Florida Appeals Court Tells Law Enforcement It Needs Warrants To Deploy Stingrays

Legal Issues

from the also-deployed:-parallel-construction dept

The Florida Court of Appeals has upheld a suppression order for evidence obtained through the use of a Stingray device. This decision draws the line between third-party info and info gathered directly by the government, even if the info collected was roughly the same. (h/t Cyrus Farivar)

In the course of investigating an armed robbery that led to the killing of one of the robbery victims, law enforcement sought assistance from the suspect’s cell service provider, asking for cell site location info and the placement of a trap-and-trace on the cellphone itself. The following comes from the appeals court decision [PDF]:

A judge signed the “CSLI Order,” which required the service provider to disclose “all cell-site activations and sectors for all incoming and outgoing calls/communications . . . call detail location records, ‘angle from the tower’ data, including contemporaneous (real-time) with these communications, and historical calls/communications detail records.” The judge also signed an order requiring the service provider to install a pen register and trap and trace device on the Defendant’s phone and transmit the information collected to the Broward Sheriff’s Office (the “Trap and Trace Order”).

Later, the State applied for a search warrant of a Fort Lauderdale residence. The affidavit filed in support of the warrant stated that “[m]obile tracking was activated on [the Defendant’s] cell phone pursuant to a lawful court order” and that the Defendant’s phone was “placed specifically” at the residence and had been “stationary overnight within this residence for several concurrent nights.” The search warrant was granted.

Law enforcement testified the cell provider could only provide “tower information,” rather than precise GPS location. To make up for this lack of specificity, investigators decided to fire up a Stingray to pinpoint the location of the suspect’s phone. This extra step — performed without a warrant — ultimately resulted in the suppression of evidence by the trial court. The government appealed, citing the subpoenas and the Third Party Doctrine. The state appeals court disagrees.

Combining the ruling on cellphone searches (Riley) and the invasiveness of new technology (Kyllo) [along with the recent Carpenter decision], the court comes to this conclusion:

Together these cases hold that, without a warrant, the government cannot: use technology to view information not visible to the naked eye, attach a device to property to monitor your location, search a cell phone in your possession without a warrant, or obtain real-time location information from the cell carrier.

With a cell-site simulator, the government does more than obtain data held by a third party. The government surreptitiously intercepts a signal that the user intended to send to a carrier’s cell-site tower or independently pings a cell phone to determine its location. Not only that, a cell-site simulator also intercepts the data of other cell phones in the area, including the phones of people not being investigated.

If a warrant is required for the government to obtain historical cell-site information voluntarily maintained and in the possession of a third party, see Carpenter, 138 S. Ct. at 2221, we can discern no reason why a warrant would not be required for the more invasive use of a cell-site simulator.

The court also notes law enforcement — in deploying a Stingray — went far beyond what was actually authorized in the judicial orders it obtained.

The CSLI Order did not authorize the State to act independently. But the sergeant and the Defendant’s expert testified that the information maintained by the service provider could not identify the exact location of the Defendant’s phone. So the State resorted to other means. In other words, the CSLI Order authorized indirect government surveillance.

But the State could not obtain the information it required through the authorized means. So the State conducted direct government surveillance by using a cell-site simulator. And it did so without a warrant. Based on controlling Supreme Court authority, the court correctly suppressed the evidence obtained as a result of the State’s warrantless actions.

The end result is suppression of evidence gathered with the Stingray device. Since it was this device that pinpointed the location of the suspect’s cellphone, the evidence obtained from the search of the residence the phone was located at is going to disappear as well. And that’s evidence the government likely can’t do without. It includes three guns, a mask, ammunition, and a stun gun — all of which likely played a part in the armed robbery.

That this happened nearly five years ago makes little difference. It may have preceded the Carpenter ruling that created a privacy right for cell site location info, but the other Supreme Court precedent on cellphone searches and the use of invasive technology (like thermal imaging) to cross the threshold of people’s homes without ever setting foot inside predates the warrantless Stingray deployment.

And a Stingray does exactly that: it forces phones — wherever located — to connect to it and give up location data and identifying info. It’s something law enforcement can’t obtain without electronic coercement and it’s far more precise than the coarse location info it can obtain without a warrant from cellphone providers. Of course, the Carpenter decision changed the math on location info, so if law enforcement really wants to locate a phone, it’s now better off seeking warrants for Stingray deployment than approaching third parties for the same data if it’s looking for something more “real time.”

Filed Under: 4th amendment, florida, imsi catcher, stingray