New technologies result in drastic changes in the methods law enforcement use to investigate drug crimes. But does the use of these new technologies comport to the 4th Amendment and its prohibition against unreasonable searches?
A relatively new device, called a Stingray or IMSI catcher allows law enforcement to circumvent cellular companies and possibly the Courts. Stingray is a hand-held device which simulates a cell tower. When brought into a neighborhood, cell phones nearby will attempt to register with the device as if it were a real cell tower. This allows law enforcement to identify the location of a cell phone if the number is known. Law enforcement can also “lock” Stingray on a residence where a suspect is located and identify an unknown number from a commonly used “burner” phone by registering the phone’s inside “pinging” to the device. Once the number is known, a warrant is obtained and communications can be intercepted while the unsuspecting dealer continues his illegal activities.
In response to the growing use of StingRays in criminal investigations, the Justice Department announced in September of 2015 a policy that requires Federal Law Enforcement Agents to obtain a warrant before deploying cellphone-tracking devices. The new policy is a comprehensive move by the Department intended to “promote transparency and consistency and accountability.” The move is largely an acknowledgement that the use of these devices raise serious privacy concerns.
The new policy will require law enforcement to obtain a warrant before using a StingRay or any similar cellphone-tracking device. An exception for exigent circumstances will remain under the new policy to allow law enforcement to deploy the technology without a warrant in emergency situations, such as, preventing the destruction of evidence, pursuing a fleeing felon, or to protect human life or prevent serious injury. The policy will also require annual reporting on the number of times a cell-tower simulator is used, how many times another agency has requested and obtained permission for use, and the number of time a simulator is used under the exigent circumstances exception.
In August of this year, a federal court in California heard a case involving the use of StingRays to track a suspect’s phone after the shooting of an Oakland Police Officer. (U.S. v. Purvis Ellis). The defendant in the case moved to suppress the information obtained by the StingRay, because it amounted to a warrantless search in violation of his 4th Amendment rights since the phone was located within his residence at times. The defendant argued that the Supreme Court’s decision in Riley v. California (2014), holding that the information contained on a cellphone is protected under the 4th Amendment, should be extended to protect the real time use and location of the cellphone itself. The Court noted in its decision that several judges have indeed required warrants to obtain historical cell site location information from service providers. It goes on to explain that the nature of our reliance on technology means that most people have their cellphones on their persons or nearby at all times. This means users have an even stronger privacy interest in the real time location of their cellphones than the Supreme Court recognized in Riley. For this reason, law enforcement must first obtain a warrant to gather data collected by a StringRay unless an exception to the warrant requirement exists. However, the Court went on to hold that the data obtained here could be used, because exigent circumstances existed, i.e. the police were searching for a suspect in a shooting known to have been armed and considered dangerous.
The Federal Circuits and possibly even the Supreme Court will address the issue of whether law enforcement must obtain a search warrant before using the StingRay to either identify a person’s location and/or his cellphone number. Although most courts have required a warrant, the issue may focus upon whether law enforcement is capturing content with the StingRay or using it solely as a cell tower simulator.
If you need a lawyer for a criminal State of Ohio or Federal Criminal case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.
