Florida Appeals Court Says Govt's Lack Of Good Faith Can't Save A 2012 Warrantless Stingray Deployment

from the lying-about-your-tools:-that's-going-to-cost-you dept

A good ruling [PDF] has been issued by a Florida Appeals Court -- one that not only affirms its earlier warrant requirement for Stingray use, but also reminds law enforcement that the good faith exception isn't as expansive as they think it is. (via FourthAmendment.com)

In 2018, the same court said the use of cell site simulators required warrants. Unlike collecting cell site location info from third parties (which was fine until the Supreme Court's Carpenter decision), Stingray devices turn the government into the second party, coercing location info from phone users by forcing them to connect to law enforcement's fake cell towers.

That decision doesn't bring precedential force to this case, which deals with events that happened six years before the state appeals court's 2018 ruling.

In 2012, the State charged the defendant with first-degree murder after his mother was found dead in their shared apartment. Detectives tracked the defendant using cell-site location information and a cell-site simulator. The defendant was found sitting in the victim’s parked car along with several pieces of evidence. The defendant moved to suppress the evidence, arguing it was obtained in violation of his Fourth Amendment rights. The trial court granted the motion to suppress, and the State appeals. We affirm the suppression order.

Six years later, a whole lot of evidence in a murder trial is going to be eliminated. The government's attempt to have the good faith exception applied dead ends here as well. The state argued detectives deployed the Stingray device without a warrant in good faith, since there was no binding precedent forbidding them from doing so. But the court points out it isn't willing to grant "good faith" to officers doing stuff just because no one has told them they can't yet.

The officers might have operated in good faith if their warrant request wasn't crafted in bad faith. The court notes precedent at that time (prior to the Supreme Court's Carpenter decision) allowed law enforcement to obtain cell site location info without a warrant.

Here, the State lacks the benefit of longstanding precedent authorizing the warrantless use of CSLI. However, Tracey I and the statutes authorizing law enforcements to access CSLI with a court order, taken together, provided sufficient precedent on which the detectives reasonably relied.

But investigators didn't actually obtain CSLI from a third party. They deployed a cell site simulator instead.

The cell-site simulator is another matter. Neither the application nor the court order mentioned a cell-site simulator.

The state might be technically correct, but technically correct isn't good enough in Florida.

In 2012, no binding case law addressed whether police must obtain a warrant to use a cell-site simulator. The good faith exception applies when binding precedent affirmatively authorizes a particular police practice.

Authorization is the key. And this court is one of the few that has applied the good faith standard this way. The government should not be able to operate freely in legal vacuums. That's what many choose to do, and far too many courts have decided good faith applies until something is expressly forbidden by a precedential decision. Not here.

The Fourth Amendment violation here is precisely the kind of violation the exclusionary rule seeks to deter. The CSLI data led detectives to a broad search area where the defendant was located. Unable to find the defendant’s exact location, the detectives went outside the scope of the court order and used a cell-site simulator to locate him.

This should be the standard for the good faith exception.

The government cannot rely on the absence of binding decisional law in this area to conduct a warrantless search.

The government should act cautiously in the absence of binding precedent. Instead, it exploits every gray area not sufficiently explored by courts. This is not how public servants should act when faced with a lack of specific guidance. Making up the rules as you go along is not "good faith." Neither is hiding the use of a cell site simulator behind a court order for cell site location info. The more the government acts this way, the less it can be trusted. Moving it back in line with the principles it's supposed to be upholding will take more decisions like this -- ones that call out bad faith for what it is, rather than pretend every under-explored area of the Fourth Amendment is covered by the good faith exception.

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Filed Under: 4th amendment, cell site location info, csli, florida, stingray, surveillance, warrant

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  • identicon
    Anonymous Coward, 12 Dec 2019 @ 4:08pm

    A good ruling has been issued by a Florida Appeals Court

    It took a good few minutes to get past this line.

    reply to this | link to this | view in chronology ]

  • identicon
    stine, 13 Dec 2019 @ 4:26am

    aren't the missing something

    I have always been under the impression that the 10th amendment "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people." says they can only do what the laws specify that they can do.

    reply to this | link to this | view in chronology ]

    • icon
      Norahc (profile), 13 Dec 2019 @ 5:37am

      Re: aren't the missing something

      Your impression assumes the government gives a damn about the Constitution...which doesn't seem to be the case over rhe past couple of decades.

      reply to this | link to this | view in chronology ]

      • identicon
        Jack B. Thug, 13 Dec 2019 @ 6:19pm

        Re: Re: aren't the missing something

        "Your impression assumes the government gives a damn about the Constitution...which doesn't seem to be the case over rhe past couple of decades."

        And the police are acting on the assumption that the government doesn't give a damn - which means they're acting in good faith! Quite the Costanza defense, isn't it?

        reply to this | link to this | view in chronology ]

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