People v. Edwards

Decision Date14 March 2019
Docket Number316-2017
Citation97 N.Y.S.3d 418,63 Misc.3d 827
CourtNew York Supreme Court
Parties The PEOPLE of the State of New York, Plaintiff, v. Sasha EDWARDS, Defendant.

Defendant Sasha Edwards is represented by The Legal Aid Society (Caroline M. McGrath, of counsel)

The People of the State of New York are represented by the Bronx County District Attorney's Office (Thomas B. Litsky of counsel)

Ethan Greenberg, J.Defendant Sasha Edwards moves to suppress two items, namely: (1) cellular telephone call records for defendant's cellular telephone that were obtained by the New York City Police Department ("NYPD") by means of an administrative subpoena (the "Administrative Subpoena") issued by the NYPD to the cellular telephone carrier T-Mobile on or about January 17, 2017; and (2) cell site location information ("CSLI") for defendant's cellular telephone that was obtained by the Bronx County District Attorney's Office from T-Mobile by means of a December 17, 2017, "Order Pursuant to 18 USC § 2703(d)" issued by the Hon. Shari Michaels.

The latter application raises a number of interesting issues concerning the scope and reach of the recent decision of the U.S. Supreme Court in Carpenter v. United States , 585 U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018).

Both branches of the motion to suppress are denied for the reasons detailed below.

I. THE ADMINISTRATIVE SUBPOENA

The January 17, 2017, Administrative Subpoena issued by the NYPD called for the records of defendant's incoming and outgoing cellular telephone calls for a two-month time frame between November 17, 2016, and January 17, 2017. These cellular telephone calls records did not supply the content of any calls. They instead revealed only (a) the times at which incoming and outgoing calls were placed, and (b) the telephone numbers to which calls were placed and from which calls were received. These call records are important because they tend to substantiate the allegation that defendant lured the complainant—a Chinese food delivery man—to defendant's own building through a series of cellular telephone calls in order to rob the complainant at gunpoint of cash (and Chinese food) in the lobby there.

The People assert that the NYPD possesses the legal authority to issue such a subpoena pursuant to AC § 14-137. Defendant, however, maintains that the power to issue a subpoena that is conferred by that Administrative Code provision is limited to internal administrative issues directly affecting the Police Department, and does not extend to an ordinary criminal investigation of a civilian defendant.

Defendant relies chiefly in this regard on the decision of the trial court in People v. Adeniran , 2012 LEXIS 6561 (Sup Ct Queens Co 2012). However (as defendant himself properly concedes in his excellent motion papers), the trial court's decision in Adeniran was reversed in People v. Adeniran , 116 A.D.3d 706, 984 N.Y.S.2d 377 (2d Dept), lv den 24 N.Y.3d 1081, 1 N.Y.S.3d 8, 25 N.E.3d 345 (2014). In Adeniran the Appellate Division did not reach the question whether the NYPD is authorized to issue an administrative subpoena in order to investigate ordinary civilian crimes, explaining that: "Even assuming, ad arguendo , that the subpoena was improperly issued, the defendant has no standing to challenge the subpoena." (Emphasis added.)

Adeniran is directly on point there. Whether or not the January 2017 NYPD Administrative Subpoena was properly issued here—concededly, a troubling issue for all the reasons ably set forth in defendant's motion papers—defendant has no standing to challenge that subpoena.

The decision of the Appellate Division Second Department in Adeniran is binding on this Court. Mountain View Coach Lines v. Storms , 102 A.D.2d 663, 476 N.Y.S.2d 918 (2d Dept. 1984).

Accordingly, defendant's motion to suppress the cellular telephone call records obtained by means of the January 2017 NYPD Administrative Subpoena in this case must be denied.

II. CSLI
The § 2703(d) Order

Justice Michaels' December 17, 2017 Order directed T-Mobile to produce cell site location information for defendant's cellular telephone for a two day period from November 27 through 28 of 2016. (It is alleged that defendant robbed the victim in the lobby of the defendant's building on the evening of November 27, 2016.)

Justice Michaels' Order was issued pursuant to § 2703(d) of the Stored Communications Act. See 18 USC § 2701 et seq. Justice Michaels' Order was based on the statutory finding required by that statute that there were "reasonable grounds " to believe that the information sought was relevant and material to an ongoing criminal investigation.

This statutory "reasonable grounds" standard is far easier to satisfy than the traditional Fourth Amendment requirement that a search warrant application must demonstrate probable cause to believe that evidence of a crime will be found. See Carpenter v. United States , 585 U.S. ––––, 138 S.Ct. 2206, 2221, 201 L.Ed.2d 507 (2018) (the "reasonable grounds" showing required by § 2703 [d] "falls well short of the probable cause required for a warrant").

As the prosecutor's December 13, 2017, Application that led to Justice Michaels' Order set forth, long before that Order was sought the victim had already identified defendant Edwards as the robber in both a photo array and a line-up. Indeed, defendant had already been indicted by a Bronx Grand Jury for the robbery. Thus there was more than ample probable cause to support the prosecution's request for CSLI data.

Nevertheless, because the People sought an order issued pursuant to the Stored Communications Act—and not a search warrant—Justice Michaels employed the less rigorous statutory "reasonable grounds" standard; she did not make a probable cause finding as would be required for a traditional search warrant.

Justice Michaels' use of the "reasonable grounds" standard was wholly proper and consistent with both the Stored Communications Act (which was presumptively constitutional) and with New York law and practice at that time. For many years prior, New York prosecutors (like their counterparts all across the country) had routinely sought and were routinely granted CSLI orders utilizing the Stored Communications Act's statutory "reasonable grounds" standard.

New York courts had in turn consistently upheld such CSLI orders and found that no search warrant was necessary in such a case. Until very recently, the view of the New York courts was that no warrant was necessary because no "search" within the meaning of the Fourth Amendment occurs when CSLI data is obtained. That was so both because (a) a defendant has no legitimate expectation of privacy in his or her location when moving about in public, and (b) CSLI data is already known to a defendant's cellular telephone carrier. See People v. Taylor , 158 A.D.3d 1095, 72 N.Y.S.3d 256 (4th Dept. 2018) ; People v. Giles , 158 A.D.3d 75, 68 N.Y.S.3d 787 (4th Dept. 2017) ; People v. Sorrentino , 93 A.D.3d 450, 939 N.Y.S.2d 452 (1st Dept. 2012) ; People v. Hall , 86 A.D.3d 450, 926 N.Y.S.2d 514 (1st Dept. 2011).

That was also the nearly uniform view of the federal courts prior to Carpenter . See United States v. Thompson , 866 F.3d 1149 (10th Cir 2017) ; United States v. Graham , 824 F.3d 421 (4th Cir 2016) United States v. Davis , 785 F.3d 498 (11th Cir 2015) ; In Re Application of United States for Historical Cell Site Data , 724 F.3d 600 (5th Cir 2013).

Carpenter and Short-Term CSLI

In June of 2018, however, the United States Supreme Court decided the landmark case of Carpenter v. United States , 585 U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). In Carpenter , a narrow 5-4 majority of the Supreme Court held that even though cell site location data is known to a third party — that is, the cellular telephone carrier — a person retains a legitimate expectation of privacy in the record of his physical movements as captured through long-term CSLI data. Carpenter therefore found that a search warrant based on probable cause is required for long-term CSLI data, and that § 2703(d) is unconstitutional because it permits the government to obtain CSLI data on a lesser showing of "reasonable grounds."

However, the Carpenter court at the same time expressly declined to say whether a Fourth Amendment "search" takes place where the government obtains CSLI data for a limited period of seven days or less. See Carpenter , 138 S.Ct. at 2217, note 3.

It is important to note that the Order in this case is for a period of only two days. Thus it is not at all clear whether, according to Carpenter , any "search" within the meaning of the Fourth Amendment took place here.

This is not a case where the People were using CSLI data in an effort to trace all of defendant's movements over an extended period of time as part of a long-term investigation into defendant's whereabouts and conduct.

Rather, the clear and expressly stated limited purpose of the application that led to the Order at issue here was to show that defendant was indeed present at the scene of the robbery—a public place—at the moment that the victim was robbed. (As stated in the People's December 13, 2017 Application for the Order at issue: "The People are requesting the T-Mobile records... because these records are relevant to this criminal prosecution.

The records may establish whether defendant's cellular telephone was in the vicinity of 2090 Morris Avenue when the robbery occurred ") (emphasis added).

As a result if any case would seem to fall into the category of short-term CSLI data that the Supreme Court expressly carved out from its Carpenter decision, this would appear to be that case.

The Supreme Court had good reason to expressly exempt short-term CSLI data from its Carpenter decision. Gathering long-term CSLI data is much more clearly an invasion of a cellular telephone holder's legitimate expectation of privacy; it is, in a sense, the modern day electronic equivalent of sending a government spy out to follow the...

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1 cases
  • State v. Smith
    • United States
    • Arizona Supreme Court
    • November 4, 2020
    ..."regardless of the language used in the order," the order set forth probable cause for the search. See People v. Edwards , 63 Misc.3d 827, 97 N.Y.S.3d 418, 421–22 (N.Y. Sup. Ct. 2019). In Edwards , the court held that a CSLI order complied with Carpenter because it "ma[de] out probable caus......

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