With a constitutional issue of first impression under New York State law, the defendant, Benjamin Destefano, by counsel, moves to suppress evidence that was the result of a warrantless pole camera video surveillance device placed across the street from the defendant’s alleged residence. The determination is hereinafter provided. I INTRODUCTION The defendant, Benjamin Destefano is Indicted for failure to register or to verify as a sex offender as required by Article 6-C of the New York State Corrections Law no later then ten (10) calendar days after any change of address under New York Corrections Law 168-F (4). The defendant was arraigned and plead not guilty on February 6, 2020. The current issue before this Court concerns a pole camera placed upon a utility pole to observe the front of a particular house on Brewster Gate, North Massapequa, Nassau County, New York. The allegations are that the defendant, who claimed he was homeless, was observed entering the Brewster Gate house each night and leaving the next morning for fourteen (14) days, from approximately April 18, 2018 through May 2, 2018. As a result, it is alleged he failed to notify the appropriate law enforcement authorities regarding his change of address under New York State Corrections Law 168-F (4). The defendant, due to the fact this was done without a court ordered warrant, moves to suppress this evidence and it’s “fruit of the poisonous tree”. The People oppose, noting that the motion is not timely made under CPL 255.20 (1). If the Court does reach the merits, the People argue that the defendant is without standing and has no reasonable right to privacy as to the observed coming and going on the front of a house on a public street. Thus, no court ordered warrant is needed. II STATEMENT OF FACTS The following is a review and summary of the facts set forth in the affirmations of both Defense counsel and the Assistant District Attorney. In April of 2018 the Suffolk County Special Victims Squad (Meghan’s Law Unit) with the assistance of the Suffolk County Electronics Investigative Unit installed a pole camera and video recording device on a utility poled at the address at Brewster Gate, North Massapequa, Nassau County, New York. The recording was continuous from April 18 to May 2, 2018. On May 10, 2018, the defendant was arrested and made aware that the utility pole camera footage existed. This information was provided to the defense counsel. The defendant was arraigned on the Indictment February 6, 2020. On June 5, 2020 an Omnibus motion was made by defense counsel, People filed their opposition on June 9, 2020 and another judge of this Court issued a decision on July 30, 2020. The Court notes that, after the defendant provided the District Attorney’s office with “teralyte hard drive”, a copy of the pole camera footage was mailed to the defense counsel on or about June 22, 2020. Thereafter, this motion to suppress the pole camera was submitted by defense counsel on November 12, 2020. The People submitted opposition on November 18, 2020. In October of 2021 this case was transferred to the undersigned judge. This Court will now review the issues presented. III TIMELINES OF THE MOTION The time restrictions for pre-trial motions in criminal proceedings are not casual and are based upon the strong public policy to further orderly trial procedures and preserve scarce trial resources. People v. Jackson, 48 AD3d 891 (3rd Dept. 2008). Under CPL 255.20 (1), all pre-trial motions must be served or filed within forty-five (45) days of arraignment and before the commencement of trial. This motion particularly pertains to the suppression of evidence to be used at trial under CPL 255.10 (f). All pre-trial motions made after forty-five (45) days may be summarily denied by the Court under CPL 255.20 (3). People v. Bunilla, 95 AD3d 898 (2nd Dept. 2012); People v. Gibbs, 210 AD2d 4 (1st Dept. 1994). Here, the defense counsel was informed of the pole video at the time of arrest on May 10, 2018. Although the tape was not available at that time, he was informed of its existence and of the potential issue of the curtilage location. On February 6, 2020 the defendant was arraigned. His Omnibus Motion was filed June 5, 2020 and a decision by the Court was rendered on July 30, 2020. The motion did not address any discussion of the pole camera. The defendant received the actual tape on or about June 22, 2020. The defense motion on this issue was filed on November 12, 2020, nearly five (5) months after receipt of the materials, fully beyond the forty-five (45) days permitted by statute. Thus, the forty-five (45) days period was beyond the receipt of the pole video tape and the defense failed to submit the within suppression motion during that period as well. CPL 255.20 (1)(c). The Court further reiterates the defendant was made aware of this issue on May 10, 2018, fully twenty (20) months from his arraignment on the Indictment. Defense counsel has failed to show good cause or any serious reason whatsoever for failing to make this supplemental motion within the forty-five (45) day period. People v. Cimino. 49 AD3d 1155 (4th Dept. 2008). Also, this issue could have, at least on an initial level, could have been included in the defendant’s Omnibus Motion, and therefore prohibits him from a subsequent remedial motion. It is well established that if a motion is required to be included in an Omnibus Motion and is not made at the appropriate time, it is proper to deny the supplemental motion. People v. Falcon, 281 AD2d 368 (1st Dept. 2001). Accordingly, the motion is denied for failure to file within forty-five (45) days under CPL 255.20 (1). IV CONSTITUTIONAL ISSUES A) STANDINGS Although this motion was made in an untimely manner and is to be denied accordingly, a serious issue of first impression has been presented to this Court. Therefore assuming arguendo this Court shall review the defendant’s application on the merits. Therefore, the Court will now consider the defendant’s claim of suppression as it concerns the pole camera that video recorded the front of the property from April 18, 2018 to May 2, 2018. The defendant claims standing for this suppression motion based upon his acknowledgment that he keeps some possessions, his cats and occasionally sleeps over at the Brewster Gate residence. Under both New York State and Federal Law, a defendant moving to suppress evidence on constitutional grounds, must establish an expectation of privacy in the place searched which society would recognize as reasonable. People v. Ramirez-Portoreal, 88 NY2d 99 (1996); United States v. Hagg, 278 F.3d 44 (2nd Cir. 2002). Reasonableness can be determined by several examples, such as in People v. Edwards, 124 AD3d 988 (3rd Dept. 2015), where the Appellate Division accorded standing to a frequent overnight guest in an apartment. However, a different court denied standing where a visitor had “relatively tenuous ties to a house” (see People v. Pope, 113 AD3d 1121 [4th Dept. 2014]). These are factual issues best resolved at a court hearing. For purposes of review of the defendant’s motion, the Court will assume the defendant possesses standing as to the North Massapequa house. B) CURTILAGE One of primary arguments of defense counsel is that by placing a pole camera and video recording device on a utility pole to observe the “curtilage” of the defendant’s property without a court ordered warrant, the video contents must be suppressed. The questions is whether or not what was observed is in fact curtilage? The determination of whether an area falls within a house’s curtilage may be made by reference to four factors (1) the proximity of the area claimed to be curtilage to the house (2) whether the area is included within an enclosure surrounding the house (3) the nature of uses to which the area is put and (4) the steps taken by the resident to protect the area from observation by people passing by. People v. Theodore, 114 AD3d 214 (2nd Dept. 2014). In Theodore, the Appellate Division held that a blocked-off rear yard was part of the curtilage, far different facts from the case at bar. Here, upon review of the four factors set forth in Theodore, it is clear that the pole camera was (1) situated on a utility pole across the street (2) was not observing an enclosed area (3) the area observed was not being personally and secretly used by the defendant, and (4) there were no grounds to protect the area from observation as it is open to the public, and is in the visible front of the premises. Therefore, unlike closed-in areas such as back yards or land purposely blocked by neighbor’s high fence or by significant distance, the pole surveillance camera is clearly not observing the curtilage of the premises. People v. Morris, 126 AD3d 813 (2nd Dept. 2015); People v. Reilly, 195 AD2d 95 (3rd Dept. 1994). C) Requirement of a Court Ordered Surveillance Warrant The primary focus of the defendant’s motion is directed on the issue of the failure of law enforcement personnel to secure a court ordered warrant to install the surveillance camera across the street of the defendant’s alleged residence to observe his comings and goings over a several week period. Defense counsel argues that this conduct is in violation of both the Federal and New York State Constitutions, and as such, must be suppressed, along with any “fruit of the poisonous tree”. The issue that defense counsel sets forth has not been addressed by the United States Supreme Court or in any New York State Court. Thus, this issue is one of essentially first impression under New York case law. The Fourth Amendment to the United States Constitution consists of just fifty-four (54) words, and reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Article 1, section 9 of the New York State Constitution is identical in language. While both constitutions confer similar rights, New York State Courts have had a history of expanding the rights of state residents beyond those required by the Federal Constitution when long standing state interest is involved. People v. Robinson, 97 NY2d 341 (2001). Such action by the New York State Courts, must be “cautiously exercised”. People v. Reynolds, 71 NY2d 552 (1988). However, due to the absence of state or federal controlling authority on this particular issue, it does not appear to be a factor regarding the case at bar, and as such, it can be assumed, at least at the moment, that both constitutions confer similar rights. People v. Lucas, 183 Misc 2d 639 (Sup. Ct. Monroe Co. 1999). Also, it has been noted that a trial court, such as this court, should not independently interpret the New York State Constitution to expand the rights afforded by the Fourth Amendment of the Federal Constitution. People v. Brewer, 173 Misc 2d 520 (Sup. Ct., Queens Co., 1997). The key to the requirement of a search warrant under both Federal and State conditions is based on the judicial concept of the individual’s reasonable expectation of privacy, a test that was originated in Katz v. United States, 389 U.S. 347 (1967). The two-part test established in Katz states that (1) an individual has exhibited an actual (subjective) expectation of privacy and (2) that expectation is one that society is prepared to recognize as reasonable (Katz, supra, Harlan, J. concurring opinion). As time has progressed, we now and continue to live in an era of more and more technological advances. In the landmark case of United States v. Jones, 565 U.S. 400 (2012) the Supreme Court held that installing a global positioning sphere (GPS) tracking device on a motor vehicle and using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment, thus requiring a warrant. Three years earlier, the New York Court of Appeals reached a similar determination under New York Constitutional Law in People v. Weaver, 12 NY3d 433 (2009). Six years after Jones, in its decision in Carpenter v. United States, 585 U.S. —, 138 S. Ct. 2206 (2018) the Supreme Court determined that the government’s warrantless inspection of cell site location information (“CSLI”) to track a person’s movements violated that person’s reasonable expectation of privacy. Cell site location information is unique, according to the Court, because “[m]apping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts.” Thus, “the time-stamped data provides an intimate view into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.”‘ The government’s use of CSLI provided it with information it would not have otherwise been able to obtain. Commentators have questioned the extent to which the Carpenter decision’s rationale will permeate Fourth Amendment doctrine when applied to other factual contexts. However, when applied to the factual concerns in the case at bar, there are several distinctions that can be made. While New York is without case law discussing the issue of pole cameras, several federal circuits have ruled on the subject. Prior to Carpenter, in United States v. Houston, 813 F.3d 282 (6th Cir. 2016) the Sixth Circuit Court of Appeals held that the warrantless use of a stationary video camera, installed on the top of a public utility pole, approximately 200 yards from the property on which defendant resided, which recorded the property over an approximate 10 week period, did not violate defendant’s rights under the Fourth Amendment, since defendant had no reasonable expectation of privacy in video footage in that it captured the same views enjoyed by passers-by on public roads, and the officers could have engaged in live surveillance of the property for that 10 week period. Several post Carpenter decisions have come down from the circuits supporting the opinion set forth in Houston as well. In United States v. Moore-Bush, 963 F.3d 29 (1st Circ. 2020) the First Circuit Court of Appeals reversed a U.S. District Court holding that a pole surveillance camera set up across the street that observed a part of the side door, attached garage and driveway, all that could be observed across the street did not require a court order. The surveillance lasted eight months in 2017 into 2018 and was monitored on occasion, sometimes using the camera’s zoom, pan and tilt features to read license plates and facial appearances on individuals. The case is now being heard “En Banc” by the entire First Circuit Court of Appeals. United States v. Moore-Bush, 982 F3rd 50 (1st Cir. 2020). In United States v. Tuggle, 4 F. 4th 505 (7th Cir. 2021) the Seventh Circuit Court of Appeals also denied the requirement of a court ordered camera warrant. Here, the period of observation was for 18 months, and consisted of three surveillance cameras: two across the street, and one further down the street. The court noted the cameras “captured events observable to any ordinary passers-by”. It should be noted that this case has certiorari pending before the United States Supreme Court. All of the aforementioned case law focuses on the fact that the observable area in the front of a person’s property does not qualify as an area where there would be an expectation of privacy. This police conduct can be distinguished from situations where the observants are intruding into a backyard blocked by a ten (10) foot metal fence, United States v. Cuevas-Sanchez, 821 F2d 248 (5th Cir. 1987), or the use of thermal imaging to monitor heat emanating from the interior of a premises. Kyllo v. United States, 533 U.S. 27 (2001). These cases involve issues where the surveillance would not be readily available to public view. New York case law provides no direct guidance on these constitutional issues. However, it has been held under New York case law that there was no legitimate expectation of privacy as to the front doorway of a private home “standing there, exposed to public view”. People v. Reynoso, 309 AD2d 769 (2nd Dept. 2003). The New York Courts have also re-affirmed its adherence to Carpenter regarding the requirement of warrants for cell phone tower searches. People v. Martinez, 198 AD3d 817 (2nd Dept. 2021). All this, however, does not address this issue of posted surveillance cameras in the New York Courts. Therefore, this Court will rely on the Federal Circuits in their interpretation of this Constitutional issue. This Court concurs with the Fourth Amendment holdings set forth in Houston, Moore and Tuggle. Accordingly, government’s use of a technology in public use, while occupying a place it is lawfully entitled to be, to observe plainly visible happenings, does not run afoul of the Fourth Amendment of the United States Constitution. The Fourth Amendment did not preclude officers’ isolated and warrantless use of a stationary video camera installed on top of public utility poles on public property and directed at home of defendant. The defendant did not exhibit an actual subjective expectation of privacy in the goings-on outside of the house, as nothing has been erected as to fences nor did he otherwise try to shield the front of the house from public view, which might have signaled he feared the wandering eye or camera lens on the street. The pole camera did not penetrate walls or windows of defendant’s house so as to hear and record confidential information, nor did they explore details of defendant’s house that would previously have been unknowable without physical intrusion. In addition, the technology in the case at bar is far from cutting edge, and has been in existence at least since the 1980′s. Also, the “intrusion” allegedly imposed on the defendant was far below the level of the Federal Circuits. Tuggle had three (3) separate pole cameras and directly observed the property and far down the street for a period of eighteen (18) months. Moore-Bush was eight (8) months and the police could “zoom in” for license plates and facial recognition. Houston, although less time at ten (10) weeks, was still greater time than the case at bar. Here, the period of surveillance lasted merely fourteen (14) days and there was only one camera, which was stationary without special features. In addition, the Court notes that the government’s warrantless use of a stationary video camera installed on top of public utility poles on public property and directed at defendant’s home for fourteen (14) days was not a “search” under the “mosaic theory” which held that a government could learn more from a given slice of information if it could put that information in context of broader pattern, namely a “mosaic”. This was first presented in United States v. Maynard, 615 F3d 544 (D.C. Cir. 2010). Here, cameras exposed no details about where defendant traveled, what businesses he frequented, with whom he interacted in public, or whose homes he visited, among many other intimate details of his life. The cameras only highlighted defendant’s lack of movement, surveying only the time he spent at home and thus not illuminating what occurred when he moved from his house. Given it’s immobile nature, the camera could not make out an exhaustive record of defendant’s “hitherto routine” because much if not most of the relevant details occurred outside of immediate area in front of the defendant’s house. These circumstances under the “mosaic theory” are applicably different from the case at bar, compared to the United States Supreme Court rulings in Jones (Car installed GPS) or Carpenter (cell phone tower), both of which dealt with facts involving a vast “mosaic” of research on the various daily whereabouts of the defendants in those cases. CONCLUSION As technology advances, we as a society are approaching a future of ubiquitous public cameras in numerous locations. As times evolve, this case at bar is but one example of the new challenges to the Fourth Amendment. There will clearly be many more to come. Accordingly, this Court holds that (1) defendant failed to make a timely motion under CPL 255.20 and as such this motion is denied and (2) assuming arguendo this Court reaches the merits of the motion, this Court holds the United States Constitution and New York State Constitution does not preclude the officer’s warrantless use of a stationary camera installed on top of a public utility pole across the street and directed at the defendant’s front property for a period of fourteen (14) days where the area was clearly visible to the public and could have been observed by a passer-by and therefore was not a violation of the defendant’s expectation of privacy. Accordingly, the motion is denied in its entirety. As such, there is no necessity to reach the issue of “the fruit of the poisonous tree”. In making this determination, the Court reviewed the motion papers of defense counsel and the Affirmation of Opposition of the People. This determination shall constitute the decision and Order of the Court. It is, SO ORDERED. Dated: February 18, 2022
