A state judge has thrown out the results of a lineup that identified a Brooklyn man charged with attempted murder because police used a cell site simulator to track him without securing a probable-cause warrant beforehand.

The decision, issued by Kings County Supreme Court Justice Martin Murphy, may be the first time a state judge has ruled that a warrant based on probable cause—rather than on a lesser standard such as reasonable suspicion—is necessary before deploying a cell site simulator, according to Barry Kamins, a former administrative judge for New York City's criminal courts and a former Supreme Court justice.

Addressing a motion to suppress filed by defendant Shuquan Gordon, Murphy drew a distinction between what information police may collect using a “pen register” or “trap and trace” warrant, and what they may discover using a harder-to-obtain “eavesdropping” warrant.

In People v. Gordon, 03414/16, the New York City Police had obtained in 2016, from then-Kings County Supreme Court Justice Alan Marrus, a pen register/trap and trace warrant that authorized officers to use a cell site simulator, Murphy wrote.

But he ruled that an eavesdropping warrant was needed before a cell site simulator's technology, which uses GPS tracking, could be deployed.

The judge pointed out that a pen register/trap and trace warrant may be issued based on only reasonable suspicion. An eavesdropping warrant requires probable cause.

But the New York City Police Department on Wednesday took issue with Murphy's decision, arguing that the judge was simply wrong on key factual points, including about whether a cell site simulator was used to locate the defendant in the case and potentially about the type of warrant issued in the investigation.

Lawrence Byrne, the police department's chief legal officer and a deputy commissioner, said in a telephone interview that “our records indicate that cell site simulator technology was not used in this investigation to arrest this individual.”

He also said that “any time we use our version of cell site simulator technology, we do it pursuant to a court order, based on probable cause.”

Byrne added that the New York City Police Department's particular cell site simulator technology “does not allow us to intercept the content of communications” of cell phone users, although it does perform GPS tracking.

Helen Peterson, a spokeswoman for the Brooklyn District Attorney's Office, said on Wednesday in an email, “We are evaluating the decision and considering our options.”

A cell site simulator, or colloquially a “Stingray,” emits a signal that compels area cellphones to connect to it rather than to a cell service tower, according to Murphy's description of the technology in his opinion. Ultimately, it reveals “highly precise real time cell phone location and the contents of voice and text communications,” Murphy wrote, and the device collects information directly from a target device, as opposed to from a third-party provider.

A pen register or trap and trace warrant is authorized under New York's CPL Art. 705.00, and that law makes it clear that it is improper to obtain information from a suspect's phone other than phone numbers dialed or otherwise transmitted in outgoing and incoming calls, or an originating phone number, Murphy wrote in his Nov. 3 opinion.

The cell site simulator collects far more data, using GPS, he said.

“It has been held that the use of a GPS or a location tracking device … elevates the level of intrusiveness,” Murphy wrote, adding, “With the requirement of probable cause, a warrant for GPS tracking devices fits into the statutory scheme for eavesdropping and visual surveillance warrants.”

“By its very nature … the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause,” he also wrote.

Murphy suppressed the lineup results, but denied Gordon's motion regarding potential evidence derived from his behavior at the time of arrest. Gordon, who allegedly shot at another man from behind in early 2016, was also charged with first-degree assault, attempted first-degree assault, second-degree assault, and several firearm counts.

A state judge has thrown out the results of a lineup that identified a Brooklyn man charged with attempted murder because police used a cell site simulator to track him without securing a probable-cause warrant beforehand.

The decision, issued by Kings County Supreme Court Justice Martin Murphy, may be the first time a state judge has ruled that a warrant based on probable cause—rather than on a lesser standard such as reasonable suspicion—is necessary before deploying a cell site simulator, according to Barry Kamins, a former administrative judge for New York City's criminal courts and a former Supreme Court justice.

Addressing a motion to suppress filed by defendant Shuquan Gordon, Murphy drew a distinction between what information police may collect using a “pen register” or “trap and trace” warrant, and what they may discover using a harder-to-obtain “eavesdropping” warrant.

In People v. Gordon, 03414/16, the New York City Police had obtained in 2016, from then-Kings County Supreme Court Justice Alan Marrus, a pen register/trap and trace warrant that authorized officers to use a cell site simulator, Murphy wrote.

But he ruled that an eavesdropping warrant was needed before a cell site simulator's technology, which uses GPS tracking, could be deployed.

The judge pointed out that a pen register/trap and trace warrant may be issued based on only reasonable suspicion. An eavesdropping warrant requires probable cause.

But the New York City Police Department on Wednesday took issue with Murphy's decision, arguing that the judge was simply wrong on key factual points, including about whether a cell site simulator was used to locate the defendant in the case and potentially about the type of warrant issued in the investigation.

Lawrence Byrne, the police department's chief legal officer and a deputy commissioner, said in a telephone interview that “our records indicate that cell site simulator technology was not used in this investigation to arrest this individual.”

He also said that “any time we use our version of cell site simulator technology, we do it pursuant to a court order, based on probable cause.”

Byrne added that the New York City Police Department's particular cell site simulator technology “does not allow us to intercept the content of communications” of cell phone users, although it does perform GPS tracking.

Helen Peterson, a spokeswoman for the Brooklyn District Attorney's Office, said on Wednesday in an email, “We are evaluating the decision and considering our options.”

A cell site simulator, or colloquially a “Stingray,” emits a signal that compels area cellphones to connect to it rather than to a cell service tower, according to Murphy's description of the technology in his opinion. Ultimately, it reveals “highly precise real time cell phone location and the contents of voice and text communications,” Murphy wrote, and the device collects information directly from a target device, as opposed to from a third-party provider.

A pen register or trap and trace warrant is authorized under New York's CPL Art. 705.00, and that law makes it clear that it is improper to obtain information from a suspect's phone other than phone numbers dialed or otherwise transmitted in outgoing and incoming calls, or an originating phone number, Murphy wrote in his Nov. 3 opinion.

The cell site simulator collects far more data, using GPS, he said.

“It has been held that the use of a GPS or a location tracking device … elevates the level of intrusiveness,” Murphy wrote, adding, “With the requirement of probable cause, a warrant for GPS tracking devices fits into the statutory scheme for eavesdropping and visual surveillance warrants.”

“By its very nature … the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause,” he also wrote.

Murphy suppressed the lineup results, but denied Gordon's motion regarding potential evidence derived from his behavior at the time of arrest. Gordon, who allegedly shot at another man from behind in early 2016, was also charged with first-degree assault, attempted first-degree assault, second-degree assault, and several firearm counts.