Child Support Arrears in New York Are No Party (Up in Here)

An interesting story developed this past weekend which virtually covered all of New York State.  No, I’m not referring to the fascinating conclusion to the manhunt for the Clinton Correctional escapees, but rather the arrest of the rapper DMX.  According to reports, the author of such hits as “Party Up (Up in Here)” and “What’s My Name?” was arrested outside of an old-school rap concert last Friday at Radio City Music Hall in New York City.  His arrest by the New York County Sheriffs was based on his alleged failure to pay over $400,000 of back child support to his child(ren) residing in Erie County (i.e. Buffalo, NY).

I’m not familiar with any of the particulars of DMX’s child support case, but I have known men and women who fall behind on child support for relatively innocuous reasons: the loss of a job, the care of the children while the residential parent was sick or out of town for an extended period of time, or the residential parent telling them “it’s OK, I don’t need payment this month.”  Unfortunately, innocent though a person’s motives may be, the child support laws in New York are strictly construed by state administrators and the courts, and without a court order modifying or reducing child support, the person charged with paying the support under an existing court order will often get in trouble for even such “innocent” non-payment.

What are the possible punishments for failing to pay the full child support ordered by a Family Court or State Supreme Court?  According to §454 of the New York Family Court Act, if a court finds that a person “has failed to obey” a child support order, the court will enter a money judgment against the person for the unpaid support, and may:

1. Order garnishment of wages;
2. Order the person to post a bond (undertaking);
3. Order “sequestration” (seizure) of the person’s property if he or she leaves or threatens to leave the state;
4. Suspend the person’s drivers’ license;
5. Suspend the person’s professional (i.e. medicine, law) or business licenses;
6. Suspend the person’s recreational (i.e. hunting, fishing) licenses;
7. If the child is on public assistance, require the person to participate in “work activities” (such as unsubsidized employment, etc. under §336 of the Social Services Law).

In addition, if the court finds that the person has “willfully failed to obey” a child support order, the court will also order payment of the other parent’s attorney fees, and may:

1. Impose a six-month jail term on the person; or
2. Require the person to participate in a rehab program (including possible job training and/or education); or
3. Put the person on probation “under such conditions as the court may determine” for up to as long as the order of child support “applies to such person” (See Family Court Act §456).

Furthermore, even without a specific court judgment regarding child support arrears, the Division of Child Support Enforcement (a part of the state Office of Temporary and Disability Assistance), may refer the delinquent person’s name to the major credit bureaus, may intercept any of that person’s lottery winnings, may refer the person’s name to the U.S. State Department (to prevent him or her from obtaining a passport), may intercept that person’s state or federal tax refunds, and may even file a lien against the person’s real estate in New York.

Most interestingly, as of June 30, 2015, the DMV’s authority to “automatically” suspend a person’s driver’s license for failing to pay child support (after notification of failure to pay from the Child Support Enforcement Division or local Child Support Collection Unit) was repealed.  (See former Vehicle and Traffic Law §510(4-e) and former Family Court Act §454(5)).  It is unclear whether the repeal of these provisions was purposeful (as they were repealed automatically under the terms of the enacting legislation).  Nevertheless, even if the DMV and Child Support Enforcement administrators cannot independently suspend a person’s driver’s license after July 1^st of this year, a court may still order that sanction after a hearing.

As we can see, DMX (and any other person unlucky or unscrupulous enough to amass thousands of dollars of past-due child support) might face very serious sanctions by the New York courts, if not also difficulties imposed upon them by the NY Support Enforcement Division.

A Surreptitious Stingray is FOILed

A fascinating bit of legal news has come out of my old stomping grounds in Buffalo, New York. In the context of a lawsuit concerning a Freedom of Information Law (FOIL) request to the Erie County Sheriff’s Office, it was revealed that (1) local police forces like the Erie County Sheriffs have been using arguably military-grade surveillance technology to track suspects; and (2) the FBI was so scared of the public finding out the details of this technology, that it directed police forces using it, to drop criminal cases rather than reveal any information concerning the cell site simulator.

The “cell site simulator” is commonly called a “Stingray” device and is produced by the Harris Corporation. In essence, it is a movable device which mimics a cell phone tower, thereby tricking nearby cell phones into transmitting location data and other data to the device, rather than a real cell phone tower. Even more troubling, as Judge NeMoyer of the NYS Supreme Court in Erie County noted in his trial court order: “[e]vidently, cell site simulators also can be used to ascertain telephone calling information, such as the time of, the location from which, and the number of the call, and the device apparently allows for storage of that kind of information also for future review and analysis.” In re New York Civil Liberties Union v. Erie County Sheriff's Office, 2015 WL 1278798, at *2 (N.Y. Sup. 2015).

While the Fourth Amendment and various federal and state statutes do allow for the targeted collection of data such as call records, phone location, and even recordings of texts and conversations (i.e. wiretaps) from the phones of persons suspected of criminal activity, the Stingray device is apparently capable of collecting data from all cell phones in the area in which it is deployed. That is, it spoofs and surveils innocent phone users in the area as well as the suspected criminal’s phone.

So what is a concerned privacy advocate to do? According to the Court, “the cell phone must be ‘on,’ with some battery life remaining, in order to be located and tracked by the device, but a call need not be in progress.” Therefore, if you turn your phone off when not in use, or the battery dies (a not uncommon occurrence with an iPhone), it might be protected from this type of roving law enforcement spying.

Beyond the obvious civil liberties concerns inherent in this kind of cell phone tracking and data collection by local police forces, Judge NeMoyer also unearthed a very practical law enforcement problem with use of this technology. According to a nondisclosure agreement that the Court reviewed, the FBI required the Erie County Sheriff’s Office “to conceal from the public the existence, technological capabilities, or uses of the device. Indeed, the Sheriff's Office is instructed, upon the request of the FBI, to seek dismissal of a criminal prosecution (insofar as the Sheriff's Office may retain influence over it) in lieu of making any possibly compromising public or even case-related revelations of any information concerning the cell site simulator or its use. If that is not an instruction that affects the public, nothing is.” In re New York Civil Liberties Union v. Erie County Sheriff's Office, 2015 WL 1278798, at *13 (N.Y. Sup. 2015).

So, ironically enough, local police may use this technology to track, trace, and apprehend criminals, but if the circumstances of their identification is possibly revealed by the ensuing prosecution, the police are required to drop the case against that person. In which case, the current use of these Stingray devices may be unique in being simultaneously violative of civilians’ Fourth Amendment rights against unlawful search and seizure, and ineffective at obtaining useful evidence in a criminal prosecution.