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Prosecutors in a murder case may use information recorded on cellphone towers to test the story of a suspect in a 2005 shooting, even though they had not demonstrated probable cause when subpoenaing the cell-tower records, a New York state trial judge has ruled. New York County Supreme Court Justice Lewis Bart Stone’s decision, People v. Hall, No. 6167/05, represents the second addition in the past week to criminal law precedent regarding cellphone towers in New York City. Earlier, U.S. District Judge Lewis Kaplan of the Southern District of New York ruled that detectives in an ongoing investigation may “capture” information that identifies which antenna tower receives transmissions from a particular phone in In re Application of the United States for an Order for Prospective Cell Site Location on a Certain Cellular Telephone, No. 06 Crim. Misc. 01. Although both cases allowed the government to use cell-tower records, the cases contained at least one significant distinction: Whereas Kaplan’s opinion granted prosecutors permission to record such information on a prospective basis, Stone’s decision allowed prosecutors to utilize information that had already been recorded for business purposes. The defendant in Hall, Alexander Hall, was one of four suspects in the shooting of three people outside Club Viva in the Washington Heights section of New York City on Oct. 12, 2005. One victim, Tabitha Perez, a 24-year-old single mother, died at the scene. An investigation led to four suspects, according to Stone’s opinion-Hall and three of his friends. The foursome had been ejected from Club Viva earlier in the evening, then got into an altercation with the club’s bouncers outside. The four suspects’ stories provided conflicting accounts of their whereabouts following their ejection from the club. Hall, for example, told investigators that he and his friends headed toward his Manhattan apartment. His friends, Javier Gonzalez and Sabin Abad, claimed that following the altercation, they drove in the opposite direction, to the Bronx, N.Y. Conflicting stories Noting the conflicting stories, the Manhattan district attorney’s office sought a court order for cell-site records that would enable prosecutors to determine where the men-or more specifically, their phones-were at relevant times. Namely, prosecutors sought information routinely retained by T-Mobile for its own business records, including, among other information, the approximate locations from where calls were made. An acting New York County justice, Michael R. Ambrecht, issued the subpoenas. Hall then moved to suppress the records, arguing, among other things, that the state had failed to show probable cause as required under the Electronic Communications Privacy Act of 1986. The communications act, however, contains an antiquated description of tracking devices. The 1986 law already “represents an almost antediluvian age” compared to present technological standards, Stone wrote. The act’s definition of a tracking device as a “one-way radio communication device that emit[s] a signal on a specific radio frequency” resembles the classic “bug,” which police might hide in a suspect’s clothing or car.

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