NYPD Expands Use Of Controversial Subpoenas To Criminal Cases
Administrative subpoenas—which do not require a judge’s approval—are typically used for the department’s internal investigations, but The Appeal has learned that they are being used in criminal cases.
When a prosecutor attempts to obtain evidence related to a third party, such as bank or phone records, they issue a judicial subpoena for the materials they seek. Across the country, judges are available around the clock to review and fulfill such requests.
Each subpoena lists the court or grand jury under whose authority the subpoena was issued. That judicial body is also where issues with and objections to the subpoena—such as matters of scope and propriety—can be raised by defense counsel.
Such safeguards, however, are not present in an investigative technique now being used by detectives in New York City: serving criminal suspects with administrative subpoenas issued by the NYPD. Traditionally used by the NYPD for internal investigations of alleged misconduct or impropriety by police department employees, the administrative subpoenas have baffled local defense attorneys and prompted criticism that they are being used to evade the independent oversight inherent in the judicial subpoena process.
In at least four cases dating back to 2017 reviewed by The Appeal, NYPD detectives have used administrative subpoenas to request information for criminal cases. The cases concern robbery and grand larceny investigations.
“If you receive a normal one of these subpoenas, you know where to go to quash it,” said Jerome Greco, an attorney with the Legal Aid Society’s Digital Forensics Unit. “With the administrative ones [from] NYPD, they’re returnable to One Police Plaza. So if you wanna move to quash, where do you go? Who gets to make that decision? Where do you seek redress?”
The NYPD’s suit-and-tie investigators go by the self-appointed title of “Greatest Detectives in the World,” and have their reputations burnished by television shows such as “Law and Order” and “Blue Bloods.” But in recent years the department’s investigative ranks have faced extensive scrutiny for envelope-pushing investigative techniques, from the use of DNA dragnets (mass collection of DNA samples by the NYPD) such as the swabs collected from 360 of Black and Latinx men in Queens during the 2016 search for Karina Vetrano’s killer, slipshod handling of sexual assault cases, and persistent “testilying”—lying on the witness stand—that has left at least one disgraced narcotics detective facing criminal charges and out of a job.
According to the city charter and state law, the NYPD and other city agencies like the New York City Fire Department and the Department of Buildings are authorized to issue administrative subpoenas for matters such as internal disciplinary investigations or code enforcement. But the legal authority claimed by the NYPD to use such subpoenas in a criminal context is murky. Each of the administrative subpoenas reviewed by The Appeal makes reference to Section 14-137 of the New York City Administrative Code as the underpinning statute for the request. Others even reference a section of the federal anti-terrorism Patriot Act that covers access to stored telecommunications records.
All criminal cases reviewed by The Appeal concerned violations of New York State law, and were ultimately brought in New York State courts.
Martin Stolar, a veteran defense attorney who has practiced criminal law in New York State since 1969, encountered such a request while representing a Staten Island teenager in a 2017 child exploitation investigation. Google had received an administrative subpoena from the NYPD’s Legal Department for information about the electronic accounts of Stolar’s client. “Law enforcement agencies in the United States don’t have the power to compel citizens to produce themselves or documents,” Stolar told The Appeal. Stolar sought to quash the administrative subpoena, but couldn’t do so with the NYPD. So he filed a civil suit in Manhattan Supreme Court in order to challenge the request for his client’s digital information. Rather than litigate the case, the NYPD withdrew the administrative subpoena—but then turned around and produced a search warrant for the complete digital history of Stolar’s client’s Google account.
“Shortly after I filed the papers, I heard from some fairly high up people in legal, they’re going to withdraw [the] subpoena. On Friday morning they showed up with a search warrant and ransacked my clients’ house, searching it and taking all their electronic devices,” Stolar said. The administrative subpoenas, he said, were plainly illegal.
“If they had enough evidence for a search warrant, that’s the proper procedure, that’s the Fourth Amendment—no searches and seizures without a search warrant.”
NYPD spokesman Al Baker said in an email statement that the department uses “these administrative subpoenas as important tools, early in investigations, and often to help determine whether to move forward in the courts.” Baker added that the Patriot Act reference was recently deleted from subpoenas “where terrorism is not being investigated.” He declined to respond to questions about the number of administrative subpoenas issued by NYPD’s Legal Division annually, or a breakdown of what offenses they are used to investigate.
This year has brought challenges to the NYPD’s use of administrative subpoenas in the disciplinary context, when the Internal Affairs Bureau unsuccessfully tried to obtain direct messages from the Twitter account of Tina Moore, the New York Post’s lead reporter, at One Police Plaza. Moore published leaked video footage of a shooting inside the 41st Precinct in the Bronx that angered department brass. NYPD backed down after a legal challenge from the Post‘s attorneys and changed their regulations governing how such subpoenas could be issued.
But in July, the NYPD obtained the AT&T cellphone records of a freelance journalist who covered the 2019 arrest of actor Cuba Gooding Jr. on forcible touching and sexual abuse charges. According to the New York Daily News, Internal Affairs investigators used phone records to identify and confront an NYPD officer about a leaked mugshot of the actor that ran in a Daily Mail article. The NYPD has claimed the subpoena was issued before the department changed its regulations regarding the issuance of administrative subpoenas to members of the media.
There are also challenges to the use of administrative subpoenas from within the NYPD’s ranks. This month, former officer Efrain Santiago filed a federal lawsuit claiming the department used an administrative subpoena to obtain phone records documenting his off-duty work as a chauffeur for a parolee. Santiago was twice brought up on disciplinary charges for associating with a person convicted of a felony.
“The NYPD implemented a policy of illegally, through fraud and deceit, of issuing documents reported to be subpoenas to obtain private records of those in their employ despite never having a warrant nor justifiable basis to obtain said records and without the signature of a judge,“ Santiago’s lawsuit claims.
Santiago retired from the NYPD in 2018 after 20 years of service and is currently an active duty Air Force member deployed in the Middle East.
“This is a blatant end run around judicial oversight,” said Albert Fox Cahn, the founder and executive director of the Surveillance Technology Oversight Project, of the NYPD’s use of administrative subpoenas.
In light of the ongoing racial justice protests in New York City and the NYPD’s history of political surveillance dating back to the early 20th century, Fox Cahn fears that administrative subpoenas could be used to investigate alleged crimes that took place during the protests. “The nightmare scenario is that they’d use it in a situation where you’d get a lot of pushback if you went the warrant round—we’re talking things with a clear racial nexus or political affiliations,” he said.
Fox Cahn said that the NYPD already has a relatively low bar for obtaining search warrants and that administrative subpoenas invite abuse by circumventing judicial review and oversight.
The administrative subpoenas reviewed by The Appeal date from 2017 and 2018, when Larry Byrne served as the NYPD’s Deputy Commissioner for Legal Matters. Byrne did not respond to a request for comment.
“Larry Byrne systematically fought any effort at external oversight, be it through FOIL, from the City Council, or the Mayor’s Office. He wanted the NYPD to be a self-governing entity,” Fox Cahn said.