N.Y. Supreme Court decides pen register order supported by probable cause permitted CSLI acquisition.

Long after the defendant was convicted of murder and robbery in New York, the defendant made an application in the trial court to vacate his conviction based on Carpenter, hoping for a court finding that the police exceeded the scope of a search warrant or that counsel was ineffective for failing to pursue a Carpenter claim years ago.

The Court denied the claim, holding that, whether or not Carpenter is to be given retroactive effect, the Defendant’s claim fails. The Court decided that if Carpenter is to be treated as announcing a new rule under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), then the Carpenter claim cannot be considered because it is retroactive.

Alternatively, the Court decided that assuming Carpenter does apply retroactively, the pen register order used in this case to gain cell-site location information was supported by probable cause. The Court does not address whether an order should be treated the same as a search warrant or whether law enforcement followed the procedures necessary to get a warrant vs. a pen register order.

The case is People v Cutts, 2018 N.Y. Misc. LEXIS 5124,
2018 NY Slip Op 28353 (N.Y. Sup. Ct.), November 7, 2018.

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