For The First Time, A Federal Judge Has Suppressed Evidence Obtained With A Stingray Device
from the get-a-warrant,-g-men dept
Evidence acquired using Stingray devices has rarely been suppressed. This is due to the fact that it's almost impossible to challenge. The reason it's almost impossible to challenge is because the FBI -- and the law enforcement agencies it "partners" with (via severely restrictive nondisclosure agreements) -- will throw out evidence and let suspects walk rather than expose the use of IMSI catchers.
Earlier this year, a Baltimore city circuit judge threw out evidence obtained with the Baltimore PD's cell tower spoofing equipment. And this was no run-of-the-mill drug bust. An actual murder suspect had evidence suppressed because of the BPD's warrantless deployment of a Stingray device. Without the use of the Stingray, the BPD would not have been able to locate the suspect's phone. And without this location, there would have been no probable cause to search the apartment he was in. You can't build a search warrant on illegally-obtained probable cause, reasoned the judge. Goodbye evidence.
"I can't play the 'what if' game with the Constitution," [the judge] said, lamenting that it protects people from illegal searches even when the defendant is "likely guilty."
Now, it's finally happened at a higher level. For the first time ever, a federal judge has suppressed evidence obtained by the warrantless use of a Stingray device.
U.S. District Judge William Pauley in Manhattan on Tuesday ruled that defendant Raymond Lambis' rights were violated when the U.S. Drug Enforcement Administration used such a device without a warrant to find his Washington Heights apartment.
The DEA had used a stingray to identify Lambis' apartment as the most likely location of a cell phone identified during a drug-trafficking probe. Pauley said doing so constituted an unreasonable search.
"Absent a search warrant, the government may not turn a citizen's cell phone into a tracking device," Pauley wrote.
The opinion [PDF] notes the DEA first tried to locate Lambis using cell site location info but found it wasn't precise enough. So, it deployed a Stingray to track him down, ultimately ending with a DEA tech roaming an apartment's hallways with a cell site simulator until Lambis was located.
A few hours later, DEA agents showed up at the apartment, where Lambis' father allowed them to enter and Lambis himself consented to a search of his room and belongings.
It's pretty tough to work your way backwards from a consensual search to a suppression order, but Lambis' lawyer was apparently up to the challenge. But -- as in the Baltimore PD case -- the DEA would never have known which apartment Lambis was located in without the use of a cell site simulator, and that's where it all falls apart for the DEA.
The government tried to argue that two fairly recent cases involving thermal imaging (Kyllo) and drug dogs (Thomas) weren't applicable, as its "limited search" only disclosed information it could obtain without a warrant: cell site location. This is at odds with its reasons for deploying the cell site simulator -- which was that the CSLI it obtained wasn't precise enough to locate the suspect.
The court finds the government's attempt to route around these two precedential decisions unavailing, noting that the use of a cell site simulator is actually more intrusive than the search methods used in the cases the DEA's lawyers wanted to have ignored.
The Government attempts to diminish the power of Second Circuit precedent by noting that Thomas represents a minority position among circuit courts. But this Court need not be mired in the Serbonian Bog of circuit splits. An electronic search for a cell phone inside an apartment is far more intrusive than a canine sniff because, unlike narcotics, cell phones are neither contraband nor illegal. In fact, they are ubiquitous. Because the vast majority of the population uses cell phones lawfully on a daily basis, “one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful.”
The court also points out that the DEA -- for whatever reason -- obtained a warrant for the cell site location info. It wonders why it didn't bother to obtain a warrant for the cell site simulator deployment, seeing as it obtained a warrant for information it could have obtained without one. It also notes that a warrant for CSLI is not the same as a warrant for obtaining precise location info via the use of sophisticated electronic equipment.
The fact that the DEA had obtained a warrant for CSLI from the target cell phone does not change the equation. “If the scope of the search exceeds that permitted by the terms of a validly issued warrant . . . , the subsequent seizure is unconstitutional without more.” Horton v. California, 496 U.S. 128, 140 (1990)... Here, the use of the cell-site simulator to obtain more precise information about the target phone’s location was not contemplated by the original warrant application. If the Government had wished to use a cell-site simulator, it could have obtained a warrant. And the fact that the Government previously demonstrated probable cause and obtained a warrant for CSLI from Lambis’s cell phone suggests strongly that the Government could have obtained a warrant to use a cell-site simulator, if it had wished to do so.
The government also tried to use the Supreme Court's horrendous Strieff decision to save the evidence, but the court notes that the "temporal proximity" between the illegal Stingray search and the consensual search of the apartment was too close to allow the illegality of the original search to dissipate.
The government also tried to use the Third Party Doctrine to salvage its warrantless search, but the court refuses to be sold on this bad idea.
This Court need not address whether the third party doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayer, J., concurring), because even under the historic framework of the doctrine, it is not available to the Government here. The doctrine applies when a party “voluntarily turns over [information] to third parties.” Smith v. Maryland, 442 U.S. 735, 744 (1979) [...] However, the location information detected by a cell-site simulator is different in kind from pen register information: it is neither initiated by the user nor sent to a third party.
[...]
Unlike CSLI, the “pings” picked up by the cell-site simulator are not transmitted in the normal course of the phone’s operation. Rather, “cell site simulators actively locate phones by forcing them to repeatedly transmit their unique identifying electronic serial numbers, and then calculating the signal strength until the target phone is pinpointed.”
These points are good. The following, though, is even better. The court finds the government can't attempt to use the Third Party Doctrine when it has chosen to act as the "third party" in this equation.
For both the pen register and CSLI, the Government ultimately obtains the information from the service provider who is keeping a record of the information. With the cell-site simulator, the Government cuts out the middleman and obtains the information directly. Without a third party, the third party doctrine is inapplicable.
The Second Circuit has yet to make a decision on the reasonable expectation of privacy in CSLI. If this is appealed, it may finally have to handle that question. Then again, CSLI is only partially implicated here and it may be able to let the Fourth Amendment's reach be determined on a case-by-case basis until something more directly addressing the issue comes along. If nothing else, the ruling here should encourage more federal agencies operating in this district to get a warrant "just in case." Then again, the secrecy surrounding Stingray devices discourages the creation of paper trails, so it may be that the government will continue to roll the Fourth Amendment dice until a higher court tells them otherwise.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: dea, evidence, raymond lambis, stingray, suppression, surveillance, warrant
Reader Comments
Subscribe: RSS
View by: Time | Thread
About Time!!!
Governments lie, and they lie ad nauseam as well!
[ link to this | view in chronology ]
Next time, parallel construction.
[ link to this | view in chronology ]
Re: Next time, parallel construction.
[ link to this | view in chronology ]
Re: Re: Next time, parallel construction.
[ link to this | view in chronology ]
DEA has some splainin to do Lucy.
At some point and time I will assume that the DEA had the suspect in visual contact, if not many times to make the case. They could at least have identified the building and again through boots-on-the-ground investigation narrowed it down to the apartment.
Something isn't right here.
[ link to this | view in chronology ]
Well, now we know why they insist on secrecy.
The pisser is that this is just scratching the surface. Hell, this is just a 20-yard sniff for that matter. Definitely stinky.
[ link to this | view in chronology ]
Interesting...
I didn't know that they had stingray's that were THIS mobile. Maybe it is of backpack size. Plus, it has to have some type of display to tell the operator what the signal strength to the target phone is.
[ link to this | view in chronology ]
Re: Interesting...
[ link to this | view in chronology ]
Just wait...
That may be a good thing because if the defense holds its cards long enough, perhaps they can get said subcontractor on the stand.
[ link to this | view in chronology ]
IANAL, but can someone explain why an NDA is of greater legal power than the right of the defense to question the use of a device that has never gone through Daubert.
Or why, according to SCOTUS, a thermal imaging device can not be used without a warrant, but a cell site simulator can? After all they are both sensors for exactly the same electromagnet waves, just at different frequencies/energies?
Might be different if the suspect was out in public, but he was in his home, while the LEO was in effect trespassing.
Or why judges have developed such an incredible desire to destroy the Fourth Amendment in particular when we have crime rates that are historically very low. And the number of LEOs has skyrocketed.
[ link to this | view in chronology ]
Re:
A cell site simulator is NOT a sensor!
[ link to this | view in chronology ]
Re: sensor
Would you call a DS18B20 a sensor? Many years ago I would have called it a microcontroller. These days I call it a sensor. It accepts analog data, converts it to digital, possibly it to ASCII, decides if it has a valid reading, sends back an error message if not, and otherwise returns values, allows the user to specify resolution and more.
Human skin is among other things a multitude of sensors connected to a very complex computer. It can decide whether the impulse is pain or pleasure, if so, which sub variety. Even the intent of a stroking (good, bad) is in part first interpreted at the sensor level.
But I did make a mistake. I was really referring to the device that an agent roamed the halls with trying to pinpoint the location of the signal by sensing its strength.
[ link to this | view in chronology ]
Re: Re: sensor
IF what you said above was what a cell spoofer actually did, then you would be correct in claiming it's just a sensor. However, a cell spoofer doesn't do just that. A cell spoofer actively transmits and causes nearby cell phones to transmit their information in an attempt to "connect" to the cell tower the spoofer is claiming to be. In fact, the spoofing the cell simulator does causes all nearby cell phones to actively transmit far more frequently than they would under normal circumstances. It is most definitely NOT a passive receiver.
[ link to this | view in chronology ]
The point of these is to tell local and state Law Enforcement that if they reveal the existence/use of Stingrays they'll take the local/state's cool new toys away. The local/state then will drop pretty much any case they can't salvage through "parallel construction" or other means to hide it's existence to ensure they can continue to use Stingrays. This is why this case and the Baltimore case mentioned: it's the first time the police have allowed the case to get far enough to get a court ruling against them (despite their attempts to obscure it).
RE: SCOTUS
As far as I am aware, Stingrays have never been in front of SCOTUS. One would hope that considering their ruling on thermal imaging devices and the fact that Stingrays are far more invasive and active surveillance than thermal imaging, that they would rule that simulators need a warrant under most circumstances, but you never can tell.
[ link to this | view in chronology ]
Re: NDA
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Oops, how did that happen?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]