NY Supreme Court Appellate Division finds standing, but also finds exigent circumstances applied to warrantless search of CSLI and text messages.

This case is an appeal on a second degree murder conviction under NY State law. One of the issues raised in the appeal is that defense counsel was ineffective for failing to move to suppress historical cell site location information (CSLI) and text messages sent to and received by a cell phone being used by the defendant.

Without explicitly using the word “standing”, the Supreme Court, appellate division stated that it’s irrelevant that the phone was not registered to defendant. “One need not be the owner of the property for his [or her] privacy interest to be one that the Fourth Amendment protects, so long as he [or she] has the right to exclude others from dealing with the property,” citing United States v Perea, 986 F2d 633, 639-640 [2d Cir 1993 and United States v Ashburn, 76 F Supp 3d 401, 412 [ED NY 2014]). Despite the fact that the phone was registered to one of the defendant’s relatives, since it is undisputed that the phone was used exclusively by the defendant, the Court ruled that the Defendant had standing to raise the claim and moved on to the merits.

The Supreme Court rejected the ineffective assistance argument, deciding that there was little or no chance that the motion to suppress the historical CSLI or text messages would have been successful. The Court then cited relevant passages of Carpenter and cited Riley (and other cases) ruling that the exigent circumstances doctrine would have applied.

There is not a lot of explanation as to why the doctrine would have applied, other than to say that there was a missing 17 year old girl for whom the police were searching. This brief description appeared to be sufficient for the appellate court.

The case is People v Lively, 2018 N.Y. App. Div. LEXIS 5407, 2018 NY Slip Op 05413, (Sup. Ct. NY App. Div.), (July 25).

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