Hey, DEA, get a stinking warrant to pinpoint a suspect's precise location via stingray cell phone surveillance devices; otherwise the search is unconstitutional. In fact, for the first time a federal judge threw out evidence obtained via the warrantless use of a stingray cell-site simulator, ruling that the search violated Fourth Amendment rights that guarantee people are secure in their homes from unreasonable searches and seizures.
No matter what you call a cell-site simulator – a Stingray, TriggerFish, Hailstorm – if the device is used without a warrant to pinpoint a suspect’s location, then that is an unreasonable search. US District Judge William Pauley said, “Absent a search warrant, the government may not turn a citizen's cell phone into a tracking device.”
Although the DEA had seized drugs and paraphernalia from Raymond Lambis’ apartment, the judge kicked the evidence to the curb since the DEA had used a stingray to locate his apartment. The portable device simulates a cellphone tower and phones are tricked into connecting to that fake tower.
DEA used stingray to scan for building and apartment location
During a 2015 investigation, the DEA had obtained a warrant for numbers dialed from a targeted phone and the cell tower locations to which it connected. The agency narrowed it down to an approximate location and then had a DEA technician “scan the streets surrounding Lambis’ apartment complex to identify the correct building and then scan each hallway of the building to identify Lambis’ apartment.”
After DEA agents knocked on the door, the suspect’s father let them in and allowed a search. The agents also obtained consent from the son, Raymond Lambis, to search his bedroom where they found narcotics. That made it all good in the DEA’s eyes, but the judge disagreed.
Judge Pauley wrote, “Here, the use of the cell-site simulator to obtain more precise information about the target phone's location was not contemplated by the original warrant application. If the government had wished to use a cell-site simulator, it could have obtained a warrant.” He added, “Because neither Lambis nor his father were aware of the DEA’s use of the cell-site simulator, the DEA could have taken their time in securing consent without much risk that Lambis would dispose of the contraband.”
Judge to DOJ: Without a third party, third party doctrine claim is bogus
The government argued that using the stingray to find the suspect’s apartment was fine under the third party doctrine, which basically claims people have no privacy regarding their data handed over to third-parties.
Yet the judge ruled, “For both pen register information and CSLI [cell site location information], the government ultimately obtains the information from the service provider who is keeping a record of the information. With the cell-site simulator, the government cuts out the middleman and obtains the information directly. Without a third party, the third party doctrine in inapplicable.”
Although a Maryland appeals court was the first state court to suppress evidence obtained via a stingray, Pauley’s ruling marked the first time a federal judge suppressed evidence obtained via a cell-site simulator.
Last year, the Justice Department announced a new policy requiring law enforcement to obtain a warrant supported by probable cause before using a stingray device; it was supposed to increase privacy protections. That change occurred one week after Lambis was charged; his attorney added that it’s unknown if the drug case against Lambis will be dismissed.
Feds on notice about warrantless cellphone tracking
ACLU attorney Nathan Freed Wessler said:
After decades of secret and warrantless use of Stingray technology by federal law enforcement to track phones, a federal court has finally held the authorities to account. The feds are now firmly on notice that when they hide their intent to use invasive surveillance technology from courts and fail to get a warrant, their evidence will be suppressed. This opinion strongly reinforces the strength of our constitutional privacy rights in the digital age.