People v. Campos
| Decision Date | 09 November 2015 |
| Docket Number | No. 1684–2012.,1684–2012. |
| Citation | 31 N.Y.S.3d 922 (Table) |
| Parties | The PEOPLE of the State of New York v. Alejandro CAMPOS and Dominick Davis, Defendants. |
| Court | New York Supreme Court |
A combined Huntley/Dunaway/Wade/Mapp/Harris hearing was conducted before this Court over several dates, concluding on October 16, 2015. On October 21, 2015, the Court rendered an oral decision. This Opinion states the Court's findings of fact and conclusions of law once again, this time in more formal written form.
The most complex and most troubling issue in this murder case arises from the following facts.
Defendants Dominick Davis and Alejandro Campos are jointly charged with, among other crimes, robbing and killing a young man named Hwang Yang at about midnight on April 18, 2012, as Yang walked from the subway toward his home in the Riverdale section of the Bronx.
Defendant Alejandro Campos was interviewed by the police on April 26, 2012. At about 9:15 p.m. he identified defendant Davis as the actual shooter (and also provided the police with Davis's cell phone number). A short time later the N.Y.P.D. Technical Assistance, or “TARU”, Unit had the phone company “ping” Davis's cell phone. Davis's phone was “pinged” at fifteen minute intervals four times beginning at about 11:15 p.m. on April 26.
The last “ping” disclosed Davis's location—which was in the parking lot of a McDonald's restaurant right across the street from the same police station where defendant Campos was still being held and interviewed.
This “ping” enabled the police to pick up Davis in that parking lot at about 12:30 a.m. on the 27th; and Davis was Miranda -ized and questioned about two and a half hours later, at 3 a.m. Davis was then Miranda -ized and interviewed a second time, this time on video tape, at about 4:30 a.m. Each time Davis confessed to shooting and killing the victim. He lamented that he had shot Yang over “a dumbass I–Phone,” and said that the incident was like a “bad dream”.
The police did not obtain any trap and trace order or warrant prior to “pinging” Davis's phone on the night of April 26th.
Instead, the next day, April 27th, during regular daytime business hours, the People applied for and obtained an ex parte trap and trace order from Judge Marcus of this Court. (The application and Order are in evidence; the minutes of the proceeding before Judge Marcus are also in evidence.)
The April 27th application did not reveal, or even hint, to Judge Marcus that on April 26th the police had already “pinged” Davis's phone and then used the “ping” data in order to find Davis and pick him up.
Furthermore, the Order did not retroactively authorize the April 26 “pinging” already conducted by the police. The Order does authorize the collection of all historical cell site data for calls made on Davis's phone from April 14 to April 27; but the Order does not authorize the police to conduct any “pinging” procedure on any date.1
For these reasons, defendant Davis can and does argue in substance: a) that the April 26th “ping” was illegal; b) that the April 26th “ping” led directly to Davis's arrest; c) that Davis's arrest in turn led to both his 3 a.m. written confession and his 4:30 a.m. video confession; and, d) that both confessions must therefore be suppressed as “the fruit of the poisonous tree.”
This argument is a substantial one. The issue is also an important one, because Davis's confessions are essential to the People's case against Davis on the homicide charges here.
The issue presented breaks down into three related questions, as follows.
Number one—Was there either a Fourth Amendment or a New York State constitutional violation committed here?
Number two—Was there a violation of Criminal Procedure Law § 705, the New York State Trap and Trace statute, or of the related federal statute, the Stored Communications Act, which is set out in Title 18 of the U.S.Code?
And number three—If there were violations, is suppression of either, or both, of Davis's confessions mandated as a result?
Accordingly, the first question presented is whether the April 26 “ping” of Davis's phone constituted a violation of either the Fourth Amendment of the U.S. Constitution, or of the virtually identical search and seizure provision of the New York State Constitution. (N.Y. State Const., Art. 1, § 12 ).
The answer is “No” for the following reasons.
-“Ping” Not a Search -
First, the Court holds that “pinging” defendant's cell phone to determine defendant Davis's location, so that the police could then pick him up right away, was not a search or seizure; and this “ping” did not implicate either the Fourth Amendment or the New York State Constitution. That is the holding of People v. Moorer, 39 Misc.3d 603, 959 N.Y.S.2d 868 (County Ct. Monroe Co.2013) and People v. Wells, 45 Misc.3d 793, 991 N.Y.S.2d 743 (S.Ct. Queens Co.2014).
Moreover, that result is mandated by the logic of People v. Hall, 86 A.D.3d 450, 926 N.Y.S.2d 514 (1st Dept.2011), lv. den. 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 (2012), cert. den. ––– U.S. ––––, 133 S.Ct. 1240, 185 L.Ed.2d 189 (2013), a 2011 First Department case which is binding on this Court. In Hall, the Appellate Division held that obtaining a defendant's historic cell site information for a three day period pursuant to a court order did not constitute a “search” within the meaning of the Fourth Amendment.
Why not?
Because, said the Appellate Division, a defendant has no reasonable expectation of privacy concerning his whereabouts when he is out in public.
Here the police “pinged” defendant's phone only four times over about one hour, and the last “ping” provided Davis's then current location—which (as noted) was in the parking lot of a McDonald's restaurant, wide open to public view, right across the street from the police station.
That very brief “pinging” procedure was obviously far less intrusive than obtaining three days of cell site information—a process that the Hall court held was not a “search.” Thus, based on Hall, it seems evident a fortiori that a “ping” that disclosed defendant's Davis's momentary presence in a public place was also not a “search” within the meaning of the Fourth Amendment (or New York State Constitution).
The Opinion in Hall distinguishes the automobile GPS cases like People v. Weaver, 12 N.Y.3d 453, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009), and U.S. v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), which each involve secretly placing a GPS device on a car and then tracking the car over a prolonged period. That is a search, say Weaver and Jones. But obtaining cell phone geolocation data in a fashion that does not involve planting a device on defendant's property, says Hall, is not a search.
Although the case law is far from unanimous, see P. Corbett, “The Fourth Amendment and Cell Site Location Information: What Should We Do While We Await the Supremes?”, 8 Fed. Cts. L.Rev. 815 (2015), most other courts agree with Hall, and they usually put forth either one or both of the following two lines of reasoning.
First, many courts have said that a cell phone owner buys a phone knowing that it contains a GPS device, and the owner necessarily voluntarily exposes all his cell phone data and cell site information to his own phone company. Therefore he has no reasonable expectation of privacy in that data. See, for example, In Re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 611–615 (5th Cir.2013), and U.S. v. Davis, 785 F.3d 498, 511 (11th Cir.2015).
That is especially true because ordinarily all a cell phone owner must do in order to avoid having his phone “pinged”, or being tracked by cell site data, is to simply turn his phone off.
Second, many courts have also reasoned that a person who is in a public place—like Davis in this case—has no reasonable expectation of privacy in his location, which is already exposed to the public (and the police). See U.S. v. Skinner, 690 F.3d 772 (6th Cir.2012), cert. den. ––– U.S. ––––, 133 S.Ct. 2851, 186 L.Ed.2d 913 (2013) and U.S. v. Forest, 355 F.3d 942 (6th Cir.) cert. den. 543 U.S. 856, 125 S.Ct. 174, 160 L.Ed.2d 93 (2004). (The case law in this area is summarized in T. Sheehan, “Taking the Third Party Doctrine Too Far,” 13 Georgetown Law and Public Policy Review 181 (Winter 2015).)
For both these reasons the brief “pinging” done in this case—which revealed Davis' cell phone geolocation data just long enough for the police to find Davis at McDonald's—was not a “search” within the meaning of the Fourth Amendment or New York State Constitution.
Speaking bluntly, if Davis was so unwise as to sit, with his phone turned on, in a busy public parking lot right across the street from the very same police officers who were at that moment actively hunting him down as a murder suspect, then Davis cannot credibly argue that he reasonably expected his location to remain private.
Thus defendant Davis is wrong when he asserts that the April 26 “ping” of his cell phone constituted a search or seizure. Such a “ping” is not regulated by, and therefore cannot violate, either the U.S. or New York State Constitution.
—Exigent Circumstances —
Furthermore, even if that “ping” were considered a search, the constitutional requirement of a search warrant can, of course, be excused by exigent circumstances. See People v. Watkins, 125 A.D.3d 1364 (4th Dept.2015) ().
Exigent circumstances were presented here. Defendant Campos walked out of his apartment building, accompanied by several detectives, in full public view, at about 6 p.m. on April 26, and was then driven to the stationhouse by the detectives in a police car. Campos's accomplice Davis lived in the same building as Campos. Presumably, many neighbors knew both men. Once word got around to Davis that Campos had gone to the stationhouse and was apparently cooperating with the...
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