People v. Guerra, 65 N.Y.2d 60 (1985)

The law of the case doctrine does not prevent a defendant from challenging an ex parte order, such as a warrant, in a motion to suppress; furthermore, the use of a pen register to record dialed numbers does not violate Article I, Section 12 of the New York Constitution.

Summary

Guerra pleaded guilty after his motion to suppress evidence obtained through an eavesdropping warrant was denied. The warrant was based partly on information from a pen register used without a warrant. Guerra argued the suppression court improperly deferred to the issuing judge’s probable cause determination and that the pen register violated his state constitutional rights. The Court of Appeals affirmed the denial of the motion to suppress, holding the suppression court did consider the merits of the probable cause argument and that the use of a pen register does not violate the New York Constitution because a defendant has no legitimate expectation of privacy in records maintained by the phone company.

Facts

Police used a pen register on Guerra’s phone line without a warrant, recording the numbers dialed. The information obtained was used in an application for an eavesdropping warrant. Guerra was subsequently arrested and charged with a crime. He moved to suppress the evidence obtained from the eavesdropping warrant, arguing it was based on illegally obtained pen register data and lacked probable cause.

Procedural History

The suppression court denied Guerra’s motion to suppress. Guerra then pleaded guilty. The Appellate Division affirmed the suppression court’s decision without opinion. Guerra appealed to the New York Court of Appeals, arguing the suppression court erred in deferring to the issuing judge on the probable cause determination and that the pen register’s use violated his state constitutional rights.

Issue(s)

1. Whether the suppression court erred in denying Guerra’s motion to suppress by improperly deferring to the probable cause determination of the judge who issued the eavesdropping warrant?

2. Whether the use of a pen register to record dialed numbers without a warrant violates Article I, Section 12 of the New York Constitution?

Holding

1. No, because the suppression court did consider the merits of the probable cause argument despite initial reservations.

2. No, because Guerra had no legitimate expectation of privacy in the records maintained by the phone company.

Court’s Reasoning

The Court addressed the defendant’s argument that the suppression court improperly deferred to the issuing judge’s probable cause determination, clarifying that while the suppression court initially expressed reluctance, it ultimately did entertain the motion on its merits and found probable cause was present. The court explicitly stated that the law of the case doctrine did not preclude the defendant from challenging the warrant’s validity in a suppression motion, even though another judge had already found probable cause. The Court stated that “the law of the case doctrine does not prevent the defendant from challenging a determination which he had no opportunity to litigate at the time it was made”. The court also explicitly disapproved of People v. Romney, to the extent it held to the contrary.

Regarding the pen register, the Court rejected the argument that the New York Constitution provides greater protection than the Fourth Amendment in this context. Citing People v. Di Raffaele, the Court reasoned that because the information recorded by a pen register is available to the telephone company, the defendant has no legitimate expectation of privacy in those records. The court emphasized that both toll billing records and pen register records are maintained by the phone company, and therefore, the defendant relinquished any privacy expectation by transmitting the data to a third party. Even though pen registers may capture more data than toll records, this distinction was not significant enough to warrant different constitutional treatment, as in both instances, the information is available to the phone company. The court concluded, “the defendant ‘had no legitimate expectation of privacy in the records maintained by the telephone company’”.