People v Davis

[*1] People v Davis 2021 NY Slip Op 21138 Decided on May 17, 2021 Supreme Court, Bronx County Marcus, 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 May 17, 2021
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Jaquan Davis, Defendant.



1555/19



The attorneys are Assistant District Attorney Edward Christian Uy, Bronx County District Attorney's Office, 198 East 161st Street, Bronx, New York, 10451 and Nyiesha Hudson, The Legal Aid Society, 260 E. 161st Street, Bronx, NY 10469
Martin Marcus, J.

The defendant moves to contravert pen register and trap and trace device orders and search warrants issued June 27, 2019 and July 17, 2019 by the Honorable David Lewis, in connection with the defendant's mobile phone (hereinafter "the defendant's phone"). The defendant also moves to suppress as a fruit of the orders and warrants a statement made by him following his arrest, which he asserts resulted from information that was obtained pursuant to the orders and warrants.

The defendant makes numerous claims in support of his motion. First, he asserts that the search warrants were actually eavesdropping warrants and were applied for, issued and executed in violation of Article 700 of the Criminal Procedure Law. Second, he argues that the applications for the warrants were improperly made to and issued by Judge Lewis because he was not acting as a superior court judge sitting as a lower criminal court judge as required by CPL §§ 690.05(1) and 690.35(2). Third, he maintains that the warrants were to be executed outside New York State, in violation of CPL § 690.20(1). Fourth, and finally, he asserts that the warrants were invalid because the GPS location information obtained pursuant to them did not constitute the kind of property for which a CPL Article 690 search warrant may be issued. The People oppose the defendant's motion. They argue that the defendant does not have standing to bring the motion and that, in any case, the motion is without merit.

THE DEFENDANT HAS STANDING TO BRING THIS MOTION

The People argue that the defendant lacks standing to bring this motion because he was arrested independent of the use of the cell-site information obtained pursuant to the warrants and has no legitimate expectation of privacy while in a public place. In their response to the defendant's supplemental motion, the People provide factual support for that contention. Specifically, in the Assistant District Attorney's affirmation, he states that the last GPS ping that the detective who apprehended the defendant [hereinafter "the detective"] received "was from July 25, 2019 at 1:45AM which placed the Target Phone in the vicinity of East 167th Street and Grand Concourse with a radius of seven hundred and fifteen meters." Independent of that information, an eyewitness informed the detective that the defendant was observed that day in a public place, a housing development in the area of 158th Street and Park Avenue. As a result, [*2]the detective and other investigators conducted physical surveillance in that area, and at approximately 11:45 pm, observed the defendant walking through the housing development and entering 785 Courtlandt Avenue. They then apprehended him and took him into custody in the lobby of the building.

The defendant challenges the People's factual claim, noting that in their second application to Judge Lewis, the People requested, and Judge Lewis authorized, the use of a cell-site simulator. More significantly, the defendant points to a text message sent by the detective in which he reported that "[w]ithout TARU assistance with the triggerfish I would not [have] been able to locate target unless I had an isolated address in the area of those pings."[FN1]

In his affirmation, the Assistant District Attorney responded that the detective "contacted TARU regarding the [first] warrant and order," and that he requested TARU's assistance on locating the Target Phone and was informed that the order did not allow for the use of a cell-site simulator." In paragraph 26 of the affirmation, the Assistant District Attorney averred that "[a] cell-site simulator was never employed in this case." The People have also included in their response an affidavit from the detective stating that "[t]he information contained within paragraph 26 was furnished to me by [the Assistant District Attorney], and I know this information to be true based upon my personal knowledge." The People have not provided an explanation for the detective's text message, which certainly appears to contradict the People's claims that a cell-site simulator was not used and that the defendant was located and arrested based solely on physical observations of him. A hearing would be required to resolve this factual dispute, but doing so is unnecessary, since, even if the defendant's arrest did result from the use of a cell-site simulator, the defendant's motion, for the reasons detailed below, is without merit.

There is no question that the defendant has standing to make this motion, given his claim that his arrest was a fruit of information obtained in execution of the orders and warrants. In People v. Knotts, 460 U.S. 276 (1983), law enforcement officers surveilled a car principally traveling on public streets by monitoring signals emanating from a beeper secretly placed in a chloroform container in the car. The Supreme Court held that because "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements," the surveillance did not constitute either a search or a seizure under the Fourth Amendment. Id. at 281. As the Supreme Court has more recently recognized, however, the Knotts decision "was careful to distinguish between the rudimentary tracking facilitated by the beeper and more sweeping modes of surveillance," and "emphasized the limited use which the government made of the signals from this particular beeper during a discrete automotive journey." Carpenter v. United States, 138 S. Ct. 2206, 2215 (2018). Thus, in Carpenter, the Court held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [cell-site location information]." Id. at 2217. The CSLI records obtained in Carpenter were historical records, that is, they provided information concerning the cell phone user's movements in the past. A person's legitimate expectation of privacy in such information is even greater when it is obtained, as it was here, in real-time.

In People v. Weaver, 12 NY3d 433 (2009), a State Police Investigator surreptitiously placed a GPS tracking device inside the bumper of a van and employed the device to constantly monitor the position of the van for sixty-five days. The defendant was convicted of Burglary in the Third Degree and Attempted Grand Larceny in the Second Degree at a trial in which the People offered evidence obtained from the device that placed and tracked the movement of the van on the evening and at the location of the burglary. In reversing the conviction and suppressing the GPS evidence, the Court distinguished Knotts as "involv[ing] the use of a very primitive tracking device, used in a focused binary police investigation for the discreet purpose of ascertaining the destination of a particular container of chloroform." Id. at 440. The Court held that "[t]he massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy," and was unlawful in the absence of a showing of probable cause and a warrant. Id. at 444.

In this case, GPS information was obtained to identify the location of the defendant's cell phone, and presumably of the defendant himself, over each of the one-month periods the warrants authorized. As noted above, the defendant also alleges that a cell-site simulator was used for this purpose during the second month. Just as the defendants in Carpenter and Weaver had a reasonable expectation of privacy in the movements of their vehicles, so did the defendant here have a reasonable expectation of privacy in his movements as reflected in the location of his phone. Accordingly, the defendant has standing to bring this motion.

THE SEARCH WARRANTS WERE NOT EAVESDROPPING WARRANTS

The defendant argues that the search warrants, both of which sought "cell site information and precision location/GPS location information," and the second of which also authorized the use of a cell-site simulator, were in effect eavesdropping warrants. Cell-site information is information provided by a cell phone service provider concerning the location of the subject telephone. A cell-site simulator provides information concerning the location of the cell phone directly to the user.[FN2] The People do not claim that the search warrants in this case met all the requirements of an eavesdropping warrant, and unquestionably they did not.[FN3] Nonetheless, the defendant's motion to contravert and suppress on this ground is denied, because these warrants were not eavesdropping warrants.

As defined by CPL § 700.05(1),

"Eavesdropping" means "wiretapping", "mechanical overhearing of a conversation," or the "intercepting or accessing of an electronic communication," as those terms are defined in section 250.00 of the penal law, but does not include the use of a pen register or trap and trace device when authorized pursuant to article 705 of [the Criminal Procedure Law].

In pertinent part, "wiretapping" is defined by Penal Law § 250.00(1) as "the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than a sender or receiver thereof," without consent, "by means of any instrument, device or equipment." To be a "telephonic communication" the communication must be "an aural transfer," that is, "a transfer containing the human voice ." Penal Law §§ 250.00(3) and (4). According to Penal Law § 250.00(2), the "[m]echanical overhearing of a conversation" means "the intentional overhearing or recording of a conversation or discussion," without consent, and "by means of any instrument, device or equipment." Finally, Penal Law § 250.00(5) defines an "[e]lectronic communication" as

the transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system,

but specifically excludes "any communication made through a tracking device consisting of an electronic or mechanical device which permits the tracking of the movement of a person or object."

The location information provided to the police by the cell phone provider pursuant to the search warrants was gathered by causing the defendant's phone to "ping." "'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." People v. McDuffie, 58 Misc 3d 524, 527 (Kings Co. Sup Ct. 2017). If a cell-site simulator had been used, it would also have provided location information, but directly to the police.

Because the location information provided pursuant to the warrant did not "contain[] the human voice," the use of the warrants to obtain the location information in this case was not "wiretapping" within the meaning of Penal Law § 250.00(1) and CPL § 700.05(1). Because no "conversation or discussion" was overheard, it did not constitute the "mechanical overhearing of a conversation" within the meaning of Penal Law § 250.00(2) or CPL § 700.05(1). Because the definition of the term "electronic communication" specifically excludes "any communication made through a tracking device consisting of an electronic or mechanical device which permits the tracking of the movement of a person or object," it did not constitute the interception or accessing of such a communication within the meaning of Penal Law § 250.00(5) or CPL700.05(1). Not surprisingly, when the Court of Appeals held in Weaver, 12 NY3d at 433, that a warrant was required to obtain GPS information, the Court did not say that an [*3]eavesdropping warrant was the kind of warrant that was necessary.

Accordingly, contrary to the decisions in People v. Gordon, 58 Misc 3d 544 (Sup. Ct., Kings Co. 2017) and People v. Hernandez, 56 Misc 3d 586 (Kings Co. Sup Ct. 2017), a warrant that authorized the receipt of GPS location information or the use of a cell-site simulator does not constitute an eavesdropping warrant, and a warrant authorizing either need not be applied for, issued and executed in conformance with the requirements of Article 700. Since the search warrants in this case did not constitute eavesdropping warrants, the defendant's motion to contravert the warrants and suppress his statement on this ground is denied.

NO "BIALOSTOK HEARING" IS REQUIRED

The defendant argues that because cell-site simulators have the capacity to intercept the content of communications occurring over a targeted cell phone, the use of one in this case constituted eavesdropping within the meaning of Penal Law § 250.05(1) and CPL § 700.05(1). For the proposition that the use of a cell-site simulator constitutes eavesdropping, the defendant cites People v. Bialostok, 80 NY2d 738, 742 (1993). In the alternative to summarily suppressing the defendant's statement on this ground, the defendant asks for a "Bialostok hearing" to determine whether the cell-site simulator he alleges was used in this case had eavesdropping capacity. However, Bialostok is no longer good law. In Bialostok, the Court of Appeals held that because the pen register used in that case had the capacity to intercept the contents of communications its use constituted "eavesdropping" whether or not communications were actually intercepted and recorded Thereafter, however, the Legislature amended the definition of "eavesdropping" in CPL § 700.050(1) specifically to exclude "the use of a pen register or trap and trace device when authorized pursuant to article 705 [of the CPL]." In People v. Martello, 93 NY2d 645, 654 (1999), the Court of Appeals took notice of that amendment, holding that "the CPL article 705 definition of 'pen register,' combined with the operative effect of the Legislature's express exclusion of pen registers from the CPL article 700 definition of 'eavesdropping,' evinces a legislative intent to view all pen registers, including those readily adaptable as eavesdropping devices, as pen registers and not, as Bialostok held, as eavesdropping devices."

Thus, in this case, no "Bialostok hearing" is required. The defendant does not claim that the contents of any communications over his phone were obtained, nor is there an indication that any were. Even if a cell-site simulator was used in this case, and whether or not in had the capacity to intercept communications, its use to obtain information concerning the defendant's location was authorized by Judge Lewis and would not constitute eavesdropping.

JUDGE DAVID LEWIS HAD AUTHORITY TO ISSUE THE WARRANTS

A search warrant may be issued by "a local criminal court," CPL § 690.05(2)(a), and an application for a search warrant may be made to "a local criminal court, as defined in section 10.10 of [the Criminal Procedure Law] ." CPL § 690.35(2)(a). A "local [*4]criminal court" includes "[a] supreme court justice sitting as a local criminal court." CPL § 10.10(3)(f). The defendant argues that the search warrants Judge Lewis issued were invalid because when he signed them, he was not "sitting as a local criminal court."

Judge Lewis was appointed as a Judge of the New York State Court of Claims and has been designated an acting Supreme Court Justice. Article VI, § 26(b) of the State Constitution authorizes the temporary assignment of Court of Claims Judges to the Supreme Court, and Article VI, § 26(k) provides that Judges of the Court of Claims temporarily assigned as Acting Supreme Court Justices have the power, duties, and jurisdiction of an elected Supreme Court Justice. See People v. Harris, 177 Misc 2d 154, 156 (Kings Co. Sup. Ct. 1998). Thus, Justice Lewis was authorized to exercise the powers of a Supreme Court Justice, including the power to "sit[] as a local criminal court" See CPL § 10.10(3)(f).

In support of his claim that Judge Lewis was not acting in that capacity, the defendant points to the captions on the search warrants, which each state "SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF THE BRONX:CRIMINAL TERM," and the applications, affidavits, warrants and orders, which all state, under his signature, "Justice of the Supreme Court." These labels do not alter the fact that Judge Lewis had the power to sit as a local criminal court judge, and that in issuing the warrants he was doing so. See People v. Carson, 216 AD2d 965, 965 (4th Dept. 1995) ("we reject defendant's contentions that County Court was not acting as a local criminal court when it issued the search warrant and that the warrant was defective because it did not state that the Judge was sitting as a local criminal court"); People v. Schoenwandt, 12 Misc 3d 105, 106 (App. Term, 2d Dept., 2006) (trial heard in a courtroom of the Supreme Court before a Criminal Court Judge appointed an Acting Supreme Court Justice, retained jurisdiction to preside over Criminal Court matters).

THE WARRANTS WERE NOT EXECUTED OUTSIDE OF NEW YORK STATE

Section 690.20(1) of the Criminal Procedure Law provides that "[a] search warrant issued by the New York City criminal court or a superior court judge sitting as a local criminal court may be executed pursuant to its terms anywhere in the state. The defendant claims that the evidence obtained pursuant to these search warrants must be suppressed because the warrants were executed out of state. In support of his claim, the defendant alleges "[u]pon information and belief, that at the time of the issuance and execution of the Warrants and Orders, Verizon [the service provider to whom they were issued] was located outside New York State, include, including its main officers."

This claim is rejected for three reasons. First, the People correctly assert that Verizon is headquartered in this State. See https://www.verizon.com/about/our-company/verizon-corporate-headquarters (last visited, 5/17/2021). Second, regardless of where Verizon's headquarters are, the defendant's phone was located in this State when the whereabouts of the phone (and thus of the defendant) were determined the day he was arrested. Third, the warrants may be said to have been executed in the place where the [*5]location information was received, in this case, the State of New York. According to CPL § 700.05(4), a Supreme Court Justice is authorized to issue an eavesdropping warrant when the warrant is to be "executed" in that Justice's judicial district. In that context, the Second Department has held that,

[a]lthough the word "execute" is not defined in CPL article 700, the plain meaning of the word "execute" and the use of that word in relevant sections of the Criminal Procedure Law reveal that an eavesdropping warrant is "executed" when a communication is intercepted by law enforcement officers, that is, when the communication is "intentionally overheard or recorded" by law enforcement officers."

People v. Schneider, 176 AD3d 979, 980 (2019), leave granted, 34 NY3d 1132 (2020); see also Stegemann v. Rensselaer Cty. Sheriff's Office, 155 AD3d 1455, 1459 (3d Dept. 2017); People v. Perez, 18 Misc 3d 582 (Sup. Ct. Bronx Co. 2007); People v. Delacruz, 156 Misc 2d 284 (Sup. Ct. Bronx Co. 1992). Logically, the same analysis applies here.

GPS LOCATION INFORMATION MAY BE OBTAINED PURSUANT TO A CPL ARTICLE 690 SEARCH WARRANT

Section 690.10(4) of the Criminal Procedure Law provides for the issuance of warrants authorizing the search for and seizure of personal property that constitutes "evidence or tends to demonstrate that an offense was committed in this state or that a particular person participated in the commission of an offense in this state." The defendant argues that the applications for the search warrants in this case did not establish probable cause that such property existed and could be obtained by the warrants' execution, and that the GPS location data obtained pursuant to the search warrants did not constitute such property. This argument is also without merit.

This Court has reviewed the applications for the search warrants. As the People point out, both warrants mirrored the words of CPL § 690.10(4), stating that the applications for them established:

probable cause to believe that a designated crime as set forth in article 705 of the Criminal Procedure Law has been, is being or is about to be committed: and probable cause to believe that the cell site information and precision location/GPS information constitutes evidence of or tends to demonstrate that said offense said offense was, is being, or is about to be committed.[FN4]

The applications did succeed in establishing probable cause to believe that the defendant had committed the crime of Attempted Murder in the Second Degree, Assault [*6]in the First Degree and Criminal Possession of a Weapon in the Second Degree. They did not, however, claim to or succeed in establishing probable cause to believe that the GPS information would constitute evidence, at least in the conventional understanding of what "evidence" is, or that it would "tend to demonstrate" the defendant's culpability. Instead, the applications demonstrated, as they each explicitly claimed to do, probable cause that "[e]vidence helpful to locate [the defendant] [would] likely be obtained by using cell site information and precision location/GPS information."

Of course, once located and arrested, it was possible that the defendant might have been found in possession of property connecting him to the crime, or might make an inculpatory statement, as the defendant did here. But that possibility does not constitute a probability, as CPL §§ 690.30(3) and 690.40(2) require. Thus, the issue remains whether a search warrant may be issued solely for the purpose of finding and arresting a suspect.

While it is clear from the Court of Appeals' decision in Weaver that GPS information can be obtained pursuant to a search warrant, the decision says nothing about the purpose for which such a warrant may be used. The GPS information obtained in that case did, as it happened, constitute evidence of the movements of the defendant's van at a time and place connecting him to the later of the two burglaries with which he was charged, and the People offered it at trial for that purpose. Nonetheless, the Court did not state that a warrant could have been issued only upon a showing of probable cause that the information thus obtained would have produced evidence of a crime or that tended to connect the defendant to it. To the contrary, given the Court's observation that it was "not clear from the record why defendant was placed under electronic surveillance," Weaver, 12 NY3d at 436, the opinion implies that a warrant could have been obtained even if its only purpose was to find and arrest the defendant for the earlier burglary.

This inference is a logical one, and one that I find persuasive and applicable here. Relying on this logic, such warrants have been routinely granted since, and even before, Weaver was decided. It simply makes no sense that where probable cause exists that a person committed a crime and that GPS information can be used to locate and arrest him, that CPL Article 690 would not authorize the issuance of a search warrant to do so. See People v. Cutts, 62 Misc 3d 411, 415 (Sup. Ct. NY Co. 2018) (order authorizing the use of cell-site information and indicating that "[p]robable cause has been established to show that GPS/precision location is relevant to an ongoing criminal investigation" complied with requirement in Carpenter of a warrant issued upon probable cause).

For these reasons, the defendant's motion to contravert the orders and warrants and to suppress his statement as a fruit of their issuance is summarily denied.

This constitutes the decision and order of the Court.

DATED: May 17, 2021

____________________

MARTIN MARCUS

J.S.C. Footnotes

Footnote 1: TARU is the New York City Police Department's Technical Assistance Response Unit.

Footnote 2:In his supplemental motion, the defendant explains that "[a] cell-site simulator pretends to be a cell phone tower in order to force connections from all cell phones in range of the device. It emits a signal that compels multiple cell phones in the area to connect directly to it, rather than to a third-party service provider's cellular tower. Once connected, it collects identifying information and location data from the phones."

Footnote 3:For example, the applications for the warrants were not made by an authorized "applicant," as required by CPL § 700.20(1); the applications did not demonstrate that "normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ" as required by CPL § 700.15(4), and the warrants did not require that they be executed "in such a way as to minimize the interception of communications or the making of observations not otherwise subject to eavesdropping or video surveillance under [article 700]," as required by CPL § 700.30(7).

Footnote 4:The search warrants did not include a finding of probable cause that the information would "tend to demonstrate that a particular person participated in the commission of an offense," as permitted by CPL § 690.10(4).