People v McDuffie

[*1] People v McDuffie 2017 NY Slip Op 27408 Decided on December 8, 2017 Supreme Court, Kings County D'Emic, 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 December 8, 2017
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Joshua McDuffie, Defendant.



4571/16



Legal Aid Society, Brooklyn, New York (Robyn Lear, of counsel) for Joshua McDuffie.

The People are represented in this matter by Eric Gonzalez, Acting District Attorney, Kings County, Brooklyn, New York (Leigh Ann Perez, of counsel).
Matthew J. D'Emic, J.

Defendant is charged with multiple robbery counts and related charges in connection with a series of robberies of individuals responding to a Craigslist advertisement. In each incident the same telephone number was the point of contact.

Defendant moves to controvert a court order issued pursuant to Article 705 of the Criminal Procedure Law that authorized the installation and use of a pen register [FN1] and a trap and trace device [FN2] , and to suppress all evidence which flowed therefrom. Included in the order is the authorization for the police to obtain cell site location information and a direction to the cellular phone provider to provide the police with a wide array of information including precision location, GPS, and past call and billing information.

Defendant claims that in applying for the order, the prosecution and the police intentionally misled the issuing court and "recklessly and knowingly" concealed their true intention to use a cell-site simulator [FN3] which would implicate the constitutional mandates of the [*2]Fourth and Fourteenth Amendments of the United States Constitution and Article I § 12 of the New York State Constitution and would require an eavesdropping warrant pursuant to CPL Article 700. As a consequence of such alleged misconduct, defendant demands the suppression of his statement to the police, the suppression of all identifications, and the suppression of all physical evidence connected to the police wrongdoing.

In the alternative, defendant seeks Bialostok, Franks, and Alfinito hearings to determine whether the order was properly issued under CPL Article 705 and whether the order improperly relied on materially false statements. Defendant also urges the court to grant a Mapp/Dunaway hearing and to order the discovery of all information generated by the order as well as the purported use of the cell-site simulator.

Additionally, defendant argues in his reply papers that even if a cell site simulator was not deceptively employed, the utilization of GPS "pinging"[FN4] technology to locate defendant's mobile phone was an unlawful constitutional search. Here, defendant alleges that according to information provided by the prosecution, his mobile "phone was pinged 3,275 times over fourteen days including 60 times on the day of Mr. McDuffie's arrest".

The People argue that the order was properly issued upon a showing of probable cause, that the police conduct and techniques did not exceed the scope of the order, that a cell-site simulator was never employed, and that, in any event, defendant's statement, the four identifications, and physical evidence were all obtained independently of the court order, through non-electronic means.

Background

This case involves three robberies of buyers responding to an advertisement posted on Craigslist for the sale of a Playstation 4 home video game console. In each instance, the buyer contacted the same mobile phone number and through a series of text messages made arrangements to meet the seller.

The first two robberies occurred in the same vicinity on consecutive dates, February 16 and 17 of 2016. The first complainant met the seller in his car outside of 3900 Kings Highway but before taking possession of the Playstation 4 was robbed at gunpoint of his iPhone, credit cards, passport, insurance card and a quantity of cash. The second complainant took possession of the device in exchange for $290 at Avenue I and Albany Avenue before the seller took it back at knife-point a short time later. Both men reported the robberies to the police, gave physical [*3]descriptions of the seller, and provided the police with the same mobile phone number by which they contacted the seller. In the first incident the assigned detective, Det. Marlon Key, was able to obtain video surveillance footage showing the seller entering the complainant's vehicle and fleeing the scene.

The third incident occurred on April 29, 2016, on East 40th Street between Avenue H and Avenue I and a similar pattern was followed. After several text messages via the same mobile phone number, the complainant met the seller who, this time, asked the complainant to follow him to see a demonstration of the device. As they walked, the seller pulled a gun and robbed the complainant of money, credit cards, his social security card, a NYS permit, and EBT cards. The complainant reported the incident, the phone number and provided a physical description to the police. Det. Key was again able to retrieve video surveillance footage from a nearby gas station which showed the seller nearby before the meeting, the arrival of the complainant, and the subsequent flight of the seller. Several days later the detective learned that attempts had been made to fraudulently use the stolen credit cards.

On April 24, 2016, T-Mobile responded to a subpoena served by the police seeking subscriber information about the mobile phone number used as the contact point. T-Mobile had only limited information on file: that the subscriber's name was Joshua Jackson and his date of birth was October 13, 1994. Efforts to build upon this information by a computer search were unsuccessful.

On May 5, 2016, a judge sitting in the Supreme Court, Miscellaneous Part (Ingram, J.) granted the People's application and issued the subject order upon a finding of probable cause that the user of the cellular phone at issue committed the alleged robberies in this case and that the information sought by the order was material and relevant to the ongoing investigation. The order authorized the use of a pen register and trap and trace device for a period of thirty days. It also directed the cellular phone provider, T-Mobile, to "provide Precision location/GPS Information/E911 Information with latitude and longitude information". The carrier was required, at the request of the police, to "initiate a signal to determine the location of the subject's mobile device" which in conjunction with the authority to use a cellular phone locator device would enable the police to "capture signaling information associated with each transmission to or from the target phone and only the target phone".

On the same day the order was granted, it was transmitted to the NYPD Technical Assistance Response Unit (TARU). On May 11, 2016, a detective from TARU informed Det. Key that "after 12 P.M. on May 11th the Target number was pinging near Avenue K and East 42nd Street in Brooklyn", a determination that was reached using GPS location technology.

At this point, according to the People, Det. Key entered some unspecified investigative information into an NYPD database which disclosed a 2014 prior arrest record for defendant. From this discovery flowed defendant's date of birth and first name which matched the subscriber information provided by T-Mobile. Defendant's arrest photo and his pedigree information were also consistent with the physical descriptions provided by the complainants. Finally, the home address listed for defendant was 1835 Albany Avenue, which was approximately two blocks from the site where the pings had originated and within an eight-block radius of the three robberies.

On May 17, 2016, the complainant in the third incident was shown a photo array [*4]containing defendant's 2014 arrest photograph and identified defendant as the seller who robbed him at gunpoint. Defendant was subsequently arrested on May 24, 2016 at his Albany Avenue basement residence. Among the items recovered was an iPhone with the same mobile phone number as the contact number for the robberies. On the same day, defendant waived his Miranda rights and made a statement to the police, which was followed by all three complainants identifying defendant in separate lineups as the seller who robbed them.

In their affirmation, the People stated that "a trap and trace device was not used or installed in this case". Accordingly, they argued that any discovery "concerning the trap and trace results is moot as it is non-existent". In a supplemental letter dated November 28, 2017, however, the People declared their initial assertion to be "erroneous" and appear to attribute the mistake to "a typographical error". They never mentioned any failure to use or install a pen register and now affirm that a trap and trace device was also employed.

Legal Analysis

The questions before this court are far from original: did the police activities constitute a search within the meaning of the Fourth Amendment and Article I, Section 12, and should the prosecution have applied for a search warrant rather than an order under Article 705 of the Criminal Procedure Law. Neither answer is simple but only the second question can be resolved at this time.

The present statutory framework is ill-suited to dealing with the rush of developing technological changes. The technology in 1988, when the chapter was enacted, relied on pen registers and trap and trace devices used in the surveillance of telephone land-line networks. The devices were only authorized to disclose the telephone numbers that were dialed. While such devices fell within the "newly created definition of electronic communication and thus the use of these devices would be classified as eavesdropping," they were specifically exempted from the eavesdropping covered by Article 700 (Preiser, Practice Commentaries McKinney's Cons. Laws of NY, Book 11A, CPL 705.00 at 421). This chapter was designed "to cover non-aural electronic communications" and as a less intrusive process than aural or oral acquisition, the content of a transmission was neither intercepted or captured (id.). Pinging and GPS location technology did not exist when Article 705 was created.

An order authorizing surveillance under Article 705 may not be issued unless the application is in conformity with the specific requirements of CPL § 705.20 and upon a finding that the application presents specific articulable facts that support the applicant's reasonable suspicion that a designated crime has been, is being, or is about to be committed (CPL § 705.10[1][2]). The application must also demonstrate that the information sought will be relevant to the ongoing investigation of the designated crime (CPL § 705.10[2]). "Thus, lawful use does not require a full demonstration of probable cause to believe that the particular facility is being used or about to be used for commission of a crime, and a demonstration of reasonable suspicion of same will suffice" (Preiser at 421). If, however, the court assessing the People's application determines that the objectives of the application exceed the scope of the statute or evade constitutional protections, a showing of probable cause and the issuance of a warrant would be required (see People v Kramer, 92 NY2d 529, 541 [1998]).

The other statutory electronic surveillance option available to the People is Article 700, Eavesdropping and Video Surveillance Warrants. "Eavesdropping" is defined as wiretapping, [*5]the mechanical overhearing of conversations, or the intercepting or assessing of an electronic communication as defined by Penal Law Section 250.00 (CPL § 700.05[1]). A warrant may issue upon a showing of probable cause to believe that a particularly described person is committing, has committed, or is about to commit a particular designated offense (CPL § 700.15[2]). Probable cause must also be shown that the particular communications concerning the offense will be captured (CPL § 700.15[3]). The application must show normal investigative procedures have been unsuccessful, would not succeed, or are too dangerous (CPL § 700.15[4]). Finally, the People must establish probable cause to suspect criminal activity at the designated location (CPL § 700.15[5]).

In this instance, the People's application was appropriate and the issuing court's assessment of it was proper. The application met the requirements of Sections 705.10 and 705.15 of the Criminal Procedure Law and in fact exceeded the necessary threshold for reasonable suspicion, but the requirements for an eavesdropping warrant were not met.

The state of the law is presently unsettled as to whether an individual has an unqualified expectation of privacy in their location (see United States v Jones, 565 U.S. 400 [2012] [installation of a GPS tracking device as an act of physical trespass on a vehicle and the use of the device to monitor the vehicle's movements over a 28-day period constituted a search] [constant monitoring of defendant's vehicle for a four-week period involved a degree of intrusion that a reasonable person would not anticipate, violating the reasonable expectation of privacy (id. at 430, Alito, J. concurring)] ["at the very least, longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy" (id. at 415, Sotomayor, J. concurring]; Kyllo v United States, 533 U.S. 27 [2001] [obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search]; United States v Knotts, 460 U.S. 276 [1983][person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movement from one place to another]; United States v Skinner, 690 F.3d 772 [6th Cir. 2012][government use of real-time cell phone GPS data to track suspected drug trafficker as he traveled for three days in a mobile home on public roads was not a search]; People v Weaver, 12 NY3d 433 [2009][police must obtain a warrant for the installation of a GPS tracking device on a vehicle to track defendant's movements over a period of 65 days]; People v Hall, 86 AD3d 450 [1st Dept 2011][obtaining cell site location information without a warrant did not violate Fourth Amendment because defendant had no reasonable expectation of privacy while traveling in public during a three-day period]; People v Moorer, 39 Misc 3d 603 [Sup. Ct., NY County 2013][pinging of defendant's cell phone by the cell provider at the request of the police was not a search because defendant had no reasonable expectation of privacy in the transmission of the subscriber's signal necessary to make a call from his cell phone]).

With information that a single mobile phone had been involved in three separate but similar robberies, and that the accounts of multiple complainants strongly indicated that the seller was the same person in each incident, the threshold of reasonable suspicion was easily exceeded. The need to locate the mobile phone was obvious and on its face the People's application gave no reason for the court to anticipate any unconstitutional interference with defendant's expectation of privacy (see In re Application at 540 [unless it can be anticipated that the cellular phone will place the user in his home, there is "no way to know before receipt of location data whether the [*6]phone is physically located in a constitutionally-protected area"]). Thus, in light of the present statutory framework that lags behind the galloping pace of technological advancements, the People's application properly fell within the non-content limits of Article 705.[FN5]

Defendant's claim that the People purposefully deceived the issuing court is speculative and unfounded. He asserts, without any apparent evidentiary support, that the police had "likely" used a cell site simulator because "none of the information requested from T-Mobile had the technological precision necessary to locate and identify the person holding the target phone". Defendant further contends that the police knowingly deceived the court by failing to disclose their true intentions and by depriving the court of the information it needed to make a reasoned decision. According to defendant, the deception was designed to bypass T-Mobile and instead mount a direct invasive search without the requirement of a warrant.

The inferences that defendant asks this court to draw lack any foundation. The motion to controvert the issued order is, therefore, denied. As defendant's allegations lack merit, the need for hearings pursuant to People v Bialostok, 80 NY2d 738 (1993), People v Alfinito, 16 NY2d 181 (1975), and Franks v Delaware, 438 U.S. 154 (1978) is vitiated.

Defendant is, however, entitled to a Mapp/Dunaway hearing to explore whether he was properly arrested with probable cause and whether all of the surveillance evidence was lawfully obtained. Up until a certain point the People recount a methodical investigation that integrated old-fashioned police work and electronic surveillance. However, according to their answer, after capturing the location of defendant's mobile phone on May 11, 2016, Detective Key fed some unspecified accumulated information into the NYPD computer which led to the discovery of defendant's arrest record. As a result of this discovery, the police garnered a photograph of defendant as well as his address. It is, however, unclear what information had been accumulated and how it affected the investigation.

While this court has sustained the viability of the order prospectively and found that the issuing court had not been misled, the scope of the investigation that followed on the heels of the lawful order raises questions. Initially, the People left the impression that the use of GPS tracking technology was relatively benign. Not until defendant submitted reply papers was the court made aware of the possibility of an extended process of trying to locate defendant's phone. The picture of a prolonged effort over two weeks with over 3000 attempts made to contact and locate defendant's mobile phone is much different than the impression created of a few lucky pings pinpointing a location that confirmed other evidence. Because the People have not adequately explained the extent and results of the pinging, a hearing is necessary to fully understand what happened here.

The court cannot ascertain whether the police exceeded the scope of the order during their [*7]investigation without clarifying certain issues in a Mapp/Dunaway hearing. The hearing shall encompass the following issues necessary to determine the range and intensity of the investigation: specifically, the evidence fed into the NYPD computer and whether it was obtained independently of the electronic surveillance; the extent of the pinging of defendant's mobile phone; the period of time during which the pinging occurred; the location results of the pinging; and whether a trap and trace device was actually employed.

With regard to defendant's request for discovery, the People shall provide the complete records and results associated with the pinging of defendant's mobile phone and the use of the pen register and the trap and trace devices. Because defendant has failed to establish that a cell site simulator was used in the investigation, the People are not required to provide any information concerning the use of such a device.

Accordingly, defendant's motion to controvert the court order is denied. Hearings arising out of allegations that the order was infirm are unnecessary and are, therefore, not granted; nor is any suppression granted on that basis. A Mapp/Dunaway hearing is granted.

This decision shall constitute the order of the court.

Dated: December 8, 2017

MATTHEW J. D'EMIC, J.S.C. Footnotes

Footnote 1:A "pen register" is a device that identifies and records outgoing telephone numbers from a particular telephone on a given phone line (CPL 705.00[1]).

Footnote 2:A "trap and trace" device identifies and captures incoming telephone numbers to a particular telephone (CPL 705.00[2]).

Footnote 3:A "cell site simulator" is a device that locates cell phones by mimicking the service provider's cell tower and forcing cell phones to transmit signals to the simulator. The device then calculates the strength of the signals until the target phone is pinpointed (United States v Lambis, 197 F3d 606, 609 [S.D.NY 2016]). The cell site simulator captures information from every transmitting phone within a certain radius and includes the phone's electronic serial number, mobile telephone number, or international mobile subscriber identification. Moreover, it captures the signals from innocent non-target phones as well as from target phones. Accordingly, the court in Lambis held that the warrantless use of cell site simulator to determine that a cell phone is in a residence violates the Fourth Amendment (Lambis at 610-611).

Footnote 4:"Pinging" is a process by which a cellular phone provider may generate location data at any time by sending a signal directing the built-in satellite receiver in a particular cellular telephone to calculate its location and transmit the location data back to the service provider. Pinging is undetectable to the user of the cellular telephone (In re Application, 849 F. Supp. 2d 526, 535 [D. Md. 2011]).

Footnote 5:There is presently a proposed bill before the Legislature that would address the limitations and uncertainty of existing statutes. The New York Electronic Communications Privacy Act (New York Assembly Bill Number A1895A) would require law enforcement to obtain a search warrant for physical or electronic access to electronic device information. The bill will ensure that law enforcement officers get a warrant before they can access sensitive information, including data from personal electronic devices, emails, digital documents, text messages, and location information under normal circumstances.