DECISION AND ORDER The defendant is charged with Robbery in the Second Degree and other related charges. The defendant moved for an order controverting the search warrant and suppressing the evidence seized pursuant to the search warrant on May 12, 2023. The People filed opposition on May 29, 2023. The motions were made in Part 17 where the case was pending and the Part 17 judge sent the motions to TAP-2 for decision. Factual Background A robbery occurred on July 30, 2022, on a subway car. The perpetrator was not apprehended when the crime was reported. Video footage from the time and place of occurrence showed one of the suspects exiting the stopped train onto a subway platform, and again while exiting the station. The NYPD compared the image of the suspect’s face from the video footage with an internal database and determined the defendant to be a potential match. The complaining witness identified the defendant as one of the people who robbed him during a photo array procedure conducted by the NYPD on August 12, 2022. On October 27, 2022, the People obtained an Order authorizing the use of a pen register and trap and trace device for an Instagram profile that they believed was associated with the defendant. Data retrieved through this process linked the Instagram account to a phone number. Further investigation by the NYPD revealed that a phone call from that same number was made by the defendant on September 27, 2022.1 The phone number is administered by AT&T. On November 17, 2022, the People, through affidavits of ADA Melody Huang and Detective Andrew Scampoli, applied for and obtained, pursuant to CPL Section 690, a search warrant for GPS and cell site information stored by AT&T relating to the subject phone number from the period of October 18, 2022 — December 17, 2022. They also applied for and obtained an order authorizing the use of a cell site simulator and pen register/track and trace device pursuant to CPL §§705.10 and 705.15 during that same timeline. Both orders were issued by the Honorable Justice Guy Mangano. Probable Cause The Fourth Amendment of the United States Constitution and the New York Constitution, article I §12 provides that “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 search, and the persons or things to be seized.” There is a presumption of validity attached to a warrant, which has already been reviewed by the issuing Judge (People v. Ortiz, 234 AD2d 74, 75-76 [1st Dept. 1996], lv. Denied sub nom. People v. Cortijo, 89 NY2d 94 [1997]). “[A] challenge to the facial sufficiency of a written warrant application presents an issue of law which does not require a hearing and which the court properly decides by reviewing the affidavits alone in order to determine whether they establish probable cause (citations omitted).” (People v. Dunn, 155 AD2d 75, 80 [4th Dept. 1990], aff’d., 77 NY2d 19 [1990]). Probable cause exists “when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it” (CPL §70.10[2]; People v. Bigelow, 66 NY2d 417, 423 [1985]; People v. Maldonado, 86 NY2d 631, 635 [1995]; People v. McRay, 51 NY2 594, 602 [1980]). “To establish probable cause, a search warrant application must provide sufficient information ‘to support a reasonable belief that evidence of a crime may be found in a certain place’ (citation omitted).” (People v. German, 251 AD2d 900, 901 [3rd Dept. 1998], appeal denied, 92 NY2d 769 [2002]). Thus, “[i]n reviewing the validity of a search warrant to determine whether it was supported by probable cause…the critical facts and circumstances for the reviewing court are those which were made known to the issuing Magistrate at the time the warrant application was determined’ (citations omitted) (People v. Sall, 295 AD2d 812, 813 [3rd Dept. 2002], appeal denied, 98 NY2d 771 [2002]. A presumption of validity attaches to a search warrant approved by a magistrate who reviews the underlying application and finds sufficient evidence of probable cause (People v. Castillo, 80 NY2d 578, 585 [1992]; People v. Calise, 256 AD2d 64, 65 [1st Dept 1998]). Further, as a general rule, in determining the sufficiency of an affidavit submitted in support of a search warrant application that relies on unsworn hearsay information, New York continues to apply the two-prong test of Aguilar-Spinelli as a matter of state Constitutional law. (See People v. Griminger, 71 NY2d 635 [1998]). The Aguilar-Spinelli test “provides that hearsay information from a hearsay informant…may not be used unless the source of his knowledge is revealed and the informant is of known reliability (citations omitted).” (People v. Edwards, 95 NY2d 486, 495 [2000]). In the instant proceeding, the Court finds that Detective Scampoli had a sufficient basis of knowledge based on his comparisons of photographic and video evidence from two difference occasions where he was able to identify the defendant, Nicholas Higgins, as the individual accused of perpetrating the subject robbery. The defendant’s face was used to associate him with an Instagram account, and the account was linked to the phone number that was the subject of the warrant. Law enforcement obtained a pen register and trap and trace device from a prior order and received information directly from Meta, Inc., the operators of Instagram. Accordingly, the information contained in the search warrant application was sufficiently reliable. The court has reviewed the grand jury submission in this case and believes there to be probable cause that the defendant committed the robbery he stands accused of. The defendant argues, however, that the People have failed to establish probable cause that the search warrant would yield evidence of the crime he is accused of. Defendant rightly points out that at the time the warrant was issued, he was already a suspect. In fact, the People state in their opposition that the defendant had already been indicted at the time that he was apprehended. CPL Article 690 authorizes a search warrant for GPS location and cell-site information, where probable cause exists to believe that a person committed a crime and that such information can be used to locate and apprehend that person. See People v. Davis, 72 Misc. 3d 580, 592 (Sup. Ct. Bronx Co. 2021) (“It simply makes no sense that where probable cause exists that a person committed a crime and that GPS information can be used to locate and arrest him, that CPL Article 690 would not authorize the issuance of a search warrant to do so.”) See also People v. Cutts, 62 Misc. 3d 411, 415 (Sup. Ct. N.Y. Co. 2018) (finding that cell site information and GPS were relevant to an ongoing criminal investigation of the defendant). Here, the People sought the search warrant because they could not locate the defendant and needed to locate him to place him under arrest and further their investigation of the charges against him. As the People note, police apprehension of the defendant was a necessary step in the process of gathering evidence against him. Historical data, dating back to roughly one month prior to the issuance of the warrant, might provide law enforcement with a bead on his residence or general whereabouts which could be honed using GPS pinging and the cell site simulator to locate the defendant. Prospective information, for the month that followed, would likewise be used to locate the defendant close in time to his attempted apprehension. Thus, the court concludes that the search warrant was supported by probable cause, and that there was probable cause that its issuance would yield evidence against the defendant. “(T]he challenged search warrant application, interpreted in a common sense manner (citations omitted), provided sufficient information to support a reasonable belief that evidence of a crime would be found (citations omitted).” People v. Green, 10 AD3d 731, 731-32 (2nd Dept. 2004), appeal denied, 4 NY3d 744 (2004). Overly Broad and Insufficiently Particular The test for determining the sufficiency of the description of the premises or object to be searched has been described by the Court of Appeals as a “common sense test.” See People v. Nieves, 36 NY2d 396 (1975). It is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended to be searched (People v. Sprague, 47 AD2d 510, 511 [3rd Dept 1975]; citing Steele v. US No. 1, 267 US 498, 503 [1925]). The particularity of the description of the property seized “necessarily depends on the facts and circumstances of each case (People v. Nieves, id at 402). The description of the property seized must be a specific as reasonably possible under the circumstances (see People v. Hulson, 178 AD2d 189, 190 [1st Dept 1991]; see also United States v. Galpin, 720 F3d 436, 446 [2d Cir 2013]). The warrant here is not vague. It identifies the specific offense for which there is probable cause, the phone to be searched and tracked, and the data sought — Namely, data that would allow law enforcement to locate the subject phone, and thus the defendant. The defendant forcefully argues that the authorization of a cell site simulator for a two-month period is far broader than the purpose outlined, and implicates privacy interests of not only the defendant, but the surrounding community. However, the warrant explicitly authorized the use of the cell site simulator to be limited to two occasions, for 4 hours during each occasion. The warrant was executed within those strictures, as the cell site simulator was only activated on December 1, 2022, and December 8, 2022, when the defendant was apprehended. The court finds that the warrant was not overly broad, and that it was sufficiently particular as to what was sought. Not Executed by Law Enforcement The defendant argues that because AT&T, a private corporation, acted to search for and provide data as part of the search warrant’s execution, that it was not executed by police offices in compliance with CPL §690.25. However, cell phone location tracking data is obtained pursuant to 18 U.S.C. §2703(d), a provision of the Stored Communications Act (SCA). See People v. Rubin, 143 A.D.3d 846, 847 (2d Dept 2016) (citation omitted); People v. Sorrentino, 93 A.D.3d 450, 451 (2012). The SCA permits execution of a warrant without the presence of a police officer. 18 U.S.C. §2703 (g). The SCA does not require an SCA warrant to be executed according to state procedures, only according to state law. See People v. Sime, Misc. 3d 2018 NY Slip Op 28360 at *11-12 (N.Y. Cty. Crim. Ct., Nov. 20, 2018) (Frey, J.) Accordingly, the warrant was validly executed despite the involvement of AT&T. Executed Out of State The defendant argues that because AT&T has corporate headquarters in Florida and Texas, citing CPL §690.20(1). The court finds a sufficient nexus to New York based on the facts that AT&T is an international corporation that does significant business in New York, and that the warrant was sent to AT&T by the Kings County DA’s office from a New York computer, and the NYPD used the information from AT&T to apprehend the defendant in New York, where he is being prosecuted. Eavesdropping Warrant The defendant argues that the warrant in this case was functionally an “eavesdropping warrant,” and that the People have failed to meet the statutory criteria for an eavesdropping warrant. The court agrees with the second contention. As to the first, the court recognizes that “pinging” cell phones to determine GPS locations has been analogized to the use of other GPS devices, which are searches as contemplated by the Fourth Amendment. See People v. Lamb, 164 AD3d 1470 (2d Dept 2018); People v. Gordon, 58 Misc. 3d 544 (Kings Co. Sup. Ct. 2017). However, the legislature has amended the definition of “eavesdropping” in CPL §700.05(1) specifically to exclude “the use of a pen register or trap and trace device when authorized pursuant to article 705 [of the CPL].” In People v. Martello, 93 NY2d 645, 654 (1999), the Court of Appeals took notice of that amendment, holding that “the CPL article 705 definition of ‘pen register,’ combined with the operative effect of the Legislature’s express exclusion of pen registers from the CPL article 700 definition of ‘eavesdropping,’ shows a legislative intent to view all pen registers, including those readily adaptable as eavesdropping devices, as pen registers and not, as Bialostok held, as eavesdropping devices.” Accordingly, a search warrant pursuant to CPL Section 690 was acceptable. Bialostok and McDuffie Hearings The defendant requests a factual hearing pursuant to People v. Bialostock 80 NY2d 738 (1993), to determine whether the warrant was executed in such a fashion as to make it functionally an eavesdropping warrant, and People v. McDuffie, 58 Misc. 3d 524 (N.Y. Sup. Ct. 2017), to fully explain the extent and results of the use of GPS pinging. The court does not find these hearings to be necessary. The People have laid out the full extent of the use of the cell simulator and pen register in the execution of this warrant. There were two occasions: December 1, 2023, when NYPD attempted to locate the defendant inside of a residential apartment building and were unable to; and December 8, 2023, when NYPD geolocated the defendant inside of a public park and found him on a bench during a foot canvass. This activity does not constitute the use of an eavesdropping device. See Martello, supra. CONCLUSION Accordingly, it is hereby: ORDERED, that the defendant’s motion to controvert the search warrant is DENIED. This case is scheduled for June 1, 2023, in Part 17. This opinion shall constitute the decision and order of the Court. Dated: May 31, 2023
