Appeals Court Rules `StingRay' Use Requires Warrant (Audio)

does June. The stingray is a fascinating piece of technology developed apparently by CIA and military types for use in overseas theaters. But basically what it does is it imitates UH cell phone towers, which is to say, it will send out a signal, communicate with cell phones in the area,

and make the cellphone stink. They've been called dumb devices by some judges that they're communicating with a cellphone tower and that enables the stingray device after it captures this information from your cell phone to help the police determine your precise location. So basically, it converts a cell phone into a tracking device and UH and in it with

conventional directional attracking. The police sit in with this little device, and they can move around and determine with much greater accuracy than is available otherwise from the cell phone towers the precise location, concluding in some cases and in case the DC case, precise location of the suspect who was in an apartment or a house. Limberg laws brought to you by Sector Spider e t S. Why by a single stock when you can invest in the entire sector.

Visit sector spd rs dot com or call one eight six six Sector e t F. So, George, is this in this case that in d C? Was this a typical use of a sting ray? In this case? If I understand it correctly, they didn't know who the person was who was the alleged portrator, and they used the device not just to find the person, but also to figure out who in fact he was. Well, the device

doesn't help them figure out who he was. You are right, the police did not know the identity of the In this case, a inaptlete named Prince Jones was had assaulted several ladies of the evening escorts, accosted them, made arrangements to meet them uh and then robbed them and uh and and committed other crimes. They did not know who he was. They knew who the victims were, and the victims provided their cell numbers, but they knew his cell

phone number. It was a disposable phone, so there was no subscriber information that could be obtained as normally they would do um. So it wasn't until the police identified his location and arrested him in possession of both his cell phone and the and the victim cell when they were able to identify him. So George tell us about

the courts link. So the court applied a conventional Fourth Amendment analysis, which is to say, is the use of this technology clearly something again that would never have been contemplated if by the founders when they enacted the Fourth Amendment? Uh and they said. The court said following, I might add a number of other courts, including a Court of Appeals in Maryland and a couple of federal courts of appeals, and determined the first question is was this a search?

Is the use of this technology to capture information from a cell phone without these obviously the customers permission or consent? Is that a search? And if it was a search in this case, the DC police curiously did not have a warrant they could have, the court pointed out, obtained a warrant and had plenty of time. Uh. And if there was a search, because it was without a warrant,

it violated the Fourth Amendment. The court went through the analysis and determined using the traditional invasion of privacy test, that it was a search uh, And that for that reason, it's suppressed all of the evidence and this notorious criminal goes free. George, I just have a follow up. Does

it seem like a technicality? Because the appeals court rule that if the police had used the stingray on one of the victims phones which the defendant had, instead of the defendants, the search would have been legal because the victims consented to the search. It was a technicality, and that that argument was made below because recall, the perpetrator, Prince Jones, had not only his cell phone that he used to establish this liaison, but the victims cell phones.

It was unclear of reading the Superior Court's decision and the Appellate Court decision, however, whether or not they were able to track the location. Had they been able to track the location by pinging or using the stingray and determine the location of the victims phones, then it would not have been a with them a violation. But the

court was not able to determine that. So, yes, the technicality, but the important principle really, which is the principle of law here, is that this technology is highly invasive and

probably does intrude upon a reasonable expectation of privacy. I think those of us who have cell phones who do not expect that the government is going to be able to use these cell phones to track our location at any given time, at least without a warrant, probable cause and a warrant, Well, George, isn't the flip side of that argument or the argument that prosecutors made something along the lines of you know, hey, when I have a cell phone and I'm using it, I do assume that

I am giving away at least some location data because my my cell phone company is is acquiring that data. So does that affect the the the analysis of what is a reasonable expectation of privacy a great question. It's certainly actors into the analysis of as to whether or not the holder of the cell phone has a reasonable expectation of privacy. Curiously, in the oral argument, according to the opinion of the government, argued it, well, look, we all know and June, of course, is a great fan

of using media clips to prove her various points. And they said, look, we all know from TV's shows that people who have these burner phones destroy them. We all know that the cell phones can be used to track our location, and therefore you know the defendant was unnoticed. I don't think that argument really carries enough water, because just because we may realize that technology exists does not

necessarily dissipate a reasonable expectation of privacy. And again, remember the victim is using the phone and when the phone is being called. Yet you do know that the numbers and certain information is being relayed to a cell phone provider. But what you don't realize most of us, and I didn't before this case, is mysel phone is sitting on my desk quiet, I'm not using it. It is, however,

silently communicating with cell phone towers. And now we know a pseudo fake cell phone towers that might be operated by the police, and information is being exchanged. I did look for some clips, George, I couldn't find any morning I'll find I'll find some yet I'm sure you will. Many state and local law enforcement agencies apparently signed agreements with the manufacture of the device to keep their use

of it secret. And some you know, senators even who were questioned, didn't know whether their state had had this was used for using these Should there be this shroud of secrecy around police use of these sting rays? The answer is no, and and and frankly, the cat as it were, is out of the bag here. Uh. For the last few years and previously when this was a big secret, it was mainly a secret that was perpetrated

by the FBI. By the way, the federal age and sees for the first ones to use this device, and they were sharing the technology with the local departments on the condition that the local departments do not disclose what they view as a key investigative tool. Um. And in fact, there was some criticism and some of the press and media about earlier courts the police departments not being forthcoming

with defense lawyers. UM. I think that's now gone. It's it's widespread knowledge that this stingray device is out there and that the state, local, federal agencies are using it. Frankly with significant currency. It is interesting now that d o J policy, however, requires a federal use uh federal law enforcement to obtain a warrant before they employed the sting ray to detect location of cell phones. George, how practically difficult is it for police to get a warrant?

It just based on the facts of the Jones case, it seems like they would have had a pretty good case to get a search warrant against against that phone. Great question, and the answer is, it's not difficult for the local authorities to obtain warrants, and one would and one does ask why they didn't go to the trouble of getting one in the Prince Jones case. Um, all the local authorities are set up. In fact, in many cases in most states, including California, a telephone warrant can

be obtained. We have a lot of judges, and certain judges get a duty they have to stand by at all hours of the day and night and be available to police to get these what we call expeditious warrants out, so they are available. And frankly, there was probably an insufficient reason in this case why the DC Metro Police did not attempt to obtain the warrant they certainly had sufficient cause or problem cause. George, we know the Supreme

Court is considering another cell phone issue. Tell us about that and whether any decision there would have an impact on warrants for sting rays A great question. Yes. The Supreme Court currently has before it in a case called the United States versus Carpenter, I very similar Fourth Amendment issue.

In Carpenter. What's being obtained without a warrant is what's called location data, the location of cell phone towers UM so that basically, with a court order or arguably with a subpoena, a law enforcement can go to your carrier and get not real time, but data that will show where what your general location was. And again the cell phone data there. It doesn't pinpoint what building you're in, but it will indicate what neighborhood or what cell phone

tower you are utilizing at any given time. There are many people, including our friends at the Civil Liberties Union American Civil Liberty Reunion, who believe that that also should require a fourth and a search warrant under the Fourth Amendment. The Supreme Court has scheduled I believe hearing for that case, very interesting case in October, but the difference there is it's not. First of all, it's not real time data, so it isn't data that going to indicate where you

are at the instant, and it's not specific enough. We're not dealing with the situation as we were in Prince Jones where the police are actually communicating in a sense electronically invading your cell phone. So the argument in Prince Jones or a fourth amend of violation I think is much stronger than in the Carpenter case. That will be heard by the Supreme Court very shortly, and I expect that we'll do a broadcast not at June absolutely. Uh.

Another question about the Supreme Court case. So, um, in that case, there's there's this federal law that probably most people haven't heard of, called the Stored Communications Act. Can can you tell us about that and to what extent that might give the government another argument for why why it might not need a warrant in that sort of case. Well, because Congress has, in fact, you're correct, it has acted

it's past this statute. The section to seven oh three of the Storage Communications Act provides a mechanism for the government to obtain this information from courts, and again on a showing less than probable cause. UM. So that's better because at least you have congressionally authorized activity. But the Fourth Amendment regulates acts of Congress as well as unilateral acts by the police. So the fact that Congress has okay this particular provision, it does not necessarily mean that

it comports with the Fourth Amendment. It's a strong argument in its favor, Harbor. So, George, they could appeal this to ask for an um. Actually, George, thank you so much for being on Bloomberg Law. As always on one of our favorite guest that's George Newhouse, a partner Denton's