DECISION AND ORDER The defendant, John Harris, has filed a Motion, dated October 25, 2018, to suppress cell site location information in which he argues that the recent decision of the Supreme Court of the United States in Carpenter v. United States,__ US,__, 138 S Ct 2206 (2018), applies to the People’s application in this case for that information, under the Stored Communications Act (18 USCS §2703[d]). The People’s response, dated November 15, 2018, urges the Court to deny the defendant’s motion in its entirety, arguing that Carpenter is inapplicable, that the defendant lacks standing, and, in the alternative, that the People’s application established the requisite probable cause to satisfy Carpenter. The Court decides the motion as follows.PROCEDURAL POSTURE AND LEGAL HISTORYThe defendant has been charged, under Queens County Indictment number 1836/2017, with two counts of Assault in the First Degree (PL 120.10[1] and [2]), Robbery in the First Degree (PL 160.15[1]), Robbery in the Second Degree (PL 160.10[2][A]), and Assault in the Second Degree (PL 120.05 [1]). On March 30, 2018, the People made an ex parte application, pursuant to the Stored Communications Act, 18 USCS §2703(d), for information regarding the defendant’s cell site location for the three day time period from December 31, 2016 to January 2, 2017.As part of their application for cell site location information (hereinafter “CSLI”), the People attached a seven-page notarized affirmation from an Assistant District Attorney. The affirmation established, in sum and substance, that mobile telephones, when they are switched on, constantly scan to find the cell tower (or “cell site”) which provides it with the strongest signal or best reception. Once the telephone finds that site, it identifies itself by sending the cell site information about its service provider and unique identifiers. The affirmation further established that mobile telephone carriers keep, in the regular course of business, records about which cell site was used at the beginning and end of telephone conversations, as well as other information such as telephone numbers dialed, times and durations of calls, and text messages sent and received. Because those records are kept, cell site information can potentially show the general vicinity of where a mobile telephone was operating during a particular time period in the past.The Assistant District Attorney then established that the defendant’s phone number was (347) 990-XXXX by affirming that the defendant’s ex-girlfriend, Kyia Birmingham, identified that number as the defendant’s phone number to a member of the NYPD. Furthermore, Ms. Birmingham had previously filed a police report against the defendant in which she also gave the defendant’s phone number as (347) 990-XXXX (hereinafter “the defendant’s phone number”). Finally, the defendant had been arrested previously, on an unrelated matter, and had told the arresting officer that his phone number was that same number.The affirmation also delineated the factual basis for the charges against the defendant. On January 1, 2017, the complainant, Michael Coakley, attended a family dinner party at 320 Beach 30th Street in Queens County along with Kyia Birmingham and Sha-Asia Birmingham. Kyia Birmingham told an NYPD sergeant that her ex-boyfriend, the defendant, who was also known as “Weezy”, dropped her off at the party in her Dodge Dart automobile.The affirmation then stated that the complainant stepped outside of 320 Beach 30th Street to make a phone call when he observed a Dodge Dart automobile drive up. As he was walking back towards the house, he was struck, in the head, from behind, with a unknown large object. The complainant turned around and saw that “Weezy” was standing there; Weezy proceeded to punch him in the face several times until he lost consciousness. When he later regained consciousness, his face was bleeding and his watch and cell phone had been removed.Finally, the People’s affirmation established that the District Attorney’s Office had subpoenaed the Sprint Corporation for call logs and text message logs for the defendant’s phone number, and that Sprint’s response indicated that the defendant had made and received multiple phone calls and text messages on January 1, 2017 and January 2, 2017.The People’s application was reviewed and granted by a judge on March 30, 2018.THE DEFENDANT’S MOTION AND THE PEOPLE’S RESPONSEThe defendant alleges that his CSLI was seized unlawfully in violation of his rights under the Fourth and Fourteenth Amendments of the United States Constitution because the “relevant and material” standard for obtaining CSLI under the Stored Communications Act is far lower than the probable cause standard set by Carpenter.The People argue that 1) that Carpenter v. US does not apply to this case because the Supreme Court explicitly limited its holding to the collection of CSLI for seven days or more; 2) that the order signed by the judge fulfilled the requirements of Carpenter because it was effectively a warrant based on probable cause; and 3) that the defendant does not have standing to challenge the use of his cell phone records because he was not the listed subscriber.LEGAL ANALYSISOn June 22, 2018, the Supreme Court of the United States held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI” and that the obtaining of a person’s CSLI is a search. (Carpenter, at 2217). Accordingly, in order to lawfully obtain a person’s CSLI, the government “must generally obtain a warrant supported by probable cause”. (Id., at 2221).As a threshold matter, the Court rejects the People’s argument that the Carpenter Court explicitly limited their holding to the collection of seven days or more of CSLI. In fact, the Supreme Court seemingly held the opposite:[W]e 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.(Id., fn 3). In this case, although the People’s request for CSLI was limited to a three day period, there is no rationale that such a request is not a search.Additionally, the Court rejects the People’s third contention that the defendant lacks standing to challenge the collection of his CSLI records because he is not the listed subscriber. The People cannot have it both ways. They cannot, on one hand, contend that the phone number in question was the defendant’s and that defendant was in possession of the phone at the time he committed crimes, and seek to use that evidence against him, and, on the other hand, argue that he lacks standing because he’s not the listed subscriber for the phone. As the user of the phone, the defendant has an expectation of privacy in its contents, regardless of who pays the bill.In Carpenter, the prosecution had obtained CSLI, by subpoena, pursuant to the Stored Communications Act, 18 USC §2703(d), which requires the government to demonstrate “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” (Id., at 2221). The Carpenter Court held that this language fell “well short of the probable cause required for a warrant” and that an individual does maintain an expectation of privacy in records of their location and that obtaining those records would be a search. (Id.). In order to lawfully obtain CSLI records then, the prosecution must apply for a search warrant supported by probable cause. (Id.).The appropriate inquiry here, with respect to the CSLI records which the defendant has moved to suppress, is whether the court order signed by the court below was supported by probable cause, as required by Carpenter. New York courts have long accepted that a court order can be the equivalent of a search warrant where, “if the application and relief comport with all the requisites of a search warrant, it may be taken for what it is.” (Matter of Abe A., 56 NY2d 288, 294 [1982]). It follows then that, where the government seeks to conduct a search, by way of court order, into an area where an individual has a legitimate expectation of privacy, “the criteria of probable cause and necessity to justify the order should be promptly applied, lest the rights of the individual may needlessly be violated.” (Valdes v. DeRosa, 28 AD3d 781, 782 [2nd Dept 2006]).Since the Carpenter decision, other New York courts have applied a probable cause standard to determine whether CSLI records obtained under the Stored Communications Act prior to Carpenter were obtained lawfully. (see People v. Cutts, 2018 NY Misc LEXIS 5124 [Sup Ct, NY Cty 2018]; People v. Maurice Simpson, Ind 1027/17 [Sup Ct, Queens Cty 2018][unpublished]; People v. Kevin Burgos, Ind 4114/17 [Sup Ct, NY Cty 2018][Ward, J.][unpublished]; People v. Steven A. Strub, Ind 1222/18 [Sup Ct, Suffolk Cty 2018][Collins, J.][unpublished]). In addition, the Appellate Division, First Department has permitted trial courts to examine previously signed court orders to determine whether sufficient probable cause existed to support a search warrant. (People v. Sorrentino, 93 AD3d 450 [1st Dept 2012]).This Court finds that the factual allegations contained in the Assistant District Attorney’s affirmation supporting the order to search for CSLI connected to the defendant’s phone did establish probable cause to believe that relevant and material evidence of the kind specified in the Order would be found within the requested records. Specifically, the People’s affirmation established that mobile telephone companies keep records of the cell phones that communicate with their cell sites, and that those records include information about the physical location of the cell phone. The People established three different bases to show that the defendant’s cell phone number was (347) 990-XXXX, and also delineated the factual basis for the charges against the defendant. Finally, the People’s affirmation established that the defendant’s phone number had made and received multiple phone calls and text messages on January 1, 2017 and January 2, 2017.Therefore, since there was probable cause to support the Order issued to search the defendant’s phone for cell site location information, the acquisition of the defendant’s CSLI did not violate his Fourth and Fourteenth Amendment rights. The defendant’s motion to suppress his CSLI records is denied.This constitutes the decision and order of the Court.Dated: January 30, 2019Queens, New York
