Prosecutors are generally a traditional lot and rarely big risk takers. Too much is hanging in the balance with people’s lives and reputations. They expect close scrutiny of their work whether from experienced supervisors, skeptical and zealous defense attorneys, the wary eyes of trial and appellate courts, and, of course, the news media and the general public. You accept all of that when you take the oath of a prosecutor to defend and preserve the Constitution. That’s why when the U.S. Supreme Court handed down its groundbreaking decision in Carpenter v. United States, __U.S. __, 201 L. Ed. 2d 507, 138 S. Ct. 2206 (2018), some criminal attorneys waited with anticipation as to how prosecutors would handle the new rule.

For instance, would prosecutors continue with so-called “cell site orders” utilizing as the predicate tool, the Stored Communications Act’s §2703(d), adding the higher standard of “probable cause,” or would they revamp their toolbox, and utilize “cell site warrants,” and risk that some court may require strict adherence to the search warrant protocols of New York’s criminal procedure law, that is, C.P.L. Article 690? A recent Second Department case, People v. Costan, 197 A.D.3d 716, 718-19 (2d Dep’t 2021) lv. den. 37 NY 3d 1095 (Nov. 30, 2021) answers that question, and explains how the court responded.

Background