New York Sup. Ct. denies Carpenter motion on grounds of no reasonable expectation of privacy in Defendant’s work (police dept.) phone.

In this ongoing prosecution of a New York police officer for an indictment related to official misconduct charges, the Defendant made a motion to suppress cell site location information & other phone data relating to the cell phone he carried as a member of the NYPD.

The defendant alleged that a warrant was required, citing Carpenter. This was a phone issued by the NYPD that he contends he was to carry 24/7 in case of an emergency. He also alleged that the NYPD does not have a policy advising its employees who have NYPD issued cell phones that the data is not kept private. Finally, he argued that he has a reasonable expectation of privacy in the data because it tracks his whereabouts both on and off duty.

The Court noted that NYPD is the entity that owns and pays for the phone, has the ability to consent to a search of the phone as well as to a search of the GPS data contained therein, and that officers are advised that they do not maintain any right to privacy in any feature of these devices, including any communication and other application. Therefore, the defendant did not have a reasonable expectation of privacy in the GPS information that the NYPD collected and stored on a regular basis on all departmental cell phones.

The case is People v Yaguchi, 62 Misc. 3d 1054, 91 N.Y.S.3d 862, 2019 N.Y. Misc. LEXIS 171, 2019 NY Slip Op 29015, 2019 WL 255490 (Supreme Court of New York, Bronx County), January 15, 2019, Decided

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