People v. Simpson

• Citation: 88 N.Y.S.3d 763,62 Misc.3d 374
• Decision Date: 04 September 2018
• Docket Number: 01027-2017
• Parties: The PEOPLE of the State of New York v. Maurice SIMPSON, Defendant.
• Court: New York Supreme Court

62 Misc.3d 374

88 N.Y.S.3d 763

The PEOPLE of the State of New York

v.Maurice SIMPSON, Defendant.

01027-2017

Supreme Court, Queens County, New York.

Decided September 4, 2018

For the Defendant: Legal Aid Society (Mihea Kim, Esq., of Counsel; John Kalinowski, Esq., of Counsel)

For the People: Richard A. Brown, District Attorney, Queens County (Derek Milligan, Esq., of Counsel; Robin Leopold, Esq., of Counsel)

John Zoll, J.

Summary of Court's Decision

The recent decision of Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018) applies to the instant case; the People recovered CSLI records to which the defendant had a Fourth Amendment privacy right; the People's ex parte application to the Supreme Court was required to be based on probable cause; the defendant has a due process right to be heard as to whether the People's application was based on probable cause; under the specific procedural posture of this case, the appropriate remedy in the instant case is to give the defendant a de novo review of the People's application; the People's order seeking the defendant's CSLI records and account information was supported by probable cause; the defendant's motion to suppress and remove evidence from the trial record is denied.

Procedural Posture

On May 31, 2018, a jury trial commenced, in which the defendant is charged with one count of Robbery in the First Degree.¹ During the course of this trial, the People introduced several pieces of evidence connected to the defendant's cell phone. First, the defendant's cell phone number,² which had previously been provided to both the assigned investigating detective³ and an agent of the New York State Division of Parole, who was charged with supervising the defendant⁴ The People also introduced cell phone records of a ‘Malik Simpson’ using the phone number given to Detective Rossello by the defendant. Finally, the People entered into evidence the testimony of Mr. Joseph Sierra, a T-Mobile representative, whose testimony was based upon historical cell-site location information (CSLI) records.

The defendant objected to the cell site records being entered into evidence as well as the testimony of Mr. Sierra and Parole Officer Bagu. During a sidebar conference, the defendant served a motion to suppress the records immediately prior to Mr. Sierra testifying. The Court noted that the motion was likely to be untimely,⁵ but ultimately denied the motion to suppress on the grounds that the defendant did not have standing to challenge the CSLI records maintained by a third party, in accordance with the state of the law on Wednesday, June 20, 2018. (See People v. Rubin , 143 A.D.3d 846, 39 N.Y.S.3d 74 [2d Dept. 2016] ; People v. Jiles , 158 A.D.3d 75, 68 N.Y.S.3d 787 [4th Dept. 2017] ; People v. Taylor , 158 A.D.3d 1095, 72 N.Y.S.3d 256 [4th Dept. 2018] ; People v. Sorrentino , 93 A.D.3d 450, 939 N.Y.S.2d 452 [1st Dept. 2012] ). However, the Court ruled that the People were required to comply with the Stored Communications Act.⁶ The Court permitted the T-Mobile expert to testify, permitted into evidence the cell phone records, CSLI records for the three-day period November 29, 2016 through December 1, 2016, the cell phone number of a ‘Malik Simpson’, and Parole Officer's Bagu's testimony.

Both Detective Rossello and Parole Officer Bagu testified that the phone number associated with ‘Malik Simpson’ was the same phone number the defendant had provided as his own. Mr. Joseph Sierra, the T-Mobile representative, who was deemed to be an expert in the area of cell site records and technology, was permitted to explain to the jury how (a) how a cell phone communicates with cell towers; (b) how that information is recorded, preserved, maintained; and (c) how that information can be used to help pinpoint the location of that cell phone at the time a call/text is made. Mr. Sierra also testified that the defendant's phone "pinged" a cell tower close to the Family Dollar Store that was robbed. Using an enlarged map, Mr. Sierra showed the jury where approximately the tower was that was pinged just a few minutes after the robbery. He further testified that in virtually every other instance within the three-day period, the defendant's phone "pinged" a different cell tower, a few blocks of the Family Dollar Store.

Of course, just two days after that testimony and the admission of the defendant's historical CSLI records into evidence, the United States Supreme Court issued its decision of Carpenter v. United States , holding that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI" ( Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 2217, 201 L.Ed.2d 507 [2018] ). In its decision, the Court held that information obtained from an individual's wireless carrier or carriers is the product of a search, for a which a search warrant supported by probable cause is required ( id. at 2221 ).

On Monday, June 25, 2018, the defendant renewed his motion to suppress the records and related testimony. The People again opposed the defendant's application in its entirety, both orally and on papers,⁷ arguing that Carpenter did not apply to the instant case, and that even if it did, a court order for the records, signed by a judge of coordinate jurisdiction, was supported by probable cause, and therefore did not violate the Carpenter ruling. This Court ultimately denied the defendant's motion to suppress orally with a written decision to follow. This decision memorializes that oral decision.

Conclusions of Law

Carpenter v. United States is Applicable to the Instant Case

The initial inquiry is whether Carpenter applies to the instant case on trial. For the reasons discussed below, this Court finds that it does apply and that the retrieval of the defendant's historical CSLI records implicated the defendant's Fourth Amendment right to be free from an unreasonable, warrantless search and seizure.

The People first argue that because they obtained cell site data for a period of only three days, Carpenter does not apply, arguing that "the Court explicitly limited its holding to collection of seven days of cell site data or more." (People's Memo of Law , p. 1).

Chief Justice Roberts, writing for the majority⁸ in a footnote, revealed that the litigants unsuccessfully attempted to arrive at a consensus of exactly what minimum period of time would require a warrant. On this issue, he concluded that "we need not decide whether there is a limited period for which the Government may obtain an individual's historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search" ( Carpenter , 138 S.Ct. at 2217, fn. 3 ).⁹

Clearly, the majority in Carpenter did not expressly place a definitive limit on the amount of time the government may request an individual's CSLI without the need for a search warrant. Moreover, the majority's analysis dedicates little time discussing the amount of time the government may apply for a warrantless court order; instead, the decision virtually focuses almost all of its entire discussion on whether and why the Fourth Amendment confers on an individual a reasonable expectation of privacy in his or her CSLI records. The Court's justification for conferring this Fourth Amendment protection rests entirely on the principle that tracking an individual's movements without a warrant is contrary to the Fourth Amendment; not the amount of time the government seeks to monitor that particular person. In determining if the holding in Carpenter applies to this case, and in the absence of any subsequent appellate case law so soon after the decision, this Court can only rely on the express holding of the Supreme Court and any reasoning it employed to arrive at its conclusion. This Court finds that the express holding of the Carpenter Court was that an individual maintains a legitimate expectation of privacy in his physical movement as captured through CSLI . The Carpenter decision simply applied that new principle to the shortest period of time covered by the Ohio court's order: seven days. As discussed below, this Court finds that the period of time in Carpenter — seven days -- is less significant to the ultimate decision by the Court than the underlying rationale supporting the Court's express holding.

"The ultimate measure of the constitutionality of a governmental search is reasonableness" ( Carpenter , 138 S. Ct. at 2221 ). A search is typically unreasonable where "a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing" and a search is reasonable, in the absence of a warrant, "only if it falls within a specific exception to the warrant requirement" ( id. ). The majority of the justices reiterated that the Fourth Amendment "protects people, not places" ( Carpenter at 2213, quoting Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967] ), and a determination of what is protected by the Fourth Amendment depends on what society is prepared to recognize as reasonable ( Carpenter at 2213, quoting Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 [1979] ).

In Carpenter , the Court reviewed two competing principles involving an individual's privacy rights: information of or about a person held by third parties--such as banking records held by their financial institution--and instances where the government tracks the movements of a suspect in a criminal investigation through enhanced technological tracking devices, such as a global positioning system (GPS).

In United States v. Miller , 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), the defendant moved to suppress bank records obtained by subpoena from his bank, including microfilm of the defendant's account, deposit slips, cancelled checks, financial...