39 Misc. 3d 603
N.Y. Cty. Ct.2013Background
- Defendant charged with second-degree murder for the June 26, 2011 death of Calvin Reid.
- Investigators obtained a ping from Sprint to locate defendant’s cell phone on July 1, 2011; ping located phone inside a backpack at 15 Zimbrich Street, Rochester.
- Suppression motion seeks to exclude evidence from the ping and backpack; suppression hearing held August 7, 2012.
- Investigators had identified a suspect known as “Dutch” and used surveillance, cell phone data, and a home search to recover the backpack.
- Court finds defendant had standing to challenge the backpack search, but later determines abandonment of the backpack terminated any Fourth Amendment interest.
- Court analyzes pinging under Fourth Amendment, NY Constitution, and statutory authority, ultimately finding no violation under either constitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge the search | Defendant had a privacy interest in backpack and contents. | Defendant maintained privacy in the phone and location data. | Defendant had standing to challenge the backpack search. |
| Abandonment and Fourth Amendment seizure | Defendant retained privacy interest; no abandonment. | No abandonment; privacy persists in backpack. | Abandonment occurred; no Fourth Amendment search occurred for backpack. |
| Fourth Amendment scope of pinging a cell phone | Pinging constitutes a search requiring warrant. | Ping is a search implicating privacy interests. | Ping did not implicate the Fourth Amendment; no search. |
| New York Constitution and pinging | State constitution protects privacy in location data. | State constitution provides greater protection. | Ping did not violate New York Constitution; no heightened protection. |
| Statutory authority for pinging | Exigent circumstances under Stored Communications Act justified ping. | No statutory authority without warrant or court order. | No statutory authority; however, Fourth Amendment analysis applies and finds no violation. |
Key Cases Cited
- United States v. Knotts, 460 U.S. 276 (U.S. 1983) (beeper tracking not a search when movements open to public view)
- United States v. Karo, 468 U.S. 705 (U.S. 1984) (installation of beeper not a search if owner consents and no privacy expectation)
- United States v. Jones, 565 U.S. 400 (U.S. 2012) (GPS attachment to vehicle requires warrant; physical trespass standard; limited by Katz)
- People v Weaver, 12 N.Y.3d 433 (N.Y. 2009) (GPS tracking without a warrant when no exigency violates NY Constitution)
- Smith v. Maryland, 442 U.S. 735 (U.S. 1979) (no reasonable expectation of privacy in numbers dialed to telephone company)
- People v. Adams, 53 N.Y.2d 1 (N.Y. 1981) (apparent/applicable authority to search with consent)
- People v. Ramirez-Portoreal, 88 N.Y.2d 99 (N.Y. 1996) (two-part standing test: subjective expectation and societal reasonableness)
- People v. Dunn, 77 N.Y.2d 19 (N.Y. 1990) (state constitution privacy analysis doctrine)
- People v. Burkett, 98 A.D.3d 746 (N.Y. App. Div. 2d Dept. 2012) (abandonment analysis and privacy expectations in property)
- Weaver, 12 N.Y.3d 433 (N.Y. 2009) (GPS surveillance and state constitution considerations)