03/02/2020 In re 381 Search Warrants Directed to Facebook, Inc. :: 2017 :: New York Court of Appeals Decisions :: New York Case Law :: New York Law :: US … first question is the focus [*27]of the District Attorney's argument concerning Facebook's standing, but is not relevant here. The exclusionary rule is a judge-made doctrine, designed to provide a sufficient deterrent to unlawful searches and seizures. The extent of its sweep is determined by policy judgments about how broadly (or narrowly) the rule must extend to provide a sufficient deterrent while not excessively barring the use of probative evidence. Those concerns are not at play here. In contrast, the traditional test for determining thirdparty standing asks whether, because an aggrieved party is poorly situated to protect his or her own rights, there is another party better situated and properly motivated to do so. Facebook is correct to apply the traditional test. Under that test, the federal courts recognize the right of litigants to bring actions on behalf of third parties, provided the litigant: (a) has suffered an injury in fact sufficient to inspire concrete interest in the outcome of the case; (b) has a close relation to those third parties; and (c) is free of some hindrance obstructing the third parties' ability to protect their own interests (Powers v Ohio, 499 US 400, 410-411 [1991]). We have not articulated a version of that test specific to New York State. The Appellate Division, writing without the benefit of Powers in People v Kern (149 AD2d 187, 233 [1989]), articulated and adopted what it then understood to be the federal standard. Rather than follow the Appellate Division's outdated interpretation of federal practice, I apply the three-part Powers test. No one questions that Facebook satisfies two of Powers' three criteria.[FN25] Thus, whether Facebook may assert the rights of its users turns on the degree to which its users would be able to protect their own Fourth Amendment rights. The District Attorney argues, and the majority agrees, that those users can vindicate their rights through pretrial suppression hearings or civil remedies. Neither I, nor -— much more importantly —- the delegates to the 1938 constitutional convention agree. Few users will be afforded the opportunity to invoke an exclusionary remedy to the alleged Fourth Amendment violation. We now know that, of the 381 users whose accounts were seized, only 62 were ever charged. Most, perhaps all, of those 62 pleaded guilty and were sentenced to probation, community service, or conditional discharge. Not one of them moved to [*28]suppress evidence seized through the SCA warrants. As we have written, "to allow the failure to prosecute . . . to serve as a shield for the allegedly illegal seizure and retention of private property by government agents would be to make a mockery of justice" (B.T. Prods., 44 NY2d at 233). https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 31/44