E.D.N.Y.: Defendant had standing to challenge historical CSLI on cell phone despite it being issued in another’s name

Defendant had the cell phone but it was issued under the name of another because, he claimed, he couldn’t get one on his own. The government argued no standing. The defendant, however, had standing in the cell phone to question the historical cell site location information because he possessed and used the phone and acknowledged it was his. The information was obtained by court order and was otherwise valid under the order or the good faith exception. United States v. Herron, 2014 U.S. Dist. LEXIS 26989 (E.D. N.Y. March 3, 2014):

Here, there is no dispute that the cell phone at issue was used by Defendant. In his affidavit supporting the October 9, 2009, sealed application AUSA Burwell stated that the phone was issued by the provider to “James Benbow” but used by Defendant. (Sealed Application at 1-2.) AUSA Burwell further averred that Defendant had been arrested with the phone in his possession, at which time he had acknowledged that it was his. (Id. at 3.) It would be improper to allow the Government to gain access to historical cell-site data on sworn affirmation that Defendant possessed, used, and acknowledged ownership of the phone, and yet maintain that Defendant does not have standing to attempt to suppress it. Further, AUSA Burwell’s sworn statements are consistent with Defendant’s own affidavit, in which he states that although the phone was registered to Mr. Benbow, Defendant “was the sole user of the cellphone,” used it “exclusively,” and paid Mr. Benbow for the charges for that phone number. (Def. Aff. at 1-2.) The court finds that there is sufficient factual basis to support a finding that Defendant had a legitimate expectation of privacy in the targeted cell phone and therefore Fourth Amendment standing to bring his motion.