New Cases Hold that Using a Stingray Is a Search

Several years ago, I wrote about law enforcement use of cell site simulators, or Stingrays, noting that “[t]here’s a controversy about the legal status of these devices.” This post discusses some new cases that attempt to resolve the controversy.

Stingrays. Stingrays are portable devices that simulate cellular towers and connect to mobile phones. Law enforcement officers sometimes use Stingrays to locate a suspect’s phone. When the device connects to the phone it is seeking, it can alert its operator and can provide information about the direction from which the signal is coming. By following the direction indicated by the device, officers may locate the phone, and therefore often the suspect. If you’d like to read more about the technology, the Electronic Frontier Foundation and Wikipedia have additional information.

The controversy. There are not many cases addressing whether using a Stingray is a search or a seizure for purposes of the Fourth Amendment. This is likely a result of the secrecy with which Stingrays have historically been used, a topic I’ll leave for another post. In any event, it is possible to make arguments either way. One could argue that a Stingray simply “catches” the signals broadcast to the public by a suspect’s cell phone, and so does not infringe on any reasonable expectation of privacy. On the other hand, one could argue that a Stingray effects a search (by tracking the location of a suspect) or a seizure (by effectively disabling the suspect’s phone for as long as it is connected to the Stingray rather than an actual cellular tower).

The recent cases. The lack of precedent in this area makes it especially significant that several recent cases address the use of Stingrays.

• Jones v. United States, __ A.3d __, 2017 WL 4211499 (D.C. Ct. App. Sept. 21, 2017). Police used a Stingray to locate the defendant, a suspect in several sexual assaults. At the time of his arrest, the defendant was in possession of a knife and the victims’ cell phones, and he made an incriminating statement. He moved to suppress this evidence, arguing that the police violated the Fourth Amendment by using a Stingray to locate him without first procuring a search warrant. The trial court denied the motion, but the appellate court agreed with the defendant that the use of a Stingray is a search. It stated that “given the potential for location information gathered by a cell-site simulator . . . to reveal sensitive personal facts, people justifiably seek to keep such information private.” The court saw the Stingray as “actively induc[ing] the phone to divulge its identifying information,” and concluded that “[a]llowing the government to deploy such a powerful tool without judicial oversight” would greatly diminish privacy protections. Accordingly, the court reversed the defendant’s convictions.
• United States v. Ellis, __ F.Supp.3d __, 2017 WL 3641867 (N.D. Cal. Aug. 24, 2017). The defendant was a suspect in an attempted murder and was suspected of involvement in the shooting of a police officer. Other officers used a Stingray to locate the defendant and apparently seized incriminating evidence from him upon arrest, including “[t]he guns stolen from the officer.” The defendant moved to suppress, arguing that the use of the Stingray was a search requiring a search warrant, but that the officers obtained only a pen register/trap and trace order based on reasonable suspicion. The trial court agreed that the use of the Stingray was a search because “cell phone users have an expectation of privacy in their cell phone location in real time and that society is prepared to recognize that expectation as reasonable.” However, the court determined that exigent circumstances excused the need for a warrant in this case, and in any event found the exclusionary rule inapplicable because of the good faith and inevitable discovery exceptions.
• United States v. Lambis, 197 F.Supp.3d 606 (S.D.N.Y. 2016). Officers used a Stingray to locate a suspect’s apartment, then asked for and obtained consent to search the residence. They “recovered narcotics, three digital scales, empty zip lock bags, and other drug paraphernalia.” The defendant moved to suppress, arguing that the search was tainted by the warrantless use of the Stingray. The court agreed that “[t]he use of a cell-site simulator constitutes a Fourth Amendment search” and that “[a]bsent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device.” The court also determined that the defendant’s consent to search the residence did not render the attenuation doctrine applicable. Therefore, it granted the motion to suppress.

Is the controversy resolved? I don’t think so. Although all three of the above cases determined that the use of a Stingray is a search, only one is an appellate decision, and it is not from an exceptionally influential court. So I think the question is still open. Perhaps the Supreme Court’s ruling in the Carpenter case that Jessie previewed here will shed some light on the issue. Until then, I recommend that law enforcement officers establish probable cause before using a Stingray, and I recommend that defense attorneys move to suppress whenever they determine that a Stingray was deployed without an order based on probable cause. Agencies increasingly have policies requiring probable cause before a Stingray may be used, so the practice may be overtaking the law, but such policies certainly are not universal.

If readers have thoughts about – or experiences with – Stingrays, please post a comment.