a proper eavesdropping warrant here prejudiced the defendantsince the most useful-and needed information-ie. his location-was procured from the unlimited use of the cell site simulator. As conceded by the People, the police here were only able to gather the needed location information when they began to track the defendant's phone on or about April12, 2016 with that enhanced technology and only then. The apprehension of the defendant was therefore accomplished only through the use of the improperly obtained information.

As to defendant's request for suppression of any evidence obtained as a direct result of the use of the cell site simulator device, the motion is GRANTED as to the results of the lineup conducted on April 15, 2016 but is DENIED as to any potential evidence of defendant's behavior at the time of his arrest processing.

The foregoing constitutes the decision and order of the court.

Dated: November 3, 2017

Brooklyn, New York

MARTIN P. MURPHY, A.J. S. C.