PEOPLE v. QUARLES (2026)

AMENDED 1 DECISION AND ORDER

Defendant is charged with Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Second Degree. In his moving and reply papers, he seeks: (1) to controvert the search warrant, for a second time, on the ground that he has new evidence; (2) to suppress non-eyewitness identification evidence or grant a Mosley hearing to determine its admissibility; and (3) to preclude ZetX/TraX evidence or grant a Frye hearing to determine its admissibility.

The People oppose. As to the search warrant challenge, the People assert that: it is untimely; Defendant's supporting evidence is not new; and in any event, the claim is meritless because the warrant was based on probable cause. The People consent to a Mosley hearing to determine whether the non-eyewitness identification testimony is admissible. With the ZetX/TraX evidence, the People assert that it is admissible and a Frye hearing unnecessary because TraX is based on cell phone tracking evidence, which is not novel, is reliable, and has been accepted by courts.

 Background and History of the Case

The indictment charges that on November 8, 2020, Defendant shot and killed Eryk Ford outside a store at 578 Ralph Avenue, Kings County. The People allege that surveillance camera videotape depicts Defendant inside and outside of the store right before the shooting wearing distinctive clothing and sneakers. Defendant, at times, was wearing a mask. The People further allege that the videotape also depicts the shooting, with the shooter wearing the subject distinctive pants and sneakers. In addition, ballistic evidence was recovered from the scene. On November 9 2020, Parole Officer Adreena Dotts, who supervised Defendant from 2018-2019 and had multiple face-to-face interactions with him, identified Defendant from a still-shot taken from the videotape. On November 10, 2020, Parole Officer Mirabella Rawlins, who supervised Defendant throughout 2019 and had multiple face-to-face interactions with him, identified Defendant from the same still-shot. On November 12, 2020, an eyewitness to the shooting identified Defendant from a photograph. The police obtained Defendant's cellphone number, identified as (201) 205-6314.

On November 17, 2020, finding probable cause, Kings County Supreme Court issued a trap-and-trace for Defendant's cellphone, including its historical data up until December 17, 2020. In addition, the Court issued a pen register and trap-and-trace of the IP addresses used by Defendant's Facebook and Instagram accounts (LaPorte, J.). The trap-and-trace on Defendant's social media accounts revealed that on December 10, 2020, Defendant's Facebook account had been logged on to from an IP address. On this same day, the People subpoenaed the service provider, Comcast, for their records regarding the subject IP address.

On December 17, 2020, finding probable cause, Kings County Supreme Court issued a trap-and-trace and cell site stimulator for Defendant's cellphone (Johnson, J.). On December 28, 2020, in response to the subpoena, Comcast identified the subject IP address from which Defendant's Facebook account had been logged on to as 3525 Southwick Road, Augusta, Richmond County, Georgia (hereinafter the "Premises"). It also identified that IP address subscriber as Lashell Gwynne, whose billing address was the Premises. From December 17, 2020 through January 12, 2021, Defendant's cellphone repeatedly was pinging in the area near the Premises. On January 12, 2024, finding probable cause, Kings County Criminal Court issued a warrant for Defendant's arrest for Murder in the Second Degree for the killing of Ford (Dougherty, J.).

On January 13, 2021, Investigator Lucas Heise of the Richmond County, Georgia, Sheriff's Office, applied to Georgia Superior Court, Augusta Judicial Circuit, for a search warrant of the Premises for Defendant and for firearms and/or firearms related material. In the affidavit in support of the warrant, Investigator Heise stated that, earlier that day, he met with US Deputy Marshall Timothy Keen, who advised him that an arrest warrant for murder had been issued for Defendant in New York and that NYPD Homicide Detective Matthew Lamendola needed assistance securing a search warrant of the Premises for Defendant and firearms and/or related material.

Investigator Heise affirmed that he then met with NYPD Detective Lamendola, who reported that on November 8, 2020, Defendant shot and killed Ford in Kings County, New York, and that on January 12, 2021, a warrant had been issued to arrest Defendant for that crime. Investigator Heise affirmed that the detective further reported that a trap-and-trace warrant on Defendant's cellphone revealed that the subject phone was hitting off cellular sites in the circumference of the Premises, and that a subpoena and trap-and-trace warrant of Defendant's social media accounts revealed that Defendant's Facebook account had been logged on to from the Premises. Based on this, the Georgia Superior Court found that there was probable cause to believe that Defendant, and firearms and/or firearms related material, would be found inside the Premises, and issued the search warrant (Craig, J.).

Later that day, law enforcement executed the search warrant at the Premises, found Defendant inside, and arrested him. In addition, law enforcement recovered the distinctive jeans and sneakers that the shooter wore as depicted in the videotape. They also recovered cellphones, a receipt to a storge unit, and identification cards. Law enforcement did not recover a firearm and/or related material from the Premises. On January 21, 2021, a Kings County Grand Jury indicted Defendant for shooting and killing Ford. After extradition to New York, on February 17, 2021, Defendant was arraigned on the indictment in Kings County Supreme Court.

On August 10, 2021, prior counsel for Defendant moved to controvert the Georgia search warrant and suppress the evidence recovered. The defense acknowledged that Defendant was a lessee of the Premises. He argued, inter alia, that there was insufficient probable cause to issue a warrant to search the Premises because the description of the Premises was overly broad, did not set parameters for the search, and the warrant applicant did not have first-hand knowledge of the information in the application. Therefore, Defendant maintained that all physical evidence seized must be suppressed. The People opposed, arguing that sufficient probable cause existed for the search warrant, and, in any event, the evidence recovered was not found pursuant to a search of the Premises, but found in plain view and thus admissible.

On December 14, 2021, the Court granted Defendant's motion to controvert the search warrant in part, and denied it in part (DelGiudice, J.). The Court found that the warrant primarily was based on the arrest warrant issued in Kings County Criminal Court and that law enforcement established sufficient probable cause to believe that Defendant would be found at the Premises. It did not, however, find that law enforcement established probable cause to believe that firearms and/or related material would be found. Because the People failed to explain how or from where the items were recovered at the Premises, the court held its suppression determination in abeyance, and ordered a Mapp hearing to determine whether or not the evidence was in plain view (DelGiudice, J.). Thereafter, Defendant's counsel was relieved and new counsel was assigned. Subsequently, on March 1, 2023, that second assigned counsel was relieved and Defendant's third counsel, his present attorney, was assigned.

 The Motion before the Court

I. Controvert the Search Warrant

Defendant moves to controvert the Georgia search warrant, for a second time, based on newly discovered material. He identifies this new material as the returns on the warrants on his cellphone and social media accounts from November 17, 2020 through the January 13, 2021, and the subpoenaed Comcast records dated December 28, 2020. He argues that he first learned of this evidence — that his Facebook account had been logged on to from the Premises and that his cellphone was pinging in the vicinity of the Premises — when the People disclosed it to him in April of 2024. He maintains that this new evidence demonstrates that probable cause did not exist at the time the Georgia Court issued the search warrant for him at the Premises, and therefore, all evidence obtained as a result of the execution of the warrant must be suppressed.

In their opposition, the People assert that Defendant's motion must be denied summarily because it is untimely. Moreover, they assert that the returns on the warrants and subpoenaed records are not new evidence because Defendant was well aware of their existence before the People provided the material to him. In any event, they claim, as the courts in Georgia and New York already determined, that there was sufficient probable cause to issue the warrant to search the Premises in Georgia for Defendant.

Subsection twenty of section two-hundred fifty-fifty of the Criminal Procedure Law governs the time in which pre-trial motions must be filed. It provides that such motions be filed within forty-five days after arraignment on the indictment (CPL § 255.20 [1]). There are, however, exceptions to this forty-five day rule (CPL § 255.20[3]). In pertinent part, this section authorizes a court, before sentencing, in the interest of justice and for good cause, to exercise its discretion and entertain and determine an untimely motion (CPL § 255.20[3]).

In this case, based on the assignment of three different attorneys to represent Defendant since his 2021 arraignment -- coupled with defense counsel's representation that he first received the evidence in April 2024 and there being no definitive evidence that Defendant had the material earlier -- combined with the fact that he challenged the warrant within a reasonable time after receiving the material, the Court finds that for good cause shown and in the interest of justice, it will exercise its discretion and entertain the untimely motion to controvert the search warrant (CPL § 255.20[3]). Thus, the question turns so whether the issuance of the Georgia search warrant was based on probable cause.

In support of his insufficient probable cause claim, Defendant asserts that the new material reveals that his Facebook account was logged on to from the Premises thirty-four days before the warrant application, and thus was too stale to establish that he would be found in the Premises on January 12, 2021. He then contends that the cell phone warrant returns, alone, are insufficient to establish probable cause because they only reveal that his cellphone was in the vicinity of the Premises, not directly inside the Premises.

The People oppose, asserting that the information presented in the warrant application established probable cause to believe that Defendant would be found at the Premises. This evidence included: that on December 28, 2020, law enforcement learned that Defendant's Facebook account had been logged on to from the Premises on December 10, 2020; that on January 12, 2021, a New York court had issued a warrant for Defendant's arrest for murder; and that Defendant's cell phone had been continually and recently pinging in the vicinity of the Premises at the time of the application. The People argue that this evidence, when viewed in its entirety, demonstrates reasonable cause to believe that Defendant would be found at the Premises on January 13, 2021.

The United States Constitution and New York Constitution speak with one voice in requiring that "[n]o warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized" (US Const. Amend. IV; NY Const. Art. 1 § 12). The determination of probable cause rests on the particular circumstances and facts of each case presented to the magistrate at the time of the warrant application (CPL § 690.40[2]; People v. Nieves, 36 N.Y.2d 396, 402, 369 N.Y.S.2d 50, 330 N.E.2d 26 [1975]. A presumption of validity attaches to that magistrate's probable cause determination (People v. Castillo, 80 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992]; People v. Hanlon, 36 N.Y.2d 549, 558, 369 N.Y.S.2d 677, 330 N.E.2d 631 [1975]).

There is no precise formula to determine probable cause (People v. Hanlon, 36 N.Y.2d at 559, 369 N.Y.S.2d 677, 330 N.E.2d 631). It requires information sufficient to support a reasonable belief that evidence of a crime may be found in a place, not proof beyond a reasonable doubt (People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985]. Generally, a search warrant application is brought by law enforcement "acting under stress and often within the context of a volatile situation" (People v. Hanlon, 36 N.Y.2d at 559, 369 N.Y.S.2d 677, 330 N.E.2d 631). Thus, the application "should not be reviewed in a hypertechnical manner," but in the "light of everyday experiences and accorded all reasonable inferences" (Id.).

Further, "probable cause is not determined by counting the number of days between the occurrence of events relied upon and the issuance of the search warrant" (People v. Clarke, 173 A.D.2d 550, 550, 570 N.Y.S.2d 305 [2d Dept 1991] quoting United States v. Rahn, 511 F.2d 290, 292 [10th Cir. 1975]); see also People v. Teribury, 91 A.D.2d 815, 458 N.Y.S.2d 85 [3d Dept 1982]). "Information may be acted upon as long as the practicalities dictate that ․ facts existing in the past, which are sufficient to give rise to probable cause, continues to exist at the time of the search warrant application" (People v. Clarke, 173 A.D.2d 550, 550, 570 N.Y.S.2d 305 [2d Dept 1991]). If "there is a time lapse between disclosure of the information sought to establish probable cause and the issuance of a warrant, substantial reliance will be placed on the nature of the offense in order to determine whether the requisite probable cause continues to exist" (People v Acevedo, 175 A.D.2d 323, 324, 572 N.Y.S.2d 101 [3d Dept 1991]).

In this case, law enforcement in New York was investigating a November 8, 2020 murder, an extremely serious crime. It was an ongoing investigation, commencing on this day and continued to Defendant's arrest. Law enforcement obtained substantial evidence that Defendant committed the murder, but his whereabouts were unknown. They quickly obtained warrants for Defendant's cell phone and social media accounts. On December 10, 2020, they learned that Defendant's Facebook account had been logged on to that day from an IP address, and immediately subpoenaed for information for the location of the IP address. On December 28, 2020, law enforcement first learned that the location of the IP address account was the Premises. They also learned that Defendant's cell phone was hitting cell towers in the vicinity of this Premises. On January 12, 2021, a New York Court found probable cause to believe that Defendant committed the murder and issued a warrant for his arrest. Armed with all of this evidence, and acting under unpredictable circumstances and the stress of a homicide investigation, New York law enforcement had probable cause to believe that Defendant would be found in the Premises. On January 13, 2023, Georgia law enforcement applied, obtained, and executed the warrant at the Premises, finding Defendant inside.

The Georgia warrant application provided ample evidence to conclude that probable cause existed that Defendant would be found at the Premises. Heise affirmed that he met with US Deputy Marshall Kean that very day. Keene advised him an arrest warrant for murder had been issued in New York for Defendant and that NYPD Homicide Detective Lamendola needed assistance securing a search warrant for the Premises for Defendant and firearms and/or related material. In addition, Heise affirmed that he then met with Detective Lamendola, who advised him that on November 8, 2020, Defendant shot and killed Ford in Kings County, New York; that a trap and trace search warrant for Defendant's cellphone was hitting off cellular sites in the circumference of the Premises; and that a subpoena for Defendant's social media accounts revealed that Defendant's Facebook account had been logged on to from an IP address inside the Premises. Reviewing this information in the light of everyday experiences, accorded it all reasonable inferences, and not in a non-hyper-technical manner, and considering the serious of the nature of the crime -- this Court finds, as the Georgia and New York courts already determined, that there was probable cause to believe that Defendant would be found at the Premises.

Finally, and contrary to Defendant's claim, the December 10, 2020, Facebook log in evidence was not stale. Rather, it was part of the evidence gathered, pursuant to an ongoing New York homicide investigation, where the prime suspect was no longer in the jurisdiction. A major part of that investigation included the collection of records outside the control of law enforcement. Evidence of the Facebook log in at the Premises, combined with evidence that Defendant's cellphone subsequently and repeatedly hit cell towers in the vicinity of the Premises including up until the day before the warrant application was filed, coupled with the New York arrest warrant for Defendant for murder, gave probable cause to believe that Defendant would be found at the Premises on January 13, 2021 (see People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985]("viewed singly [the facts and circumstances] may not be persuasive, yet when viewed together the puzzle may fit and probable cause may be found). Therefore, the determination as to whether the evidence recovered from the Premises is admissible, is held in abeyance again and a Mapp hearing is ordered.

II. Suppression of Non-eyewitness Identification Evidence.

Next, Defendant moves to preclude identification testimony of the non-eyewitness parole officers. He asserts that this testimony would usurp the jury's function as fact-finder and that evidence of his parole status would be prejudicial. The People consent to a Mosley hearing to determine whether the testimony is admissible.

As outlined already (supra at ––– – ––––), the indictment charges that Defendant shot and killed Eryk Ford outside a store in Kings County. The People allege that videotape from surveillance cameras depict Defendant inside and outside of the store right before the shooting wearing distinctive clothing, and at times, a mask. Additional footage depicts the shooting, with the shooter wearing the subject distinctive clothing. Thus, the identity of the shooter is at issue. On November 9 and 10, 2020, Parole Officers Dotts and Rawlins, who each supervised Defendant's parole and met with him face-to-face several times in the two years prior to the shooting, identified him from a still-shot taken from the surveillance videotape.

The Court of Appeals recently addressed whether a non-eyewitness to a crime may testify at trial that a defendant is the person depicted in a photo or video (People v. Mosley, 41 N.Y.3d 640, 215 N.Y.S.3d 303, 239 N.E.3d 928 [2024]). Two requirements must be met. First, the witness must be sufficiently familiar with defendant so that his or her testimony would be reliable (Id. at 648, 215 N.Y.S.3d 303, 239 N.E.3d 928). Second, there must be a reason to believe that the jury might require such assistance in making its independent assessment (Id. at 649, 215 N.Y.S.3d 303, 239 N.E.3d 928). Before admitting the testimony, a court should conduct a hearing outside the presence of the jury, where the burden is on the party requesting admission of the evidence to demonstrate that it is necessary and helpful (Id. at 650, 215 N.Y.S.3d 303, 239 N.E.3d 928). If the evidence is deemed admissible, the court should give a cautionary instruction to the jury explaining that the lay non-eyewitness testimony is opinion evidence only; that the jury is free to accept or reject it; that it is the jury who determines the facts of the case; and that it is the jury who determines whether defendant is the person depicted in the photo or videotape. This instruction should be given at the time of the non-eyewitness' testimony and again during the final charge to the jury (Id. at 650, 215 N.Y.S.3d 303, 239 N.E.3d 928). Thus, based on the Court of Appeals' decision in Mosley, this Court grants, with the People's consent, a hearing to determine the admissibility of the non-eyewitness identification evidence (People v. Mosley, 41 N.Y.3d 640, 215 N.Y.S.3d 303, 239 N.E.3d 928).

In addition, in the event the evidence is deemed admissible, cautionary instructions may be given to minimize any prejudicial effects from the testimony that Defendant was on parole. For example, the testimony as to the nature of the crime underlying Defendant's parole may be precluded. Moreover, an instruction should be given that the testimony regarding Defendant's parole status can be considered solely on the issue of identity (see eg. People v. McMurray, 271 A.D.2d 460, 707 N.Y.S.2d 131 [2d Dept 2000] [evidence of defendant's parole status admissible on issue of motive with limiting instruction]; People v. Robinson, 200 A.D.2d 693, 694, 606 N.Y.S.2d 908 [2d Dept 1994]).

III. Preclusion of ZetX/TraX Evidence or a Frye Hearing.

Defendant asserts that in April 2024, the People notified him that they will seek to introduce ZetX/TraX (hereinafter "TraX:)² evidence at trial. He contends that the People have not disclosed any experts who can explain how TraX was created, nor identified the underlying data upon which the map is formed, nor provided the internal method of the program. In addition, Defendant claims that the TraX program is not reliable, does not employ a scientific method, and is not generally accepted in the scientific community. He concludes, therefore, that TraX evidence should be precluded. In the alternative, Defendant requests a Frye hearing to determine its admissibility.

In response, the People identify the TraX program as a mapping tool, created by a law enforcement officer, which employs an algorithm, and utilizes cell phone geolocation data and antenna direction, to estimate the location of a cell phone. By gathering data from cell phone companies regarding the location of cell towers and the direction of antennas, and with the assistance of Google Earth Map, it employs an algorithm to plot a horizontal plane. The plane is a map of the estimated location where a cell phone may have been handed-off from one tower to another. In other words, utilizing an algorithm, it estimates where the cell phone may have been handed off to another tower, tracing it back to an estimated location of the initial connection. The People acknowledge that due to the number of variables -- including that the density of towers in urban and rural areas substantially differ -- the method does not produce a precise location. They recognize that "TraX mapping is only an estimate of where a cell phone LIKELY was located at the time of its connection to a phone tower" (People's Opposition at 28, emphasis in original).

Based on their explanation of the TraX program, the People oppose preclusion, asserting that it is admissible without a hearing because the method that TraX employs is not a new scientific theory as it utilizes cell tower data, which has been widely accepted by courts in New York. They also claim that TraX is generally accepted as it used by more than 100 law enforcement agencies throughout the United States, including the Kings County District Attorney's Office. In addition, the People maintain that the TraX algorithm is reliable because it is published on the TraX website, standard.zetx.com. They contend that further establishing its reliability is drive-testing, the method by which someone drives along a specific route with a radio-frequency scanner and collects samples of cell tower locations. The People assert that the drive-testing method has been accepted in a court in New Jersey and Nevada.

To determine whether expert testimony is admissible, New York courts follow the long-recognized framework set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (see also People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994]; State v. Richard S., 158 A.D.3d 710, 711, 70 N.Y.S.3d 562 [2d Dept 2018]). That is, "[e]xpert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained 'general acceptance' in its specified field" (People v. Wesley, 83 N.Y.2d at 422, 611 N.Y.S.2d 97, 633 N.E.2d 451, quoting Frye v. United States, 293 F. at 1014). If acceptance cannot be established by judicial notice, legal writings, or judicial opinion, a trial court should conduct a hearing to determine the admissibility of such evidence (see Prince, Richardson on Evidence, § 7—311 at 476 [Farrell 11th ed.]). In determining the reliability of novel scientific evidence at the hearing, the court must consider "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally" (Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 446, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006], quoting People v Wesley, 83 N.Y.2d at 422, 611 N.Y.S.2d 97, 633 N.E.2d 451). The reliability test is whether a subject procedure is generally accepted, not unanimously endorsed, by the scientific community (People v. Middleton, 54 N.Y.2d 42, 49, 444 N.Y.S.2d 581, 429 N.E.2d 100 [1981]). The burden lies with the party seeking admission of the testimony to offer evidence of its general acceptance within the relevant scientific community (State v. Richard S., 158 A.D.3d at 712, 70 N.Y.S.3d 562; Zito v. Zabarsky, 28 A.D.3d 42, 44, 812 N.Y.S.2d 535 [2d Dept 2006]).

In this case, the People failed to establish that the principles and/or procedures utilized by the TraX program, including the algorithm, have been generally accepted in the scientific and/or technological fields. The People have not presented sufficient legal writings or judicial opinions establishing that the TraX method is generally accepted, nor have they presented any other evidence by which this Court may take judicial notice of its general acceptance in a specified field. Rather, the admissibility of TraX evidence is a novel issue in New York.

Moreover, outside jurisdictions are not united on whether TraX evidence is admissible. This is so, even after a hearing on the issue of its admissibility. For example, as cited by Defendant, after a hearing, a state court in Colorado found that TraX evidence had not gained general acceptance in the scientific community, that there were no peer review reports, and precluded it (People v. Christopher Russell Jones, Colorado District Court, Larimer County, Case no.: 2022-CR-196, 2022 WL 4486182 (Sept. 20, 2022). On the other hand, as cited by the People, after a Daubert hearing, a state court in Massachusetts found that, although there was only one peer review report on the TraX program, this fact was a "less determinative" consideration and admitted it (Commonwealth v Luis Cotto and others, Ma. Superior Court, Hampden County, Nos. 2079-CR-00080-83, Apr. 21, 2023, at pg. 12-13). Further, after a Daubert hearing, a federal district court in Kentucky found that because the prosecutor did not present testimony on how the TraX program operated or how it has been received in the scientific community, it could not determine whether the TraX program was reliable and precluded it (United States v Salvador Abdul Jones, 2022 WL 17884450, 2022 US Dist LEXIS 231084 [W.D. Ken. Dec. 23, 2022]). On appeal to the Sixth Circuit, the decision was affirmed (United States v Salvador Abdul Jones, 2024 US App. Lexis 11447* [6th Cir. 2024]). Conversely, after a Daubert hearing, a federal district court in Michigan found that although there were no peer review reports on TraX evidence, it was "a close call," and admitted it (United States v Reynolds, 2021 US Dist LEXIS 160409 *11-12 [W.D. Mich. Aug. 25, 2021]). On appeal to the Sixth Circuit, the admission of the TraX evidence was affirmed in a narrow holding (United States v Reynolds, 86 F.4th 332 [6th Cir. 2023] [trial court did not abuse its discretion in admitting TraX evidence]). In addition, after a Daubert hearing, a federal district court in Pennsylvania found that although there were no peer review reports on the TraX program, there otherwise was "good grounds" to admit it and it was relevant to the facts of that particular case (United States v Torey White, 2023 WL 3161953, at *5, 2023 US Dist LEXIS 73841 *11 [M.D. Pa, Apr. 27, 2023). Thus, state and federal jurisdictions outside New York are split on the admissibility of TraX evidence.

Further, other than the People's assertion that TraX is used by more than 100 law enforcement agencies, the People have not presented evidence that TraX is generally accepted in the science or technology communities. Moreover, several state and federal courts agree that there is a lack of peer review reports on the TraX method (People v Christopher Russell Jones, Colorado District Court, Larimer County, Case no.: 2022-CR-196, 2022 WL 4486182 at 10-11; Commonwealth v Luis Cotto and others, Ma. Superior Court, Hampden County, Nos. 2079-CR-00080-83 at 12; United States v Salvador Abdul Jones, 2022 WL 17884450, at *––––, 2022 US Dist LEXIS 231084, at *27 [W.D. Ken. Dec. 23, 2022]; United States v Reynolds, United States v Reynolds, 2021 US Dist LEXIS 160409 *11-12 [W.D. Mich. Aug. 25, 2021]; United States v Torey White, 2023 WL 3161953, at *5, 2023 US Dist LEXIS 73841 *11 [M.D. Pa, Apr. 27, 2023). In addition, contrary to the People's claim, the fact that the algorithm is included on the TraX website does not render it reliable. The People offer no clarification as to what the algorithm is or why it is reliable, nor do they submit other publications establishing its reliability or general acceptance in the scientific or technological community. TraX appears to be a new investigative tool created by a law enforcement person, employing an algorithm, to assist in mapping an estimated location of a cell phone during a search for a person or other evidence. Thus, because the People have not established that TraX evidence has gained general acceptance in the scientific and/or technological community, Defendant's motion for a Frye hearing is granted to determine the admissibility of TraX evidence.

Accordingly, it is hereby:

ORDERED, upon review of the search warrant, Defendant's motion to controvert it is DENIED; and it is further

ORDERED, that the determination as to the admissibility of the evidence collected during the execution of the warrant is held in ABEYANCE, and it is further

ORDERED, that a Mapp hearing shall be conducted; and it is further

ORDERED, that Defendant's request for a Mosley hearing is GRANTED; and it is further

ORDERED, that Defendant's request for a Frye hearing is GRANTED.

The forgoing constitutes the Decision and Order of the Court.

FOOTNOTES

2.   The original name for this program was ZetX. Subsequently, it was purchased by Lexis/Nexis and renamed TraX.

Dineen A. Riviezzo, J.