Supreme Court, Bronx County, March 14, 2019

The Legal Aid Society (Caroline M. McGrath of counsel) for defendant.

Darcel D. Clark, District Attorney (Thomas B. Litsky of counsel), for plaintiff.

Defendant Sasha Edwards moves to suppress two items, namely: (1) cellular telephone call records for defendant's cellular telephone that were obtained by the New York City Police Department (NYPD) by means of an administrative subpoena (the administrative subpoena) issued by the NYPD to the cellular telephone carrier T-Mobile on or about January 17, 2017; and (2) cell site location information (CSLI) for defendant's cellular telephone that was obtained by the Bronx County District Attorney's Office from T-Mobile by means of a December 17, 2017 "Order Pursuant to 18 USC § 2703 (d)" issued by the Honorable Shari Michels.

The latter application raises a number of interesting issues concerning the scope and reach of the recent decision of the U.S. Supreme Court in Carpenter v United States (585 US —, 138 S Ct 2206 [2018]).

Both branches of the motion to suppress are denied for the reasons detailed below.

The January 17, 2017 administrative subpoena issued by the NYPD called for the records of defendant's incoming and outgoing cellular telephone calls for a two-month time frame between November 17, 2016, and January 17, 2017. These cellular telephone call records did not supply the content of any calls. They instead revealed only (a) the times at which [*2]incoming and outgoing calls were placed, and (b) the telephone numbers to which calls were placed and from which calls were received. These call records are important because they tend to substantiate the allegation that defendant lured the complainant—a Chinese food delivery man—to defendant's own building through a series of cellular telephone calls in order to rob the complainant at gunpoint of cash (and Chinese food) in the lobby there.{**63 Misc 3d at 829}

The People assert that the NYPD possesses the legal authority to issue such a subpoena pursuant to Administrative Code of the City of New York § 14-137. Defendant, however, maintains that the power to issue a subpoena that is conferred by that Administrative Code provision is limited to internal administrative issues directly affecting the Police Department, and does not extend to an ordinary criminal investigation of a civilian defendant.

Defendant relies chiefly in this regard on the decision of the trial court in People v Adeniran (2012 NY Misc LEXIS 6651 [Sup Ct, Queens County 2012]). However (as defendant himself properly concedes in his excellent motion papers), the trial court's decision in Adeniran was reversed in People v Adeniran (116 AD3d 706 [2d Dept 2014], lv denied 24 NY3d 1081 [2014]). In Adeniran the Appellate Division did not reach the question whether the NYPD is authorized to issue an administrative subpoena in order to investigate ordinary civilian crimes, explaining that "[e]ven assuming, arguendo, that the subpoena was improperly issued, the defendant had no standing to challenge the validity of the subpoena." (116 AD3d at 706 [emphasis added].)

Adeniran is directly on point there. Whether or not the January 2017 NYPD administrative subpoena was properly issued here—concededly, a troubling issue for all the reasons ably set forth in defendant's motion papers—defendant has no standing to challenge that subpoena.

The decision of the Appellate Division, Second Department in Adeniran is binding on this court. (Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984].)

Accordingly, defendant's motion to suppress the cellular telephone call records obtained by means of the January 2017 NYPD administrative subpoena in this case must be denied.

The Section 2703 (d) Order

Justice Michels' December 17, 2017 order directed T-Mobile to produce cell site location information for defendant's cellular telephone for a two-day period from November 27 through 28 of 2016. (It is alleged that defendant robbed the victim in the lobby of the defendant's building on the evening of November 27, 2016.)

Justice Michels' order was issued pursuant to section 201 of the Stored Communications Act. (18 USC § 2703 [d]; see 18{**63 Misc 3d at 830} USC § 2701 et seq.) Justice Michels' order was based on the statutory finding required by that statute that there were "reasonable grounds" to believe that the information sought was relevant and material to an ongoing criminal investigation. (18 USC § 2703 [d] [emphasis added].)

This statutory "reasonable grounds" standard is far easier to satisfy than the traditional Fourth Amendment requirement that a search warrant application must demonstrate probable cause to believe that evidence of a crime will be found. (See Carpenter v United States, 585 US —, —, 138 S Ct 2206, 2221 [2018] [the "reasonable grounds" showing required by section 2703 (d) "falls well short of the probable cause required for a warrant"].)

As the prosecutor's December 13, 2017 application that led to Justice Michels' order set forth, long before that order was sought the victim had already identified defendant Edwards [*3]as the robber in both a photo array and a lineup. Indeed, defendant had already been indicted by a Bronx grand jury for the robbery. Thus there was more than ample probable cause to support the prosecution's request for CSLI data.

Nevertheless, because the People sought an order issued pursuant to the Stored Communications Act—and not a search warrant—Justice Michels employed the less rigorous statutory "reasonable grounds" standard; she did not make a probable cause finding as would be required for a traditional search warrant.

Justice Michels' use of the "reasonable grounds" standard was wholly proper and consistent with both the Stored Communications Act (which was presumptively constitutional) and with New York law and practice at that time. For many years prior, New York prosecutors (like their counterparts all across the country) had routinely sought and were routinely granted CSLI orders utilizing the Stored Communications Act's statutory "reasonable grounds" standard.

New York courts had in turn consistently upheld such CSLI orders and found that no search warrant was necessary in such a case. Until very recently, the view of the New York courts was that no warrant was necessary because no "search" within the meaning of the Fourth Amendment occurs when CSLI data is obtained. That was so both because (a) a defendant has no legitimate expectation of privacy in his or her location when moving about in public, and (b) CSLI data is already known to a defendant's cellular telephone carrier. (See People v{**63 Misc 3d at 831}  Taylor, 158 AD3d 1095 [4th Dept 2018]; People v Jiles, 158 AD3d 75 [4th Dept 2017]; People v Sorrentino, 93 AD3d 450 [1st Dept 2012]; People v Hall, 86 AD3d 450 [1st Dept 2011].)

That was also the nearly uniform view of the federal courts prior to Carpenter. (See United States v Thompson, 866 F3d 1149 [10th Cir 2017]; United States v Graham, 824 F3d 421 [4th Cir 2016]; United States v Davis, 785 F3d 498 [11th Cir 2015]; In re United States for Historical Cell Site Data, 724 F3d 600 [5th Cir 2013].)

Carpenter and Short-Term CSLI

In June of 2018, however, the United States Supreme Court decided the landmark case of Carpenter v United States (585 US —, 138 S Ct 2206 [2018]). In Carpenter, a narrow 5-4 majority of the Supreme Court held that even though cell site location data is known to a third party—that is, the cellular telephone carrier—a person retains a legitimate expectation of privacy in the record of his physical movements as captured through long-term CSLI data. Carpenter therefore found that a search warrant based on probable cause is required for long-term CSLI data, and that section 2703 (d) is unconstitutional because it permits the government to obtain CSLI data on a lesser showing of "reasonable grounds."

However, the Carpenter Court at the same time expressly declined to say whether a Fourth Amendment "search" takes place where the government obtains CSLI data for a limited period of fewer than seven days. (See Carpenter, 585 US at — n 3, 138 S Ct at 2217 n 3.)

It is important to note that the order in this case is for a period of only two days. Thus it is not at all clear whether, according to Carpenter, any "search" within the meaning of the Fourth Amendment took place here.

This is not a case where the People were using CSLI data in an effort to trace all of defendant's movements over an extended period of time as part of a long-term investigation into defendant's whereabouts and conduct.

Rather, the clear and expressly stated limited purpose of the application that led to the [*4]order at issue here was to show that defendant was indeed present at the scene of the robbery—a public place—at the moment that the victim was robbed. (As stated in the People's Dec. 13, 2017 application for the order at issue: "The People are requesting the T-Mobile records . . . because these records are relevant to this criminal prosecution.{**63 Misc 3d at 832} The records may establish whether defendant's cellular telephone was in the vicinity of 2090 Morris Avenue when the robbery occurred" [emphasis added].)

As a result if any case would seem to fall into the category of short-term CSLI data that the Supreme Court expressly carved out from its Carpenter decision, this would appear to be that case.

The Supreme Court had good reason to expressly exempt short-term CSLI data from its Carpenter decision. Gathering long-term CSLI data is much more clearly an invasion of a cellular telephone holder's legitimate expectation of privacy; it is, in a sense, the modern day electronic equivalent of sending a government spy out to follow the defendant both day and night, wherever he or she goes, in public or in private. (See Carpenter, 585 US at —, 138 S Ct at 2218 ["Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government's view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment"].)

By way of contrast, in this court's view, short-term CSLI data that is carefully targeted to a specific time in order to determine whether defendant was present at the scene of a crime that was committed in a public place is not a search, and is therefore not subject to Fourth Amendment warrant requirements.

The difference between long-term and short-term CSLI data is stark: long-term data can be likened to filming a person's entire life for weeks, or months, or even years; short-term CSLI data is like taking a single snapshot of that person on the street. (See United States v Jones, 565 US 400, 418-419 [2012, Alito, J., concurring in the judgment] [short-term GPS monitoring does not constitute a search, but long-term GPS monitoring does]; see also People v Weaver, 12 NY3d 433 [2009] [distinguishing short-term visual surveillance of a car from far more intrusive long-term GPS monitoring].)

All that will be revealed by the short-term CSLI data in this case is whether defendant was in fact present in or near the lobby of the defendant's apartment building when the victim was robbed at gunpoint there. Anyone who was passing through that lobby or walking on the street nearby on that early November evening could have seen the very same thing. Thus obtaining this CSLI data did not invade any legitimate expectation of privacy.{**63 Misc 3d at 833}

Accordingly, this court now finds that obtaining the records authorized by Justice Michels' CSLI order in this case—specifically targeted and narrowly drawn in order to determine whether the defendant was present when a gunpoint robbery was committed in a place open to public view—was not a Fourth Amendment "search," and did not require a search warrant. For this reason, the motion to suppress should be denied.

Order Equivalent to Warrant

Because Carpenter is a new decision and its scope not yet fully explored, however, it is useful to further note other independent grounds for denying defendant's motion. There are at least two. First, the Appellate Division, First Department has held that where—as here—an application for a CSLI order makes out probable cause, the resulting CSLI order is the equivalent [*5]of a search warrant, even though the issuing court used the lower "reasonable grounds" to believe standard called for by 18 USC § 2703 (d). (People v Sorrentino, 93 AD3d 450 [1st Dept 2012]; see also Matter of Abe A., 56 NY2d 288, 294 [1982] ["Nomenclature notwithstanding, if the application and the relief comport with all the requisites of a search warrant, it may be taken for what it is"].)

Here, as noted, the People's application for the CSLI order correctly pointed out that the victim had identified defendant as the robber in both a photo array and a lineup. Thus there was ample probable cause to support a search warrant. Accordingly, Justice Michels' order should be treated as the equivalent of a properly issued search warrant based on probable cause, and the motion to suppress should be denied. (Sorrentino.)

Krull and Good Faith

Second—and perhaps more interestingly—assuming only for argument's sake that this case is governed by Carpenter (and does not fall within Carpenter's apparent "short-term" CSLI exception), the clear emerging trend in both the New York state and federal courts has been to find that data obtained from a CSLI order issued prior to Carpenter need not be suppressed pursuant to the Fourth Amendment exclusionary rule.

These cases have held that suppression of such data is not required because it was gathered in reliance on a statute only later found to be unconstitutional—namely section 2703 (d) of the federal Stored Communications Act. (See e.g. United States{**63 Misc 3d at 834} v Elmore, 917 F3d 1068 [9th Cir 2019]; United States v Goldstein, 914 F3d 200 [3d Cir 2019]; United States v Curtis, 901 F3d 846 [7th Cir 2018]; United States v Chambers, 751 Fed Appx 44 [2d Cir 2018], cert denied 586 US —, 139 S Ct 1209 [2019]; United States v Christian, 737 Fed Appx 165 [4th Cir 2018], cert denied 586 US —, 139 S Ct 1204 [2019]; United States v Leyva, 2018 WL 6167890, 2018 US Dist LEXIS 199327 [ED Mich, Nov. 26, 2018, No. 16-cr-20723]; People v Cutts, 62 Misc 3d 411 [Sup Ct, NY County 2018] [collecting New York authorities]; People v Kevin Burgos, Sup Ct, NY County, 2018, Ward, J., index No. 4114/17 [unpublished, attached as People's exhibit 7]; see also Nathaniel Sobel, Four Months Later, How Are Courts Interpreting Carpenter?, Lawfare, Oct. 18, 2018, https://www.lawfareblog.com/four-months-later-how-are-courts-interpreting-carpenter ["(T)he good-faith exception has barred defendants in pending criminal appeals from suppressing cell-site location information, or CSLI, evidence obtained in searches that pre-date Carpenter; every federal court to consider such a motion has ruled for the government"].)

The legal principle that underlies this trend is that set forth in Illinois v Krull (480 US 340 [1987]). In that case the U.S. Supreme Court held that exclusion is not an appropriate remedy where a warrantless search has been conducted in good faith reliance on a statute later found to be unconstitutional. To apply the exclusionary rule in that circumstance, the Krull Court explained, would do little to advance the exclusionary rule's central purpose—which is to deter future police misconduct—because "[p]enalizing the officer for the [legislature's] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." (Krull, 480 US at 350.)

The clear trend among New York and federal courts to deny exclusion of pre-Carpenter CSLI data obtained pursuant to section 2703 (d) is a logical one, both as a matter of policy and simple justice. The Stored Communications Act has been the law of the land for more than 30 years. To invalidate the hundreds, perhaps thousands, of CSLI orders that were issued by courts pursuant to the Act prior to Carpenter would, of course, work massive disruption to the criminal justice system, and would call into question a large number of convictions—all for reasons [*6]having nothing to do with guilt or innocence.

At the same time, no significant deterrence would be achieved by exclusion, because these pre-Carpenter CSLI{**63 Misc 3d at 835} orders were sought and granted in full compliance with the federal statute and with the case law as it existed prior to Carpenter.

For these reasons, it makes little sense to apply the exclusionary rule to these pre-Carpenter CSLI orders. As Justice Ward eloquently explained in Burgos: "Suppression of the CSLI would not deter unlawful searches by removing an incentive. Rather, the People acted in compliance with the governing law in New York when they requested the order and suppression would only result in a detrimental impact upon the truth-finding process." (See People v Young, 55 NY2d 419, 425 [1982] [application of the exclusionary rule depends on balancing deterrent effect against detrimental impact on truth-finding process].)

In short, this court holds that it is not appropriate to utilize the exclusionary rule for pre-Carpenter CSLI orders obtained in compliance with the Stored Communications Act, because no meaningful deterrence can be achieved by exclusion in that circumstance.

Bigelow Distinguished

Defendant is, of course, aware of the emerging trend to deny exclusion where CSLI data was obtained in good faith reliance on the law prior to Carpenter.

Defendant attempts to respond by asserting that in People v Bigelow (66 NY2d 417, 427 [1985] [emphasis added]), the New York Court of Appeals rejected as a matter of New York state constitutional law "the good-faith exception" to the exclusionary rule purportedly created by United States v Leon (468 US 897 [1984]). In defendant's view, Bigelow means that exclusion of pre-Carpenter CSLI data is automatic and mandatory as a matter of New York law.

This argument has some appeal, but it ultimately depends upon both a misunderstanding of Leon's place in Fourth Amendment jurisprudence, and an oversimplification of both Bigelow and Leon.

To begin with, Leon was not a wholly new innovation in Fourth Amendment law. Rather, long before Leon was decided both the U.S. Supreme Court and the New York Court of Appeals had held that the application of the exclusionary rule is not automatic or mandatory in every circumstance; the court must instead balance the deterrent benefit of exclusion against the societal cost of losing probative evidence before utilizing{**63 Misc 3d at 836} exclusion as a remedy. (See e.g. United States v Calandra, 414 US 338 [1974]; People v Young, 55 NY2d 419 [1982].)

More importantly, there is no single good faith exception as defendant suggests. Rather, Leon is the first in a line of related Supreme Court cases where under several different narrowly defined circumstances—all of which do, concededly, share as a common element some form of good faith reliance—the Court has applied a cost/benefit analysis and found that the exclusionary remedy is not appropriate. (See Davis v United States, 564 US 229 [2011] [exclusion not proper where officers execute warrant in accord with binding appellate authority that is later overruled]; Herring v United States, 555 US 135 [2009] [exclusion not proper where officer relies in good faith on clerical error by law enforcement personnel]; Arizona v Evans, 514 US 1 [1995] [exclusion not appropriate where police officer relies in good faith on clerical error by court personnel]; United States v Leon, 468 US 897 [1984] [exclusion not proper where police officer relies in good faith on search warrant issued by Magistrate later found to be based on less than probable cause].)

Thus it is true that Bigelow rejects Leon as a matter of New York state constitutional law. But Bigelow does not reject "the good-faith exception" wholesale—as defendant now suggests—because there is no single good faith exception.

Rather, when read properly, Bigelow does not reject any of the Supreme Court's good faith decisions other than Leon itself. And, most importantly for present purposes, Bigelow does not reject—or even speak to—the subsequent Supreme Court decision in Krull holding that exclusion is not proper where law enforcement relies in good faith on a statute later found to be unconstitutional.

Similarly, Bigelow does not silently overrule prior New York law holding that it is always incumbent upon the courts in each individual circumstance to balance the cost of the exclusionary remedy against its probable deterrent effect. Rather, New York law remains as was stated in People v Young (55 NY2d 419, 425 [1982]):

"It is clear that the exclusionary rule has never been considered a fundamental right of constitutional dimensions requiring automatic application whenever the Fourth Amendment has been violated. Rather, it has always been incumbent upon the courts to balance the societal cost of losing reliable{**63 Misc 3d at 837} and competent evidence against the probable effectuation and enhancement of Fourth Amendment principles, for as our court unanimously found, the application of the exclusionary rule is dependent 'upon a balancing of its probable deterrent effect against its detrimental impact upon the truth-finding process' " (quoting People v McGrath, 46 NY2d 12, 21 [1978]; accord People v Jones, 2 NY3d 235, 241 [2004]).

Viewed in this light, Bigelow does not preclude New York courts from adopting the powerful logic of Krull and finding (as this court now finds) that exclusion is not appropriate where evidence is obtained pursuant to a statute—in this case section 2703 (d) of the Stored Communications Act—that is later found to be unconstitutional.

Taking a broader view, Carpenter represents a major step forward in the law of search and seizure. The traditional "third-party doctrine"—holding that a person has no expectation of privacy in information voluntarily disclosed to a third party—makes little sense when applied to long-term telephone company CSLI data. CSLI technology has now developed to the point where a cellular telephone company's ordinary business records can in essence lay bare a customer's entire private life.

In Carpenter the Court thus heeded the advice given long ago by Justice Brandeis in Olmstead v United States (277 US 438, 473-474 [1928, Brandeis, J., dissenting] [Fourth Amendment must be interpreted in such a manner that the "progress of science" will not erode its protections]), and by Justice Sotomayor in United States v Jones (565 US 400, 417 [2012, Sotomayor, J., concurring] ["(I)t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks" (citations omitted)]).

Responding to these insights, the Supreme Court made a conscious effort in Carpenter to belatedly bring the Court's Fourth Amendment jurisprudence into the twenty-first century with all its technological advances, and thereby make real and effective the Amendment's prohibition [*8]against unreasonable searches.

This newfound wisdom is valuable. Nevertheless, this court (like a number of others) does not believe that it is proper to{**63 Misc 3d at 838} artificially project Carpenter back in time by excluding CSLI data that was lawfully obtained pursuant to statute prior to Carpenter. Excluding pre-Carpenter CSLI data would mean that valuable evidence will be lost, without achieving any deterrent effect.

Defendant Edwards' case here is a good illustration. If the jury in this case is to do its job properly, the jury should know whether defendant's cellular telephone records show that defendant was present when the victim was robbed at gunpoint. Excluding this evidence will not deter police misconduct (nor advance any other useful purpose) because there was no "misconduct" here. To the contrary, all concerned—the police, prosecutor, and judge—acted in full compliance with the statute and case law at the time.

For all these reasons, defendant's motion to suppress the CSLI data at issue is hereby denied.

The motion to suppress the cellular telephone records obtained pursuant to the NYPD administrative subpoena, and the motion to suppress the CSLI data obtained pursuant to Justice Michels' order, are each hereby denied.