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Pen Register and Trap and Trace Order

Records reflect that a man is charged with Robbery in the different degrees, Grand Larceny in different degrees.

Upon stipulation by both parties, this Court conducted a Huntley, Mapp, Dunaway and Wade hearing. The Huntley portion of the hearing pertained to a written statement allegedly made by the accused to the Police after his arrest. The Mapp portion of the hearing was regarding a Blackberry cellular phone which was allegedly seized from the criminal defendant. The Dunaway portion of the hearing was regarding the probable cause to arrest the defendant in his grandmother’s apartment. The Wade portion of the hearing was regarding a photo array which was shown to the complainant.

During the trial, a Detective testified that he was notified by the Police Department that a pedestrian robbery had occurred at approximately 7:30 p.m., at a given location. Detective immediately proceeded to that location. Upon arriving at the scene, Detective with Police Officers, and with the two complainants. The criminal complainants informed the Detective that they were walking along the Road, when a car pulled up and three men jumped out of the car and approached them. The complainants told the Detective that one of the individuals, described as a “light-skinned male black,” pulled out a dark colored handgun and demanded their cellular phones, money and valuables. One of the complainant told the Detective that the men took his Blackberry cellular phone. The complainants said that the men then got back into the car and drove away. The Detective recorded the phone number of the cellular phone, as a result of the information which he received from the complainants, he applied for a Pen Register and Trap and Trace Order, regarding complainant’s cellular phone. The Order was granted and authorized the Police to use Global Positioning Satellite (G.P.S.) technology to track the location of the cellular phone.

The G.P.S. tracking of the cellular phone led them to an apartment building. When they entered the apartment, he saw two young men sitting on the couch in the living room. The Detective noticed that one of the young men, identified in Court as the accused, was a “light-skinned male black,” and was holding a Blackberry cellular phone. The Detective testified that he then used his Police Department issued cellular phone to dial the phone number of the complainant’s Blackberry cellular phone. The Detective testified that at that point the Blackberry cellular phone that the accused was holding immediately began to ring. The Detective then seized the Blackberry cellular phone from the accused and placed him under arrest.

The following issues are submitted before the court for decision:

Whether or not 1.) the entry into the building and the apartment is valid; 2.) there is probable cause for the arrest of the accused; 3.) the seizure of the cellular phone is valid; 4.) the photo array submitted in evidence is valid; 5.) the written statement of accused was voluntary.

The criminal court held that, based upon the combined testimony of the three Detectives, this Court finds that they were led to a particular street, as a result of the Electronics Squad receiving the G.P.S. location of the complainant’s cellular phone. The G.P.S. tracking of the cellular phone was authorized by the Pen Register and Trap and Trace Order. Since the use of the G.P.S. technology was authorized by the Pen Register and Trap and Trace Order, this Criminal Court finds that the location obtained using the G.P.S. technology provided the Police with not only a reasonable basis, but reasonable suspicion to travel to and enter the building.

Based upon the testimony adduced at the hearing, this Court finds that the Detectives were led to the apartment as a result of the Electronics Squad receiving the G.P.S. location of the complainant’s cellular phone. As set forth above, the G.P.S. tracking of the cellular phone was authorized by the Pen Register and Trap and Trace Order. Consequently, the Detectives had reasonable suspicion to request entry into the apartment. This Court finds that the entry into the apartment, by the Detectives, was based on the consent of the apartment owner. The apartment owner turned out to be the same woman who was wearing a “Community Watch” jacket and who was previously seated at a table in the lobby of the building. Ironically, the woman also happened to be the accused’s grandmother.

This Court finds that there was probable cause to arrest the accused. To sustain a finding of probable cause to arrest, the evidence must show that the police possessed information that would lead a reasonable person to conclude that it was more probable than not that a crime had been committed, and that the person being arrested was the perpetrator. In this case, the Detective testified that the accused fit the description of one of the individuals involved in the alleged robbery, i.e., a “light-skinned male black.” In addition, the accused was holding a Blackberry cellular phone that fit the description of the complainant’s cellular phone. Finally, the Blackberry cellular phone that he was holding began ringing as soon as the Detective dialed the complainant’s cellular phone number. Defense counsel’s assertion that this could have merely been a coincidence is simply untenable. Moreover, the G.P.S. tracking of the complainant’s cellular phone placed the phone within the apartment. Based upon all of the facts and circumstances, there was sufficient probable cause for his arrest.

This Court finds that the Blackberry cellular phone that was seized from the accused was in the plain view of the Detective once he entered the living room of apartment. In fact, it was being held by the accused. The fact that the cellular phone began ringing after the Detective dialed the complainant’s cellular phone number, gave the Detective a basis to seize it from the accused. Further, the seizure of the Blackberry cellular phone was also justified as being incident to the accused’s arrest. Therefore, his motion to suppress the Blackberry cellular phone is hereby denied.

This Court holds that there was nothing unduly suggestive regarding the photo array, or the manner in which the Detective presented the photo array to the complainant. This Court finds that the People established the reasonableness of the Police conduct and the absence of suggestiveness in the photo array. The motion to suppress the identification of the accused is hereby denied.

This Court finds that the written statement by the accused was given after he was arrested and in custody. Hence, the People are required to prove that he was advised of his Miranda Rights, and that he knowingly, intelligently and voluntarily waived his Miranda Rights prior to making the statement and that the statement was given voluntarily. This Court finds that prior to a Detective asking the accused any questions, he read to him his Miranda warnings using a Miranda Rights card. Further, this Court holds that the accused knowingly, intelligently and voluntarily waived his right to remain silent, answered the questions of the Detective, and voluntarily provided a written statement. This Court concludes that the written statement made by him was voluntarily made by the accused without any threats, physical force or coercion by a Detective.

Stephen Bilkis & Associates, with locations throughout New York, extend the services of its legal team such as the Nassau County Robbery Lawyers or the New York Criminal Attorneys in cases involving petit larceny, burglary, murder and the likes.

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