SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK, PART 62---------------------------------------------------------------------)(

PEOPLE OF THE STATE OF NEW YORK,

- against -

ALI MOALA WI and RICKY MOORE,

Indictment No. 5652/2014Hon. Melissa C. Jackson, 1.People's Response to theSuppression Motion Due:July 1,2015

Decision Scheduled for:July 22, 2015Defendants.

---------------------------------------------------------------------)(

BRIEF OF AMICI CURIAE THE NEW YORK CIVIL LIBERTIES UNION, THEAMERICAN CIVIL LIBERTIES UNION, THE BRENNAN CENTER FOR JUSTICE,AND THE ELECTRONIC FRONTIER FOUNDATION IN SUPPORT OF DEFENDANTALI MOALAWI'S MOTION TO SUPPRESS CELL PHONE LOCATION HISTORY

Michael PriceRachel Levinson- Waldman, pro hac viceBrennan Center for Justice

at NYU School of Law161 Avenue of the Americas, 12th FloorNew York, NY 10013Tel: (646) 292-8335Fax: (212) 463-7308Email: michael.price@nyu.edu

rachel.levinson. waldman@nyu.edu

Dated: New York, NYJune 12,2015

RECEIVEDCENTRAL CLERI¡(lS OFFICE

JUN 1 2 2015

SUPREME COURTCRiMINAL TERM

NEVVYORK COUNTY

Marika HiroseChristopher DUlmNew York Civil Liberties Union Foundation125 Broad St., Floor 19New York, NY 10004Tel: (212) 607-3300Fax: (212)607-3318Email: mhirose@nyc1u.org

Nathan Freed WesslerAmerican Civil Liberties Union Foundation125 Broad Street, 18th FloorNew York, NY 10004Tel: (212) 549-2500Fax: (212) 549-2654Email: nwessler@aclu.org

Counsel for Amici New York Civil LibertiesUnion, American Civil Liberties Union,Brennan Center for Justice, and the ElectronicFrontier Foundation

TABLE OF CONTENTS

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

FACTUAL BACKGROUND 2

B. Cell Phone Location Surveillance Is More Intrusive Than GPSSurveillance 18

ARGUMENT 8

r. CELL PHONE LOCATION HISTORY IMPLICATES NEW YORKERS'REASONABLE EXPECTATIONS OF PRIVACY IN LOCATIONHISTORY 8

A. Cell Phone Location Surveillance, Like GPS Surveillance, Reveals aHighly Intimate Profile of a Person's Location History 1O

II. THE THIRD- PARTY DOCTRINE DOES NOT APPLY TO UNDERMINETHE REASONABLE EXPECTATION OF PRIVACY IN CELL PHONELOCATION HISTORY 21

III. CELL PHONE LOCATION HISTORY SHOULD BE SUPRESSEDBECAUSE OF THE FAILURE TO OBTAIN A WARRANT 25

CONCLUSION 26

APPENDIX A: INTEREST OF AMICI CURIAE App. A l

APPENDIX B: AFFIDAVIT OF REBECCA ANNE CADOFF App. B 1

TABLE OF AUTHORITIES

CASES

Commonwealtli v. Augustine, 467 Mass. 230 (20 14) passim

Cunningham v. N. Y. State Dep 't of Labor, 21 N.Y.3d 515 (2013) 19

In re Application of the USfor Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) .... 21

Ferguson v. City of Charleston, 532 U.S. 67 (2001) 23

In re Application of the US for an Order Directing a Provider of Elec. Comme 'nServ. to Disclose Records to the Gov t, 620 F .3d 304 (3d Cir. 20 l O) 18, 24

In re USfor an Order Authorizing Disclosure of Location Info. ofa Specified WirelessTelephone, 849 F. Supp. 2d 526 (D. Md. 2011) 5, 8

In re USfor an Order Authorizing the Release ofHistorical Cell-Site Info.,809 F. Supp. 2d 113 (E.D.N.Y. 2011) .passim

Minnesota v. Olson, 495 U.S. 91 (1990) 18

Katz P. United States, 389 U.S. 347 (1967) passim

People v. Dikaffaele, 55 N.Y.2d 234 (1982) 21

People v. Hall, 86 A.D.3d 450 (1st Dep't 2011) 9, 10

People )'.Moorer, 39 Misc. 3d 603 (Sup Court, Monroe County 2013) 10

People v. Weaver, 12 N.Y.3d 433 (2009) .passim

Riley v. California, 134 S. Ct. 2473 (2014) .passim

People v. Wells, 45 Misc. 3d 793 (Sup Court, Queens County 2014) 10

R.S ex reI. SS P. Minnewaska Area Sch. Dist. No. 2149,894 F. Supp. 2d 1128(D. Minn. 20 12) 23

See v. City ofSeattle, 387 U.S. 541 (1967) 18

Smith v. Maryland, 442 U.S. 735 (1979) .passim

State v. Earls, 214 N.J. 564 (2013) .passim

11

Stoner v. California, 376 U.S. 483 (1964) 18

Tracey v. State, 152 So. 3d 504 (Fla. 20 14) .passim

United States v. Davis, No. 12-12928,2015 WL 2058977 (11 th Cir. May 5, 2015) .passim

United States v, Cooper, No. 13-cr-00693-SI-l, 2015 WL 881578 (N.D. Cal. 2015) .passim

United States v. Jacobsen, 466 U.S. 109 (1984) 23

United States v. Jones, 132 S. Ct. 945 (2012) .passim

United States v. Karo, 468 U.S. 705 (1984) 18, 19

United States v. Knotts, 460 U.S. 276 (1983) 22

United States v. Miller, 425 U.S. 435 (1976) .passirn

United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) 17

United States v. Warshak; 631 F.3d 266 (6th Cir. 201 O) 23

RULES, STATUES AND REGULATIONS

18 U.S.C. § 2703(d) 25

47 C.F.R. § 20.18(h)(1)(i)(C)(2015) 5

N.Y. Const. Article r, § 12 8, 25

MISCELLANEOUS

A. Smith, Pew Research Center, Smartplzane Ownership=Zûl s Update (June 5,2013) ..... 3

Arvind Thiagarajan et al. Accurate, Low-Energy Trajectory MappingforMobile Devices (2011), avilable at http://db.csail.mit.edu/pubs/ctrack-cr.pdf. 18

eTLA _ The Wireless Ass'n, Wireless Industry Survey, (2014), available athttp://www.ctia.org/docs/default-source/Facts-Stats/ctia _ survey _ye _2013 _graphics-final.pdf?sfvrsn=2 6

ECPA Reform and the Revolution in Location Based Technologies and Services:Hearing Before the Subcomm. on the Constitution, Civil Rights, andCivil Liberties of the H. Comm. on the Judiciary, III th Cong. 12-30 (20 l O) .4, 5

Hanis Interactive, 2013 Mobile Consumer Habits Study, June 2013 19

III

Mary Madden, Pew Research Ctr., Privacy and Security in the Post-SnewdenEra 7 (2014), available at http://www.pewintemet.org/files/20141l1/PI_PublicPerceptionsofPtivacy _111214.pdf. 24

In re Wireless E9ll Location Accuracy Requirements, PS Docket No. 07-114,Fourth Report and Order (F.C.C. Jan. 29, 2015), available athttps://apps.fcc.gov/edocs _public/attaclunatch/FCC-15-9A 1.pdf.. 6

Pew Research Ctr., Mobile Technology Fact Sheet (Oct. 2014), available athttp://www.pewintemet.org/fact -sheets/mobile- techno logy- fact -sheetl 2

Stephen J. Blumberg & Julian V. Luke, Nat'l Ctr. for Health Statistics, WirelessSubstitution: Early Release of Estimates from the National Health InterviewSurvey, January-June 2014, Dec. 2014, available athttp://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless20 1412.pdf 3

The Electronic Communications Privacy Act (E CPA) , Part 2: Geolocation Privacyand Surveillance: Hearing Before the Subcomm. on Crime, Terrorism,Homeland Sec. & Investigations of the H. Comm. on the Judiciary,113th Cong. 6 (2013), available athttp://jueliciary.house.gov/_files/heatings/ I 13th/042520 13/Blaze%20042520 13.pelf. .passim

Thomas A. O'Malley, Using Historical Cell Site Analysis Evidence in Criminal Trials,U.S. Att'ys' Bull., Nov. 20 II, available athttp://www.justice.gov/usao/eousa/foia_reaeling_room/usab5906.pelf. passim

U. Mich., Hitchin' a Ride: Fewer Americans Have Their Own Vehicle,Mich. News, Jan. 23, 2014, available at http://ns.umich.eelu/new/releases/21923-hitchin-a-ride-fewer-ameticans-have-their-own-vehicle 19

Verizon Wireless, Law Enforcement Resource Team (2009), available athttps:/linfo. pub licintelligence.netiVerizonLawEnforcementResourceTeam. pelf. ..... 5

tV

PRELIMINARY STATEMENT

This case raises an important question for all New Yorkers who own a cell phone:

whether the government may, without a warrant, learn of people's comings and goings over time

location history-revealing 10,438 data points about Mr. Moalawi's location for the six-and-a-

by compelling cell phone service providers to tum over their customers' location history. In this

case, the prosecution warrantlessly obtained over half a year of Mr. Ali Moalawi's cell phone

half month period, or an average of one location point approximately every half hour. The

records that the prosecution obtained paint a highly private profile of Mr. Moalawi, including the

nights that he spent at his home in Huntington Station, the nights that he spent at his fiancée's

home in Sea Gate, the days that he most likely did not work, and the patterns of his late-evening

outings in Prospect Heights.

Amici, organizations dedicated to defending the right to privacy in the digital age, I argue

that this cell phone location history must be suppressed because the New York State Constitution

requires law enforcement to obtain a warrant prior to acquiring such intimately revealing records.

In People r. Weaver, the New York Court of Appeals held that New Yorkers have a reasonable

expectation of pri vacy in their location history captured by two months of G PS surveillance of a

car, which readily reveals private trips and activities as well as political, religious, amicable, and

amorous associations. 12 N.Y.3d 433 (2009). The record in this case demonstrates that

cumulati ve cell phone location history reveals precisely the type of intimate inferences about Mr.

Moalawi's life that Wea\'er protects-and that indeed it is more intrusive than GPS surveillance

because it reveals information about a person's travels and presence in places a car might not go.

I The statements of interest of Amici Curiae the New York Civil Liberties Union, the American Civil LibertiesUnion, the Brennan Center for Justice. and the Electronic Frontier Foundation are attached as Appendix A.

This Court should therefore hold that Weaver protects the right to privacy in cell phone

location history, and that the right is not undermined by the so-called "third-party doctrine." The

third-party doctrine, which developed in the 1970s, withholds privacy protections from certain

simple business records kept by third-party businesses. But the doctrine is inapposite to cell

phone location history, which reveals a breathtaking quality and quantity of personal information

incomparable to what could be gleaned from the simple business records of the past, with the

primitive technology of the past. Cell phone location history should instead be compared to

other highly sensitive and private records that have received constitutional protection regardless

of whether they are in the hands of third parties.

Weaver instructed that the right to privacy in the State Constitution must be interpreted to

protect the public from law enforcement's unbridled use of emerging surveillance technologies.

This Court should suppress the cell phone location history in this case and hold that under the

State Constitution, the government must obtain a warrant before conducting location surveillance

on New Yorkers through the acquisition of cell phone location history.

FACTUAL BACKGROUNDCell phones are now a "pervasive and insistent" part of American daily life-so much so

that the United States Supreme Court has postulated that "the proverbial visitor from Mars might

conclude they were an important feature of human anatomy." Riley v. California, 134 S. Ct.

2473,2484 (2014) (holding that given the prominent role cell phones play in people's lives and

the amount of private information they contain, law enforcement must presumptively obtain a

wan-ant to search their contents). As oflast year, 90% of American adults owned a cell phone.

See Mobile Technology Fact Sheet, Pew Research Ctr. (Oct. 2014)? By mid-20l4,

approximately 44% of American households relied only on their cell phones for phone service,

2 A l'ai/able at http://www.pewinternet.org/fact -sheets/rnobile-technology- fact-sheet/.

2

(Dec. 2014),3 and "a significant majority of American adults" were using "smart phones" not

see Stephen J. Blumberg & Julian V. Luke, Nat'l Ctr. for Health Statistics, Wireless Substitution:

Early Release of Estimates from the National Health Interview Survey, January-June 2014, at 2

only for phone calls but to transmit data-including sending emails and browsing the Internet.

Riley, 134 S. Ct. at 2484, 2489 (citing A. Smith, Pew Research Center, Smartphone Ownership-s-

The service provided by these cell phones, carried by almost all Americans almost

2013 Update (June 5, 2013)).

everywhere they go, generates a digital trail oflocation information. This is because every few

seconds whenever cell phones are on, as well as in response to incoming and outgoing calls and

data, cell phones automatically connect with their carriers' network using radio signals sent to

nearby base stations, or "cell sites." See In re u.s. for an Order Authorizing the Release of

Historical Cell-Site Info., 809 F. Supp. 2d 113, 115 (E.D.N.Y. 2011) (hereinafter "In re

v. Augustine, 467 Mass. 230, 237 (2014); State v. Earls, 214 N.J. 564, 576 (2013); see also The

Historical Cell-Site Info., E.D.N. Y.") (describing cell-site location technology); Commonwealtli

Electronic Communications Privacy Act (ECPA), Part 2: Geolocation Privacy and Surveillance:

Hearing Before the Subcomm. on Crime, Terrorism, Homeland Sec. & Investigations ofthe ff.

Comm .. on the Judiciary, l13th Cong. 6 (2013) (statement of Matt Blaze, Associate Professor,

University of Pennsylvania) (hereinafter, "Blaze Testimony 2013").4 Cell phone companies

have varying practices on retaining records of these connections. Companies have historically

retain records of connections whenever phones send or recei ve text messages, e-mail, or other

retained the records of connections at the beginning and end of each call, but it is also possible to

3 Ami/able at http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless2O 1412.pdf.4 A l'ai/able at http://judiciary.house.gov/_ files/hearingsll13thJ042520 13/Blaze%20042520 13.pdf. The prosecution,the defense, and courts have all relied on Professor Blaze's testimony in setting forth details of cell phonetechnology. See, e.g., Augustine, 467 Mass. at 237 n.17; Earls, 214 N.J. at 576.

3

fanns of data, and even every periodic connection with the cell site regardless of whether the

phone is being used. See, e.g., Augustine, 467 Mass. at 239-40 (describing acquisition of cell site

connection records for phone calls); Earls, 214 N.J. at 577 (explaining that a log of cell site

connections is ordinarily created each time a call is made or data downloaded); see also Blaze

Testimony 2013 at 13-14 ("Creating and maintaining detailed records about the locations of cell

phones as they move from place to place makes good engineering sense, and we should expect

the trend toward more, and more precise, location data collection to continue .... ").

A cell phone's connection with a cell site reveals information about the location of the

cell phone in at least four ways. First, "[ijf a user's cell phone has communicated with a

particular cell-site, this strongly suggests that the user has physically been within the particular

cell-site's geographical range." In re Historical Cell-Site Info., E.D.N.Y., 809 F. Supp. 2d at 115;

see also Thomas A. O'Malley, Using Historical Cell Site Analysis Evidence in Criminal Trials,

U.S. Att'ys' Bull., Nov. 2011, at 16, 19.5 Second, the cell phone connects to the cell site with the

strongest radio signal, which is typically the cell site closest to the cell phone or one that is in

direct line of sight of a cell phone if the cell phone is within the geographic range of several cell

sites. See Earls, 214 N.J. at 576 (citing ECPA Reform and the Revolution in Location Based

Technologies and Services: Hearing Before the Subcomm. on the Constitution, Civil Rights, and

Civil Liberties of the H. Comm. 0/1 the Judiciary, III th Cong. 12-30 (20 l O) (statement of Prof.

Matt Blaze) (hereinafter, "Blaze Testimony 20 l O")); United States v. Davis, No. 12-12928,2015

WL 2058977, at *4 (11th Ciro May 5, 2015) (citing testimony at trial from prosecution's witness

that "when a cellular phone user makes a call, the user's cell phone sends a signal to a nearby

cell tower, which is typically but not always the closest tower to the phone"). Third, the

geographic range of the cell site is often divided into three or more directional "sectors," and

5 A, 'ailable at http://www.j ustice.gov/usao/eousa/foia _reading_room/usab5906.pdf.

4

information about the sector of the cell site wi th which the phone is connecting further narrows

the probable location of the cell phone by indicating the direction from which the cell phone is

connecting to the cell site. See Augustine, 467 Mass. at 237-39 (citing Blaze Testimony 2013);

Davis, 2015 WL 2058977, at *4 (citing testimony that "[ejach cell phone tower has a circular

coverage of radius, and the 'coverage pie' for each tower is further divided into either three or

six patis, called sectors"); O'Malley, U.S. Att'ys' Bull. at 19. Fourth, some cell phone carriers

can estimate the location of the cell phone with further accuracy by calculating and logging the

phone's distance from the cell site. See Augustine, 467 Mass. at 238 n.19 (noting that cell phone

location records may currently include the cell phone user's latitude and longitude); Verizon

Wireless, Law Enforcement Resource Team 21,25 (2009).6

The precision of this cell site location information varies, but is improving rapidly so that

the technology available for this f01111oflocation tracking can sometimes "place a particular [cell

phone] within a [geographic] range approaching the accuracy ofGPS." In re US for an Order

Authorizing Disclosure of Location Info. of a Specified Wireless Telephone, 849 F. Supp. 2d 526,

534 (D. Md. 20 II) (hereinafter, "In re Location Info., D. Md.") (citing Blaze Testimony 20 IO).

One factor driving increased accuracy has been government regulations designed to improve 911

emergency response services. Current law requires cell phone providers to improve location

tracking accuracy so that by 2016 the providers will be able to locate phones in real time to

within 100 meters for 67% of all calls. See 47 C.F.R. § 20.18(h)(I)(i)(C)(201S). New rules from

the Federal Communications Commission require even greater precision, including the ability to

determine which floor of a building the phone is located on. In re Wireless £9/1 Location

6 A vailable at htrpsr/info.publicintelligence. netIY erizonl.awlinforcementkesource Team. pdf.

5

Accuracy Requirements, PS Docket No. 07-114, Fourth Report and Order at l-S (F.C.C. Jan. 29,

2015).7

Another factor driving accuracy is the increasing demand for cell phone ownership and

data service. See Augustine, 467 Mass. at 239; Earls, 214 N.J. at 577-78. Cell phone caniers

have responded to this demand by operating more cell sites, see Augustine, 467 Mass. at 239;

Earls, 214 N.J. at 577-78, so that between 2003 and 2013, the number of cell sites in the United

States more than doubled from 139,338 to 304,360, see CTlA - The Wireless Ass'n, Wireless

Industry Survey 11 (2014).8 Carriers have also deployed "microcells" and other such smaller

cellular base stations that may cover only individual rooms or floors within buildings. See Earls,

the cell sites, resulting in a smaller geographic coverage area for each cell site and an increase in

214 N.J. at 577-78; Blaze Testimony 2013 at 9-12. These actions have increased the density of

the accuracy of the cell site location information. See Augustine, 467 Mass. at 239; Earls, 214

N.J. at 577-78. In urban areas like New York City, cell sites are densely packed and therefore

more likely to produce accurate location data-accuracy that will only continue to improve. See

Davis, 2015 WL 2058977, at *4 (citing testimony at trial that "the density of cell towers in an

urban area like Miami would make the coverage of any given tower smaller," though there was

environments that use 'microcells' ... a sector's coverage area can be 'quite small indeed. '"

no testimony on the actual coverage area); Earls, 214 N.J. at 578 ("ln dense urban areas and

(quoting Blaze Testimony 2013)).

7 Ami/able at https://apps.fcc.gov/edocs _public/attachmatch/FCC-15-9A l.pdf.8 A vailable at http://www.ctia.org/docs/deFault-source/Facts-Stats/ctia _survey _ye _2013 _graphics-final. pdf?sfvrsn=2.

6

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'\-~- T ••MAP 1: Cell sites operated by Sprint, Mr. Moalawi's carrier, in the New York City area, 2014.9

"The implication of these facts"-the ubiquity of cell phones and the increasing accuracy

of the location information generated by their connections with their networks -"is that cellular

service providers have records of the geographic location of almost every American at almost

every time of day and night." In re Historical Cell-Site Info., E.D.N.Y., 809 F. Supp. 2d at 115.

The government may take advantage of this either by compelling provider cooperation to track a

cell phone's cell site connections in real time or, as it did here, by obt7aining access to the

database of historical cell site location information. See Augustine, 467 Mass. at 240 n.24; Earls,

214 N.J. at 577. The question presented in this case is whether the government must obtain a

warrant before tapping into this historical database of people's cell phone location information.

9 For descriptions of how maps in this brief were created, and for larger versions of the maps, see the affidavit ofRebecca Anne Cadoff attached as Appendix B.

7

ARGUMENT

In holding in People v. Wem'er that GPS surveillance requires a warrant, the Court of

Appeals made clear that this State's Constitution protects the public from law enforcement's

unbridled use of "sophisticated technological means" that infringe on people's reasonable

expectations of location privacy. 12 N.Y.3d at 445. This Court should apply Weaver to law

including the highest courts of three states-that have adopted Wem'er's reasoning to find

enforcement's acquisition of cell phone location history, joining the courts around the country-

constitutional protection against warrantless cell phone location surveillance. See, e.g.,

Augustine, 467 Mass. at 231,248; Earls, 214 N.J. at 588; Tracey v. State, 152 So. 3d 504, 525-26

(Fla. 2014); United States v, Cooper, No. 13-cr-00693-SI-l, 2015 WL 881578, at *6-8 (N.D.

Cal. 2015); Inre Historical Cell-Site Info .. E.D.N.Y., 809 F. Supp. 2d at 115; In re Location

Info., D. Md., 849 F. Supp. 2d at 539-43.10

I. CELL PHONE LOCATION HISTORY IMPLICATES NEW YORKERS'REASONABLE EXPECTATIONS OF PRIVACY IN LOCATION HISTORY.

In Weaver, the Court of Appeals recognized that New Yorkers have reasonable

expectations of privacy in their location history under Article I, § 12 of the State Constitution.

See 12 N.Y.3d at 444-45. Wem'er involved law enforcement's use ofa GPS device to track a

person's location over a 65-day period. Id. at 436. Such location monitoring, the Court

recognized, reveals "[t]he whole of a person's progress through the world, into both public and

pri vate spatial spheres," including trips of "indisputably pri vate nature." Id. at 441. Moreover,

the "highly detailed profile" that could be built by aggregating records of such trips reveals not

IO Warrantless cell phone location surveillance also violates the Fourth Amendment, but Amici's submission focuseson the State Constitution because the State Constitution is at least as protective as, and often more protective than,the Federal Constitution. See Weal'er, 12 N.YJd at 445. While similar privacy concerns apply to various forms ofcell phone location surveillance, including real-time tracking of cell phones, this brief focuses on the acquisition ofcell phone location history that is at issue in the Defendant's Motion to Suppress.

8

and amorous, to name only a few-and ... the pattern of our professional and avocational

only "where we go, but by easy inference, ... our associations-political, religious, amicable

pursuits." Id. at 442. Presented with the reality of a "sophisticated and powerful technology that

is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking

capability," the court found it "obvious" that it would not be "compatible with any reasonable

constitutional privacy protection when an individual has a subjective expectation of privacy that

notion of personal pri vacy or ordered liberty" to allow the warrantless use of GPS surveillance.

Id. at 441 (applying the framework of Katz v. United States, 389 U.S. 347 (1967), which grants

society would accept as reasonable). I I

Wem'er correctly contemplated that the same type of intrusion into privacy would be

possible with cell phones as with GPS devices attached to cars. See Wem/er, 12 N.Y.3d at 444

("[W]ith GPS becoming an increasingly routine feature in cars and cell phones, it will be

below, location surveillance accomplished through cell phone location history is at least as

possible to tell from the technology with ever increasing precision who we are and are not with,

when we are and are not with them, and what we do and do not carry on our persons-to

mention just a few of the highly feasible empirical configurations."). Indeed, as explained

intrusive of privacy as GPS surveillance-in fact even more intrusive because it reveals the

whereabouts of a person rather than a car. The record here establishes that Weaver should apply

to prohibit warrantless access to cumulative cell site location history, distinguishing this case

from People v. Hall, 86 A.D. 3d 450,452 (1st Dep't 2011), where the defendant had not

II Three years later, the Supreme Court held that the attachment of a GPS device to a car for surveillance purposes isa trespass on property that constitutes a "search" under the Fourth Amendment. See United Slates l'. Jones, 132 S.Ct. 945, 949 (2012). Wemw's reasoning, which did 110tdepend on the trespass theory, was adopted by five justicesin concurrences in Jones. See, e.g., id. at 955 (Sotomayor, 1., concurring) (citing Weaver); id. at 964 (Alita, 1.,concurring in judgment) ("[S]ociety's expectation has been that law enforcement agents and others would not-andindeed, in the main, simply could not-secretly monitor and catalogue every single movement of an individual's carfor a very long period. ").

9

A. Cell Phone Location Surveillance, Like GPS Surveillance, Reveals a HighlyIntimate Profile of a Person's Location History.

preserved his argument for privacy under Weaver and the court upheld a denial of a motion to

suppress three days of cell phone location history.12

The prosecution in this case obtained over six-and-a-half months of cell phone location

records from Sprint, Mr. Moalawis cell phone canier, presumably for the precise purpose of

learning about Mr. Moalawi's movements. These Sprint records include the phone numbers and

the dates and times of phone calls and texts sent or received by Mr. Moalawi's phone between

March 1,2014, and September 17,2014, as well as 10,438 location data points (cell site and

sector information) associated with the phone calls. (Affidavit of Rebecca Anne Cadoff, J une

Il, 2015, Appendix B ,-¡ 8.) This averages to 51.9 location points per day, or one location point

approximately every half an hour. (fd) During these months, Mr. Moalawi's phone connected

most frequently to the cell site at 39 Semon Road in Huntington, New York, approximately half

a mile away from his home-and almost exclusively to the southeast-facing sector which faces

his home. (Id.) The cell phone connected second most frequently to the cell site at 2675 W 36th

Street in Seagate, Brooklyn, approximately half a mile away from his fiancée's home at the time,

and specifically the west and southwest-facing sectors which face his fiancée's home. (Id.) 13

12 Other cases in New York raising the constitutionality of cell phone location surveillance involved an even shorterperiod of surveillance than Hall~a one-time "pinging" of the cell phone to locate the user in real-time. See, e.g.,People F. Wells, 45 Misc. 3d 793, 796-97 (Sup Court, Queens County 2014); People I'. Moorer, 39 Misc. 3d 603,605-06 (Sup Court, Monroe County 2013). Although such "pinging" initiated at the request of law enforcementraises significant concerns, it does not reveal the same level of detail about a person's life as longer-tenn locationsurveillance.1.1 The records referenced in the Cadoff Affidavit and the locations of Mr. Moalawi's home and his fiancee's homewill be submitted for the record as part of the Defendant's Motion to Suppress.

10

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"amicable and amorous relationships." Weaver, 12 N.Y.3d at 441-42. Even a cursory review of

MAP 2: Cell sites with the most connections between March l, 2014, and September 17,2014.

These cell site records paint an intimate portrait of Mr. Moalawi, including his stays in

data from the week of March 1, 2014-a week having nothing to do with any crimes alleged-

reveals the following about Mr. Moalawi's life:

• Saturday, March 1: Afternoon outing to the Bronx, and evening in ProspectHeights.

On Saturday, March 1,Mr. Moalawi's cell phone connected several times with his home

cell site until 12:58 P.M. At 1:02 P.M., the cell phone began connecting with cell sites to the

west of his home, until at 2:42 P.M., when it began connecting to cell sites in the South Bronx.

The cell phone continued to connect with cell sites in the Bronx unti15:57 P.M., then connected

with cell sites on Manhattan's West Side Highway before connecting with the cell sites around

11

Prospect Heights in Brooklyn starting at 7:55 P.M. Between 11:46 P.M. to 11:52 P.M., Mr.

Moalawi's cell phone was connecting with a cell site in Prospect Lefferts Gardens.

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MAP J: Cell site connections on March I. 2014 .

o The markers appear only once on the map when the cell phone connected with the same cell site more than oncc.o The markers urc coded by color: yellow represents morning, orange represents afternoon. red represents late

afternoon to early evening, and gray represents late evening,• Blue lines and arrows represent inferred driving routes.o Seconds are indicated where multiple connections occurred within the same minute.

From these data, it appears that Mr. Moalawi was at or near his home until around 1 P.M.

on this day. At around 1 P.M., Mr. Moalawi left his home and drove to the Bronx, where he

stayed until about 6 P.M. He then drove down the West Side Highway to end up at Prospect

Heights, perhaps for dinner, and then in Prospects Lefferts Gardens until at least around

midnight.

• Sunday, March 2: A lazy Sunday near home.

On Sunday, March 2, Mr. Moalawi's cell phone consistently connected to his home cell

site between 11 :23 A.M. and 7: 10 P.M for all calls. (Cadoff Aff.<j[12.) It appears that Mr.

Moalawi had a lazy Sunday at or near his home on that day.

12

i, u

• Monday, March 3: Afternoon at Stony Brook University, sleeping over at fiancée's.

On March 3, Mr. Moalawi's cell phone connected with his home cell site through the

morning and until 1:22 P.M. At 2 P.M., the cell phone connected to a cell site near Stony Brook

University, to the east of his home, and continued to connect to cell sites in the area until5: 14

P.M. At 6:21 P.M., and for about 20 minutes after that, the cell phone connected to a cell site

between Smithtown and Centereach. The cell phone then connected to several sectors to the west

until he reached his home cell site at 8:02 P.M. After several connections with his home cell

site, at 9:52 P.M., the cell phone connected to a cell site just west of his home. At 10:23 P.M.,

the cell phone connected to a cell site near Forest Hills; at 10:31 P.M., a cell site on the Belt

Parkway near Howard Beach; at 10:35 P.M. a cell site further west on the Belt Parkway; and at

10:49 P.M., a cell site in Sea Gate, Brooklyn. The last recorded connection of that night was to

his fiancée's cell site, as was the first connection the next morning (Cadoff Aff. <j[ 13).

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MAI''¡: Cell site connections on March 3, 2014.

• fOL :'1"\' • The markers appear only once on the map when the cell phone connected with the same cell site more than once.• The markers arc coded by color: yellow represems morning, orange represents afternoon, red represents late

nfteruoon to early evening. and gray represents laic evening.• Blue line anti arrows represent inferred driving roules.• Seconds arc indicated where multiple connections occurred within the same minute.

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13

From this set of data, it appears that Mr. Moalawi was at or near his home until about

l :22 P.M. on this day, and then drove to Stony Brook University, arriving at around 2 P.M. He

stayed in Stony Brook for a few hours, most likely at the university, and then for some time in

the area between Smithtown and Centereach. He then went home for approximately two hours,

before leaving home before 10 P.M. to drive for approximately one hour, most likely taking the

Grand Central Parkway to the Belt Parkway to his fiancée's home, where he stayed the night.

• Tuesday, March 4 - Wednesday, March 5: Two days at his fiancée's.

On March 4 and 5, Mr. Moalawi's cell phone consistently connected throughout both

days with the cell site near his fiancée's apartment for all calls. (Cadoff Aff. ~ 13.) This implies

that Mr. Moalawi was most likely at or near his fiancées apartment during those two weekdays.

• Thursday, March 6: Home in the afternoon, late night out in Prospect Heights.

On March 6, Mr. Moalawi's cell phone connected with cell sites near his fiancées

apartment throughout the morning, and until 2:53 P.M. Then at 3:09 P.M., it connected with a

cell site near the Belt Parkway in East New York; between 4:05 P.M. and 4: 17 P.M., cell sites

near Westbury; and at 4:47 P.M., his home cell site. The phone connected consistently with his

home cell site until 10:52 P.M., then at Il :25 P.M., it began connecting to various ce1l sites to

the west. Between 12:42 A.M. and 1:07 A.M., the phone was connecting with ce1l sites in

Prospect Heights. The phone connected to his home ce1l site again at 3:33 A.M.

14

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II 11:<::! .:. P',I MAP 5: Cell site connections on March 6, and early morning of March 7, 2014,• li:!.~O":P\1

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• TIæ markers appt.:!ar only OI1<:C 011 the map when the cell phone connected with Ule same l'cl! site man! than once,• The markers am coded by color: yellow represents morning, orange represents afternoon, red represents late

afternoon to early evening. and gray represents late evening.• Blue line and arrows represent inferred driving roules.• Seconds are indicated where multiple connections occurred within the same minute

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From these data, it appears that ML Moalawi was at or near his fiancée's home until

about 3 P.M. on March 7. Then, having spent three nights at his fiancée's place, Mr. Moalawi

drove home for the early evening and dinner. It then appears that Mr. Moalawi left home

sometime after 10:52 P,M. for a late night outing in Prospect Heights, possibly taking the Belt

Parkway to pick up his fiancée as he passed Sea Gate. He was at home by around 3:30 A.M,

• Friday, March 7: Out to Stony Brook, then another night out in Prospect Heights.

ML Moalawi's cell phone connected to his home cell site at 3:36 A.M. and at 9:18 A.M,

on March 7, The cell phone then connected to a cell site to the south of his home at 1:58 P.M.,

and then to the cell site near Stony Brook University at 2:36 P.M. The cell phone connected to

cell sites at Stony Brook University untilS:S2 P.M, then to cell sites along route 347 and

Northern State Parkway beginning at 5:58 P,M., and then connected to cell sites near Syosset

15

from 6:45 to 9:35 P.M. At 9:43 P.M, the cell phone connected to cell sites to the west again

along the Long Island Expressway and finally connected to cell sites in the Prospect Heights area

at 10:52 P.M.

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went out to Stony Brook University, to the same area that he was in on Monday. Perhaps he

• 9.:j:j4GPtJ• a or as "J..: • Q5:í5.'}PM MAP (,: Cell site connections on March 7, 2014.

takes classes or attends meetings there. He likely ate dinner in Syosset, and then headed out

• U(l.l.~!f'¡"

• 1l3134?1 •.'• Q :B"OOPM • The markers appear only once on the I1Wp when the cell phone connected with the same cell sile more than once,

• The markers are coded by color: yellow represents morning. orange represents afternoon. red represents lateafternoon lo early evening. and gray represents late evening.

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These data indicate that Mr. Moalawi slept at home on the night of March 6. He then

again to Prospect Heights for after-dinner socializing.

Just one week's worth of data, reviewed in isolation and without sophisticated analytical

tools, and without even analyzing the directional sector with which the cell phone connected,

paints a rich picture of Mr. Moalawi that-much like GPS surveillance-reveals far more than a

single location point or an individual trip. See Weaver, 12 N.Y.3d at 440-42; United States v.

Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, 1., concurring) (citing Weaver and stating that

even cases of short-term location monitoring may raise concerns of revealing "a precise,

16

comprehensive record of a person's public movements that reflects a wealth of detail about [a

person's] familial, political, professional, religious, and sexual associations"); United States v.

Maynard, 615 F.3d 544, 561-62 (D.C. Cir. 2010) (holding that a warrant is required for GPS

surveillance because "[t]he whole of one's movements over the course of a month ... reveals far

more than the individual movements it comprises"), aff'd on different grounds sub nom. United

States 1'. lones, 132 S. Ct. 945 (2012). It appears from these data, for example, that Mr. Moalawi

does not have a consistent daily schedule: he does not have a 9 A.M.-5 P.M. job in an office

environment; he does not attend the same house of worship on a daily basis; and he does not

even sleep in the same place every night. He tends to be at or near home (or his fiancée's home)

before noon on most days and appears to like going out to Prospect Heights at night, during or

after dinner. Possibly he has a close friend who lives there.

[t is easy to imagine the array of other information that might be revealed about people

from reviewing this type of location data. For those who lead more consistent daily lives than

Mr. Moalawi, the map of their lives might reveal weekly attendance at a particular church or

daily attendance at a particular mosque. It might also reveal certain deviations from their daily

patterns, like affairs at a lover's home or doctor's visits in the middle of a work day. It might

reveal that the person crossed the Brooklyn Bridge at the same time as a Black Lives Matter

protest did, or that the person followed the parade route through Manhattan during the Pride Day

march.

The portrait that emerges from cell phone location history would be even more intrusive

with a review of more than the week of records reviewed here, the employment of a more

sophisticated analytical tool, and/or the merger of the data with other records such as automatic

license plate reader information and surveillance camera footage. See, e.g., O'Malley, U.S.

17

Att'ys' Bull. at 24 (describing the FBI's Cellular Analysis Survey Team, which receives an

intense four-week training, including on software mapping tools); Arvind Thiagarajan et al.

Accurate, Low-Energy Trajectory Mapping for Mobile Devices (20ll) (describing an algorithm

for accurate trajectory interpolation using cell site information)." Weaver should apply to

protect the right to privacy in this intimate location history, which is at least as intrusive as GPS

location surveillance. See Weaver, 12 N.Y.3d at 441-42.

B. Cell Phone Location Surveillance Is More Intrusive Than GPS Surveillance.

In many ways, cell phone location surveillance presents a greater threat to the right to

privacy than GPS surveillance of a car. Unlike GPS surveillance that is most often conducted

using devices attached to cars and that loses accuracy indoors, Blaze Testimony 2013 at 17, cell

phone location surveillance follows a person into any private indoor space and monitors his or

her presence inside-as illustrated by the above analysis of Mr. Moalawi's cell phone location

history from which one can infer the times that he was at home or at his fiancée's home. See

supra Patt l.A; see also In re Application of the us. for an Order Directing a Provider of E/ec.

Comme 'n Serv. to Disc/ose Records to the Gov 't, 620 F.3d 304, 311-12 (3d Cir. 2010)

(hereinafter, In re Records, Third Circuit) ("[T]he Govemment has asserted in [this and] in other

cases that a jury should rely on the accuracy of the cell tower records to infer that an individual,

or at least her cell phone, was at home."). It is well-established, however, that people have a

right to privacy in their presence inside a home and other constitutionally protected places

shielded from visual surveillance. See United States v. Karo, 468 U.S. 705, 714-15 (1984) (right

to privacy in the home); see also, e.g., Minnesota v. Olson, 495 U.S. 91,98 (1990) (same in a

home at which a person is an overnight guest); See v. City of Seattle, 387 U.S. 541,543 (1967)

(same in business premises); Stoner v. Califomia, 376 U.S. 483,486-88 (1964) (same inside

I~ Ami/able at http://db.csail.mit.edu/pubs/ctrack-cr.pdf.

18

hotel room). The Supreme Court held in Karo that law enforcement violated this well-

established principle by warrantlessly attaching a beeper to a container of chemicals and

monitoring its presence inside a home. 468 U.S. at 715. Using cell phone location history to

infer a person's presence in a home is indistinguishable from the surveillance in Karo, in which

the Court warned law enforcement against warrantlessly determining "by means of an electronic

In a similar vein, a cell phone is much more likely to be with a person at all times than a

device ... whether a particular article-s-or a person, for that matter-is in an individual's home

at a particular time." Id. Thus, cell phone location surveillance more directly implicates the

right to privacy under Karo than GPS surveillance of a car.

car, which might be shared by a family or, in a place like New York City, not used at al1.15 The

Court of Appeals has recognized that "[p ]eople have a greater expectation of privacy in the

location of their bodies, and the clothing and accessories that accompany their bodies, than in the

location of their cars." Cunningham v. NY. State Dept of Labor, 21 N.Y.3d 515, 521 (2013)

(stating, in a case rejecting warrantless GPS monitoring of a state worker during off-work hours,

most of the time, with 12% admitting that they even use their phones in the shower." Riley, 134

that attaching a GPS device to an employee's shoe or purse would implicate greater privacy

interests than GPS surveillance of a car). A cell phone is undoubtedly an accessory that most

people carry with them at a close range, at all times. According to one poll cited by the Supreme

Court, "nearly three-quarters of smart phone users report being within five feet of their phones

S. Ct. at 2485 (citing Harris Interactive, 20J3 Mobile Consumer Habits Study (June 2013)); see

also In re Historical Cell-Site 1/1/"0., E.D.NY., 809 F. Supp. 2d at liS ("For many Americans,

there is no time in the day when they are more than a few feet away from their cell phones.").

15 According to a study by the University of Michigan, more than half of the households in New York City did nothave a car in 2012. See U. Mich., Huehin ' a Ride. Fewer Americans Have Their Own Vehicle, Mich. News (Jan.23, 2014), http://ns. umich.edu/new/releasesI21923-hitchin-a-ride- fewer-americans-have-their-own-vehicle.

19

Finally, much more so than GPS surveillance, cell phone location surveillance raises

concerns of a cheap opportunity for prolonged, retrospective mass surveillance that was

impossible in the past. Cf Weaver, 12 N.Y.3d at 441 (noting that GPS is a "sophisticated and

powerful technology that is easily and cheaply deployed"); Jones, 132 S. Ct. at 963 (Alita, 1.,

concurring) (reasoning that society has a reasonable expectation of privacy against prolonged

surveillance because "[t]raditional surveillance for any extended period of time was difficult and

costly and therefore rarely undertaken"). GPS surveillance of a car, while offering a much

cheaper way of long-term monitoring of people than previously available investigative methods,

Weaver, 12 N.Y.3d at 441, still requires the police as a practical matter to identify the person

whose movement the police wants to track prospectively, attach the GPS device, and, depending

on the duration of the surveillance, periodically change its batteries. Cell phone location

surveillance, by contrast, provides a way for the government to spy on the locations of the 90%

of American adults who have a cell phone by simply obtaining the records from the cell phone

provider. Cell phone location history that allows law enforcement to reconstruct a person's past

movements, in particular, is "a category of information that never would be available through the

use of traditional law enforcement tools of investigation." Augustine, 467 Mass. at 254

(emphasis in original). But it only cost the government $50 to access this information here, and

learn retrospectively how Mr. Moalawi spent half of2014. (See Sprint Subpoena Compliance,

submitted with Defendant's Motion to Suppress.)

That cell phone location surveillance is more intrusive than GPS surveillance in these

ways only confirms that the light to privacy recognized in Weaver should apply to cell phone

location surveillance. The protection in Weaver would be meaningless if it did not also protect

New Yorkers from cell phone location surveillance.

20

II. THE THIRD-PARTY DOCTRINE DOES NOT APPLY TO UNDERMINE THEREASONABLE EXPECTATION OF PRIVACY IN CELL PHONE LOCATIONHISTORY.

The so-called "third-party" doctrine does not apply to undermine the reasonable

expectation of privacy in cell phone location history described above. This doctrine was

developed in the 1970s in Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Mil/er,

425 U.S. 435 (1976), which held that phone dialing records from a landline phone and paper

bank records, respectively, are not entitled to constitutional protection under the Katz analysis of

the reasonable expectations of pri vacy because they are records of third-party businesses. See

three states-have rejected the application of the third-party doctrine to cell phone location

Smith, 442 U.S. at 742-44; Miller, 425 U.S. at 442-43; People v. DiRaffaele, 55 N.Y.2d 234,

241-42 (1982) (adopting Smith under New York law). Couris-including the highest coulis of

surveillance, recognizing the significant intrusion on privacy possible with this new technology.

See Tracey, 152 So. 3d at 525-26; Augustine, 467 Mass. at 249-52; Earls, 214 N.J. at 584; see

also Cooper, 2015 WL 881578, at *6; In re Historical Cell-Site 1/1[0., E.D.N.Y., 809 F. Supp. 2d

The views of these courts rejecting the third-party doctrine for cell phone location

at 122, 126.

surveillance align more squarely with the broad protections of the right to privacy under the New

York State Constitution than the views of federal courts that have applied the third-party doctrine

without taking into account the technological progress of the past few decades. Cf Davis, 2015

WL 2058977 at * 11-12; In re Application of the us. for Historical Cell Site Data, 724 F.3d 600,

612-15 (5th Cir. 2013). In instructing in Weaver that the New York State Constitution must keep

up with advances in technology, the Court of Appeals distinguished GPS surveillance from past

legal doctrine pennitting warrantless visual surveillance of a single trip on a street assisted by a

21

rudimentary beeper, acknowledging that the world of primitive tracking devices is long gone.

Wem'er, 12 N.Y.3d at 441 (distinguishing United States v. Knotts, 460 U.S. 276 (1983)).

Similarly, in holding that the search-incident-to-arrest doctrine does not extend to contents of a

cell phone, the Supreme Court rejected a comparison of searches of contents of a pocket to

searches of contents of a cell phone, stating that ignoring the distinction between the two would

be "like saying a ride on horseback is materially indistinguishable from a flight to the moon."

Riley, 134 S. Ct. at 2488.

The vast difference between the records at issue in Miller and Smith, and the technology

available at the time, on the one hand, and the cell phone location history and technology of

today on the other, likewise belies the claim that the third-party doctrine of those cases should

apply. See Cooper, 2015 WL 881578, at *6 (citing Riley and holding that Smith does not answer

the question whether people have the reasonable expectation of privacy in their cell phone

location information). In rejecting the claim to privacy in Smith, the Court cited the "limited

capabilities" of the pen register, the device that records phone numbers dialed from a landline,

highlighting its inability to determine even whether a communication existed or a call was

completed. 442 U.S. at 741-42. In Smith, this primitive device was used only to obtain these

limited records from one criminal suspect for several days, see id. at 737, not to aggregate

detailed records over a lengthy period of time, as law enforcement is now able to do easily with

cell phone location history. And even though a pen register revealed that someone was at home

when it captured a phone number dialed through a home landline, see Davis, 2015 WL 2058977,

at * 11-12, that information was less likely to reveal the identity of the person present than

records of cell phones which typically belong to a single person. Back in the 1970s when Smith

was decided, mobile location data that could assemble a comprehensive picture of a person's

22

movements not only in the home but everywhere, and the technology to easily analyze the data

to glean the highly private information protected by Weaver, simply did not exist.

Cell phone location history of today is most comparable not to the limited records and

technology the COUli analyzed in Miller and Smith, but rather to those records-like phone

conversations, letters, emails, and medical records-that are protected by the constitutional right

to privacy despite being retained by or accessible to third-party businesses. See, e.g., United

States 1'. Jacobsen, 466 U.S. 109, 114 (1984) (letters); Katz, 389 U.S. at 352 (phone

conversations); United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010) (e-mails); R.S ex

re!. SS v. Minnewaska Area Sch. Dist. No. 2149,894 F. Supp. 2d 1128, 1142 (D. Minn. 2012)

(Facebook messages); see also Ferguson v. City of Charleston, 532 U.S. 67, 78 (200 l) ("The

reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a

hospital is that the results of those tests will not be shared with nonmedical personnel without her

consent."). Like these records, cell phone location history, as with location history generally, is

capable of revealing our affiliations, beliefs, and interests. See supra Part I; Weaver, 12 N.Y.3d

at 442. As with these records, courts have recognized that the information=-locaticn history-is

objectively highly private. See id.; /11. re Historical Cell-Site /nfo., E.D.N. Y, 809 F. Supp. 2d at

126 (rejecting application of third-party doctrine to cell phone location surveillance because it

"would pennit governmental intrusion into information which is objectively recognized as highly

private"). A recent poll shows that 82% of adults "feel as though the details of their physical

location gathered over a period of time" is "very sensitive" or "somewhat sensitive"-even more

than the percentage of adults who feel the same way about the details of their health or

medications that they take, contents of phone conversations, or contents of email messages.

23

Mary Madden, Pew Research Ctr., Privacy and Security in the Post-Snewden Era 7 (2014)

(response to question relating to sensitivity ofGPS location information on cell phones)."

As with these other highly sensitive pieces of information that are kept by and/or

accessible to third parties, society's reasonable expectation of privacy in cell phone location

history does not depend on whether indi viduals know that these records are being kept by their

cell phone providers for the purpose ofrouting calls and other business purposes. Cf Davis,

2015 WL 2058977, at * 11.'7 Smith itself recognized that the govemment could not undermine

reasonable expectations of privacy by simply putting people on notice that their privacy could be

violated, and noted that the Kat: analysis of reasonable expectations of privacy should include a

normative inquiry. Smith, 442 U.S. at 740 n.5 (explaining that govemment announcement that

all homes are subject to warrantless entry would not eviscerate actual expectations of pri vacy).

is notice or knowledge of any third-party access would undermine privacy in this digital world,

A sweeping view of the third-party doctrine that eviscerates privacy protections whenever there

where an increasing amount of sensitive information is kept by third-party businesses. See

Jones, 132 S. Ct. at 957 (Sotomayor, l, concurring) (expressing doubt over a broad third-party

doctrine given that "people reveal a great cleal of information about themselves to third parties in

the course of carrying out mundane tasks"). The decision to participate in this digital world by

16 Available at http://www.pewintemet.org/files/201411I/PI_PublicPerceptionsofprivacy_111214.pdf.17 There are certainly some people who do not realize that their location information is being recorded by their cellphone carrier, as cell phone location data is automatically generated by the cell phone service and not tangible orvisible to the user like the bank records in Miller or phone numbers dialed in Smith. See Augustine, 467 Mass. at250; In re Records, Third Circuit, 620 F.3d at 317 ("[I]t is unlikely that cell phone customers are aware that theircell phone providers collect and store historical location information").

using a cell phone-which courts have recognized are essential to American life, see Riley, 134

S. Ct. at 2484-cannot be equated to a voluntary exposure of sensitive, private information for

any purpose. See Tracey, 152 SO.3d at 523 ("Requiring a cell phone user to tum off the cell

24

phone just to assure privacy from government intrusion that can reveal a detailed and intimate

picture of the user's life places an unreasonable burden on the user to forego necessary use of his

cell phone, a device now considered essential by much of the populace."); In re Historical Cell-

Site Info., E.D.N. Y., 809 F. Supp. 2d at 127 ("The fiction that the vast majority of the American

population consents to warrantless government access to the records of a significant share of

their movements by 'choosing' to carry a cell phone must be rejected.").

Given the State Constitution's broad protections for privacy, particularly in the search-

and-seizure area, this Court should hold that the third-party doctrine does not undermine

society's reasonable expectation of privacy in cell phone location history. Weaver made clear

that the New York State Constitution should be interpreted to protect the rights of New Yorkers

against law enforcement use of "sophisticated" technology that presents an "unacceptable risk of

abuse" if employed without judicial oversight. Wecn'er, 12 N.Y.3d at 447. Cell phone location

surveillance is another such technology against whose abuse the State Constitution must protect.

III. CELL PHONE LOCATION HISTORY SHOULD BE SUPPRESSED BECAUSEOF THE FAILURE TO OBTAIN A WARRANT.

Where law enforcement seeks to invade a reasonable expectation of privacy, Article I, §

12 of the State Constitution presumptively requires law enforcement to obtain a warrant based on

probable cause. See Weaver, 12 N.Y.3d at 447. Here, the prosecution obtained the cell phone

location history on far less than a showing of probable cause, showing instead only that the

records were "relevant and material to an ongoing criminal investigation" under section 2703(d)

of the Stored Communications Act. 18 U.S.c. § 2703(d). Because the prosecution failed to

obtain a warrant, and there are no apparent justifications for the failure, the Court should grant

the Defendant's motion to suppress historical cell phone location history. See Weaver, 12

N.Y.3d at 447 (ordering that the motion to suppress GPS evidence should be granted).

25

CONCLUSION

For the reasons stated above, this Court should grant Defendant's motion to suppress his

cell phone location history.

Dated: June 12, 2015New York, N.Y.

Respectfully submitted,

~~~~¿

Mariko HiroseChristopher DunnNew York Civil Liberties Union Foundation125 Broad St., Floor 19N ew York, NY 10004Tel: (212) 607-3300Fax: (212)607-3318Email: mhirose@nyclu.org

Nathan Freed WesslerAmerican Civil Liberties Union Foundation125 Broad Street, 18th FloorN ew York, NY 10004Tel: (212) 549-2500Fax: (212) 549-2654Email: nwessler@aclu.org

Michael PriceRachel Levinson-Waldman, pro hac viceBrennan Center for Justice

at NYU School of Law161 Avenue of the Americas, 12th FloorNew York, NY 10013Tel: (646) 292-8335Fax: (212) 463-7308Email: michael.price@nyu.edu

rachel.levinson.waldman@nyu.edu

Counselfor Amici New York Civil Liberties Union,American Civil Liberties Union, Brennan CenterforJustice, and the Electronic Frontier Foundation

26

APPENDIX A

INTEREST OF AMICI CURIAE

Amici curiae the New York Civil Liberties Union ("NYCLU"), the American Civil

Liberties Union ("ACLU"), the Brennan Center for Justice, and the Electronic Frontier

Foundation ("EFF") are civil rights and civil liberties organizations that have been involved in

seminal New York State and federal cases about the right to location privacy. See, e.g., People

v. Weaver, 12 N. Y.3d 433 (2009) (NYCLU appearing as amicus curiae in case establishing that

law enforcement must obtain a warrant as a presumptive matter before engaging in GPS

surveillance of 65 days); Cunningham v. N. Y State Dep 't of Labor, 21 N.Y.3d 515 (2013)

(attorneys from NYCLU Foundation representing state employee who was monitored secretly

through use ofGPS surveillance); United States v. Jones, 132 S. Ct. 945 (2012) (ACLU, Brennan

Center, and EFF appearing as amici curiae in a case holding that attachment of a GPS device to a

vehicle constitutes a search under the FOUl1h Amendment). Amici have submitted briefs in cases

around the country raising the question at issue in this case: whether the constitutional right to

privacy protects cell phone location history. See, e.g., United States v. Carpenter, No. 12-20218,

2013 WL 6385838 (E.D. Mich. 2013), appeal docketed, No. 14-1805 (6th Cir. Jun. 24,2014)

(ACLU, Brennan Center, and EFF appearing as amici); United States v. Davis, 754 F.3d 1205

(Il th Cir. 2014) (ACLU and EFF appearing as amici, with ACLU presenting oral argument),

revd, 2015 WL 2058977 (11th Cir. 2015) (en bane) (ACLU and EFF appearing as amici); In re

Application of the us. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) (ACLU and

EFF appearing as amici, with EFF presenting oral argument); United States v. Graham, 846 F.

Supp. 2d 384 (D. Md. 2012), appeal pending, No. 12-4659 (4th Cir.) (ACLU and EFF appearing

as amici); In re Application ofthe Us. for an Order Directing a Provider ofElec. Comme 'n

Serv. to Disclose Records lo the Gov't, 620 F.3d 304 (3d Ciro 2010) (ACLU and EFF appearing

App. A l

as amici, with EFF presenting oral argument); Commonwealth v. Augustine, 4 N.E.3d 846 (Mass.

2014) (attorneys for ACLU and ACLU of Massachusetts representing defendant on appeal and

EFF appearing as amicus).

NYCLU &ACLU

The NYCLU is the New York State affiliate of the ACLo. Both organizations are non-

profit, non-partisan public interest organizations dedicated to the defense and protection of the

civil rights and civil liberties guaranteed by the Constitution. Among the most fundamental of

these rights is the right to privacy enshrined in the Fourth Amendment of the federal Constitution

and Article I, Section 12 of the New York State Constitution. The NYCLU and the ACLU have

been at the forefront of numerous state and federal cases addressing the right to privacy.

BRENNAN CENTER FOR JUSTICE

The Brennan Center for Justice at NYU School of Law is a non-partisan public policy

and law institute focused on fundamental issues of democracy and justice, including access to the

courts and constitutional limits on the government's exercise of power. The Center's Liberty

and National Security (LNS) Program uses innovative policy recommendations, litigation, and

public advocacy to advance effective national security policies that respect the rule of law and

constitutional values. The LNS Program is particularly concerned with domestic

counterterrorism policies, including the dragnet collection of Americans' communications and

personal data, and the concomitant effects on privacy and First and Fourth Amendment

freedoms. The Brennan Center's views as amicus curiae in this case do not and will not purport

to represent the position of NYU School of Law.

App. A 2

EFF

The EFF is a member-supported civil liberties organization based in San Francisco,

California and works to protect innovation, free speech, and privacy in the digital world. With

over 25,000 active donors and dues-paying members nationwide, EFF represents the interests of

technology users in both court cases and in broader policy debates surrounding the application of

law in the digital age. As part of its mission, EFF has served as amicus curiae in landmark state

and federal cases addressing Fourth Amendment issues raised by emerging technologies,

including location-based tracking technologies like GPS and cell-site tracking.

App. A 3

APPENDIX B

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK, PART 62---------------------------------------------------------------------)(

- against - Indictment No. 5652/2014

PEOPLE OF THE STATE OF NEW YORK,

ALI MOALA WI and RICKY MOORE,

Defendants.---------------------------------------------------------------------)(

AFFIDA VIT OF REBECCA ANNE CADOFF

REBECCA ANNE CADOFF subscribes and affirms under the penalty of perjury as follows:

l. I am employed as a Data and Policy Analyst at the New York Civil Liberties

Union Foundation ("NYCLU"), located at 125 Broad Street, New York, New York 10004.

2. Ihave personal knowledge as to how the maps attached to this Affidavit were

created.

3. In creating the maps attached to this Affidavit, I reviewed Excel files named

907039," "email-3918891-20 14-238773-907041," and "email-3918891-20 14-23 8773-907044."

"ernai 1-3918891-2014-238773-906816," "email-S 918891-2014-238773-907030," "email-

3918891-2014-238773-907032," "email-3918891-20 14-23 8773-907033," "email-3918891-

2014-238773-907035," "email-3918891-20 14-23 8773-90703 7," "email-3 918891-20 14-23 8773-

Ialso reviewed a RTF document named "email-3918891-2014-238773-907052," which begins

with a section called "Key to Understanding CDMA Call Detail Reports" (hereinafter, "Sprint

Key"). Ifurther reviewed a PDF document named "Mowali Subscriber Info" (sic) which

John W. Mitchell, received these documents from the prosecution in the course of this case, that

indicates Mr. Moalawi's cell phone number. My understanding is that Mr. Moalawi's counsel,

App. B 1

he forwarded the documents to the NYCLU, and that he will submit them for the record as part

of Defendant Moalawi' s motion to suppress.

4. My understanding is that the Excel sheet named "email-3918891-2014-238773-

906816" (hereinafter, "Defendant Location Records") contains Mr. Moalawi's cell site location

records. The Defendant Location Records contained 10,438 location data points (identifying cell

site and sector) associated with phone calls made or received by Mr. Moalawi 's phone over the

course of201 days, from March 1,2014 to September 17,2014. This averaged to 51.9 location

points per day, or one location point approximately every half an hour. These figures were

calculated by totaling the number of call beginnings ancl call endings where the cell site location

c1ata were available (i.e., had a value higher than zero), and dividing by the number of days to

find the number of calls per day. The number of calls per day was then c1ivided into the number

of minutes per day, giving the average number of minutes between each call.

5. My unclerstanding is that the Excel sheets named "email-3918891-2014-238773-

907030," "ernai 1-3918891-2014-238773-907032," "email-3918 891-20 14-23 8773-907033 ,"

"ernai 1-3918891-2014-238773-907035," "email-S 918891-2014-238773-907037," "email-

3918891-2014-238773-907039," "email-3918891-20 14-23 8773-907041," and "email-3918891-

2014-238773-907044," contain information about cell sites with which Mr. Moalawi's phone

may have connected during this time period, including the location of the cell site and sector

information (hereinafter, "Sprint Cell Site Records").

6. The maps attached to this Affidavit are fair visual representations of data

contained in the Defendant Location Records and Sprint Cell Site Records.

7. Map 1 is a fair representation of all of the cell sites operated by Sprint in the New

York City area as of mid-20 14, as listecl in the Sprint Cell Site Records. To create this map, I

App. B 2

uploaded the geographic coordinates of every cell site listed in the Sprint Cell Site Records into a

mapping software called CartoDB, and zoomed in on the New York Cityarea.

8. Map 2 is a fair representation of the location of cell si tes with which Mr.

Moalawi's cell phone connected most often in the Defendant Location Records. I used statistical

analysis software (Stata version 12, using the tab command) to separate the sector information

(first digit) and cell site information (remaining digits) of "1st Cell" and "Last Cell" provided in

the Defendant Location Records to determine the cell sites and sectors that Mr. Moalawi's cell

phone connected to most frequently. There were two cell sites that Mr. Moalawi's cell phone

connected to over one thousand times in the Defendant Location Records: NEID 30, Cell Site

764 (connected 3,452 times) and NEID 158, Cell Site 936 (connected 1,729 times). The next

most frequent site was considerably lower, at 200 connections, so I focused on the two most

frequent sites. I determined the geographic coordinates of these two cell sites using the Sprint

Cell Site Records, and uploaded the coordinates into GoogleMaps to determine the street

addresses of these cell sites. Mr. Moalawi's cell phone connected 3,452 times to a cell site at 39

Semon Road in Huntington, New York. Specifically, his phone connected almost exclusively to

the Beta sector of the cell site, which according to the directional information provided in the

Sprint Cell Site Records (specifically, "email-3918891-2014-238773-907044") faces southeast.

Mr. Moalawi' s phone connected 1,729 times to a cell site at 2675 W. 36th Street in Seagate,

Brooklyn. Specifically, his phone connected to the Beta and Gamma sectors of the cell site,

which according to the directional information provided in the Sprint Cell Site Records

(specifically, "email-3918891-20 14-23 8773-907032") face west and southwest. I determined the

direction of the sectors using the cardinal direction indicated by the "Azimuth" col umn of the

Sprint Cell Site Records, and the description of Sector Layout described in the Sprint Key.

App. B 3

9. Maps 3-6 contain fair representations of the locations of cell sites to which Mr.

Moalawi's cell phone connected on various days between March l and March 7, 2014. In order

to create these maps, I selected the records for March l through 7, 2014, from the Defendant

Location Records. I removed any record that did not explicitly include Mr. Moalawi's phone

number, and any record that did not have cell site location information associated with it. For

the "I st cell" and "last cell" columns, I separated out the sector information (first digit) from the

cell site information (the remaining digits). I then looked up the geographic coordinates

(latitude, longitude) corresponding to each cell site in the Sprint Cell Site Records by using the

VLOOKUP function. I then created an Excel sheet that listed the date/time and geographic

coordinates for each time the records reflected that the phone connected with a cell site at the

beginning or encl of a call, and orclered them chronologically. I divicled this master list into

separate Excel spreadsheets according to each logical clay (e.g., if Mr. Moalawi's cell phone

connected with a cell si te at 00: 12: 14 - or j ust after midnight - that call was associated wi th the

previous day), and uploaded each spreadsheet into GoogleMaps. The maps therefore contain the

geographic coordinates for each cell site with which Mr. Moalawi's phone connected during

each day, color coded by time of day. Where there was overlap, the individual points are not

visually distinguishable.

10. Additional text labeling the time of each connection to cell sites was added to

Maps 3-6 for clarification. I reviewed the text to ensure that the additional text fairly describes

the connection to cell sites appearing on the map.

ll. The blue lines were added to Maps 3-6 in GoogleMaps to display inferences of

driving routes based on the cell sites with which Mr. Moalawi's phone connected at certain

times. I reviewed these driving routes and believe that they represent fair inferences.

App. B 4

12. On March 2, 2014, Mr. Moalawi' s cell phone consistently connected with the cell

site at 39 Semon Road in Huntington, New York. It connected with that cell site 22 times

between Il :23 AM. and 7:12 P.M.

13. On March 4 and 5, 2014, Mr. Moalawi's cell phone consistently connected with

the cell site at 2675 W. 36th Street in Seagate, Brooklyn. On March 4, 2014, Mr. Moalawi's cell

9:10 P.M.

phone connected with that cell site 38 times between 10:15 A.M. and 7:45 P.M. On March 5,

2014, Mr. Moalawi's cell phone connected with that cell site 60 times between 9:37 A.M. and

Dated: June 11,2015

Sworn to before me this_li_th day of June, 2015!~P09NO~PUBLlC

JESSIC \ GRACEANN PERRYNotar. l'ublic, State of Nevv York

NO.OIPE6279507Qualified in New York Countv

Commission Expires ü4/0~/2ü i7

App. B 5

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MAP 2: Cell sites with the most connections between March 1, 2014, and September 17, 2014.

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MAP 3: Cell site connections on March 1,2014.

• The markers appear only once on the map when the cell phone connected with the same cell site more than once.• The markers are coded by color: yellow represents morning, orange represents afternoon, red represents late

afternoon to early evening, and gray represents late evening.• Blue lines and arrows represent inferred driving routes.• Seconds are indicated where multiple connections occurred within the same minute.

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MAP 4: Cell site connections on March 3, 2014.

• The markers appear only onee on the map when the cell phone connected with the same eell site more than once.• The markers are coded by color: yellow represents morning, orange represents afternoon, red represents late

afternoon to early evening, and gray represents late evening.• Blue line and arrows represent inferred driving routes.• Seconds are indicated where multiple connections occurred within the same minute.

(( 10:1 0:02 AM • 5:0-4:53 Plvlç' 10:10:27 AM • 7:14:27 Plvlfl11 :15:09 AM

• I:l I:Lb PM~ 11:15:14AM

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• 7:24:15 PIvI~ 1l:30:12AM

• 7:28:30 PI'IIV' 11 :39:20 AM

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íJ 12:46:26 PM • 7'5ï:25 PM

ti 1:14:32 PM • 3:15:15 PI',I

fJ 1:14:45 PM • 8:1 7:24 Plvl1':11:16:31 Plvl • 8:1 7:29 Plvl{',¡ 1:43:51 PM • 8:1 7:33 PI','I~ 1:60:22PM

• 8:17:38 PM;) 1:53:25 PM

• 9:20:38 PI',I\') 1:54:34 PM

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MAP 5: Cell site connections on March 6, and early morning of March 7,2014.

• The markers appear only once on the map when the cell phone connected with the same cell site more than once.• The markers are coded by color: yellow represents morning, orange represents afternoon, red represents late

afternoon to early evening, and gray represents late evening.• Blue line and arrows represent inferred driving routes.• Seconds are indicated where multiple connections occurred within the same minute

\) 9,18:34 Ar,'1

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• 5:58:09 PI',l

• 5:02:36 PM

• 5:03:45 PI'JI

• 6:21:07 PI,'I

• 6:22:55 PI,.I

• 6:23: 19 Pld

• 6:45:30 PI'.'1

• &:45:54 PI'JI

• &:52:51 PM

• &:53:22PM

• 7:03:26 Ph.'l

• 7:04:35 PM

• 8:02:59 PM

• 8:04:57 PM

• 9:31:34 PM

• 9:32:22 PM

• 9:.34:45 PM

• 9:,35:24 PI",

• 9:43:13 pr",• 9:54:45 Plv]

• 9:55:02 PI',1

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MAP 6: Cell site connections on March 7,2014.

• The markers appear only once on the map when the cell phone connected with the same cell site more than once,• The markers are coded by color: yellow represents morning, orange represents afternoon, red represents late

afternoon to early evening, and gray represents late evening.• Blue line and arrows represent inferred driving routes.• Seconds are indicated where multiple connections occurred within the same minute.