Federal Judge Says Real-Time Cell Location Info -- Whether Obtained With A Stingray Or Not -- Requires The Use Of A Warrant

from the no-more-pen-register-orders dept

An interesting decision by a federal judge in Florida suggests this district, at least, may not be amenable to the warrantless use of Stingray devices… or any other method that harvests cell site location data in real time.

Although the defendants lost their motions to suppress due to a lack of standing, the judge had this to say about the acquisition of cell site location info in this case. (via FourthAmendment.com)

Here, I agree with the Defendants that law enforcement's seizure of precise realtime location information by surreptitiously monitoring signals from the cell phones in this manner is a search subject to the proscriptions of the Fourth Amendment. Such is the express conclusion of the Florida Supreme Court and the conclusion suggested by the Supreme Court. See Tracey v. Florida, 152 So.3d 504 (Fla. 2014); United States v. Jones, 132 S.Ct. 945 (2012). As such, law enforcement should have obtained a search warrant issued upon probable cause. The Government concedes that the practice in this Court requires a warrant based upon probable cause for such searches and that the these pen/trap applications did not establish probable cause.

Originally, the defense claimed police used a Stingray to track five burner phones used by the defendants. This seemed to be the most logical conclusion, considering how closely and immediately the location data was acquired. But the government responded that no cell site simulators were used to track the devices. Instead, another tool that has long been available to law enforcement was deployed -- a tool created explicitly for law enforcement use by the cell provider.

On July 21, 2016, the Court heard argument of counsel and took testimony from Detective Joseph Petta, the co-affiant on each of the applications at issue. In short, Detective Petta testified that law enforcement obtained pen/trap authorizations for the cell phone numbers at issue in order to obtain precise realtime location information that was used to track the whereabouts of these phones, to identify those associated with Defendants, and to identify locations of interests. He denies use of a Stingray or similar device, but acknowledges that he used a website offered to law enforcement by Sprint (the "L-site") to obtain such information. Such realtime information was available every fifteen minutes twenty-four hours a day. He further acknowledges that law enforcement used the realtime information to track the cellular phones, which they believed were used by this group. By his account, such applications were the usual way to obtain such realtime location information at the time these applications were submitted.

[...]

According to Detective Petta, the website allows law enforcement to log on and obtain realtime or contemporaneous and highly precise longitudinal and latitudinal information linked to GoogleMaps. A spreadsheet of all such location data is made available to law enforcement. Detective Petta testified that the pen/trap orders were not used for any other purpose than to obtain the realtime location of the cell phones.

The information returned from L-site queries is likely not as timely or precise as a roving Stingray but can achieve the same objectives. (An example of L-site data can be seen here.) Sprint has made this tool available for law enforcement to use since at least 2009, tracking roughly with the rise in Stingray use by police departments. The difference here is any law enforcement agency can obtain this data, which opens the market to those who don't have these devices yet or a warrant requirement they'd rather work around. Obviously, this also aids those deploying parallel construction to keep Stingray use hidden.

Either way, the court doesn't agree with the government's assertion that a pen register order is sufficient for obtaining real-time cell site location info. The order cites the Supreme Court's US v. Jones decision in support of its determination that real-time location tracking is a search and requires the use of a warrant -- something the original decision failed to state quite as explicitly. (It only found that placing a GPS device on a vehicle is a search under the Fourth Amendment. The issue of real-time location tracking remained mostly unaddressed.)

But while this order may alter law enforcement's tactics (and even the government admits it should have acquired a warrant in light of other Florida district decisions), it does nothing for the two defendants. An expectation of privacy in real-time location data doesn't help two defendants with a handful of burner phones they're reluctant to claim as their own. The absence of any link between the tracked phones and the defendants means they have no standing to challenge the search.

Defendants here have asserted no claim to or interest in the cell phones at issue. The cell phones were not registered in Defendants' names, and Defendants presented no evidence regarding their possession, use, or control of the phones. Instead, Defendants rely solely upon loose allegations in the pen/trap applications submitted by the Government, which suggested a link between the cell phones and Defendants in conclusory, unsupported fashion. In the circumstances and in the absence of contrary case law, I am obliged to conclude that they fail to establish standing to contest the searches at issue and the motions to suppress should be denied.

A lack of standing tends to be fatal to motions to suppress. But the disavowal of ownership does shift the burden of proof back on the government, which makes it a little harder to prove the burner phones actually belonged to the defendants found carrying them. The court notes the "loose allegations" contained in the pen register applications are "conclusory" and "unsupported," which seems to indicate the government has a few more hurdles to overcome before it can tie the defendants to the phones they're not willing to claim.

Filed Under: 4th amendment, csli, imsi catcher, location info, stingray, warrants


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  • identicon
    Anonymous Coward, 16 Aug 2016 @ 3:02pm

    In many ways the L site is worse than IMSI catchers, as it can be accessed remotely, and much more open to abuse, by passing credentials about. There is also the problem that it is a tempting target for all sorts of hackers.

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

  • icon
    Padpaw (profile), 16 Aug 2016 @ 5:23pm

    The fact this is even has to be declared means America has fallen far into the type of tyranny the people that created the country sought to escape from.

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

  • icon
    Uriel-238 (profile), 17 Aug 2016 @ 6:18am

    It would be nice to see a meta-ruling emerge from this...

    ...which limits how law enforcement and the Department of Justice can approach the use of new technologies, (e.g. No parallel construction. Only publicly known and approved means of detection are admissible in court.)

    If our police had any intention to actually detect culprits of known crimes, this would be a plausible approach (much like the assumption that the enemy knows your crypto, but not the operational key). But their intent has been for some time to bring down suspects regardless of their relationship to unsolved crimes, and often to pin crimes on innocent suspects through obfuscation and deception, rather than seek out a provable culprit.

    This is why the Gotham PD would be exemplary in the US as an honest precinct, rather than (as the Batman comics might suggest) a nexus of corruption and malicious practices.

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

  • identicon
    Anonymous Coward, 17 Aug 2016 @ 6:48am

    Wait, they were'nt getting one before

    Is what i would say if i were surprised

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

  • identicon
    who me?, 17 Aug 2016 @ 10:09am

    wandering wondering minds want ti know

    there are those among us who don't give a hoot for privacy. want to borrow my car? sure, go ahead... let me know if you lose it or ding it. want to use my computer? help yourself!

    here you go mister blue meanie. the car may have gone here or there, but it could have been anyone of my extended clan or their friends. same as for tthe computer and phones. they are for any and all to use, loke any other tool.

    adios, and have a nice day (but only if you want to)

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

  • identicon
    JB Smith, 20 Aug 2016 @ 8:19am

    rfid

    Virginia state police and newport news police have put rfid's on thousands of innocent citizens allowing them to listen in on intimate moments in their lives in the privacy of their home. These dirty cops have invited attorneys, family members, doctors, nurses, neighbors, friends, etc. into the privacy of innocent citizens homes videoing them while we shower, change clothes, etc. Virginia state police have a porn site of innocent citizens tagged bare naked justice. They are the largest group of organized crime in the nation. Senator Tim Kaine admitted it to me. So did Warner, Rigell, Forbes, Levin, McCain, Flake, Boxer, Feinstein, etc. It is not secret or classified. Virginia state police routinely violate the Constitutional rights of it's citizens. Check out forbes dot com to read about their casual disregard to the constitution. Check out CBS in Richmond to read about the medical examiners office covering up the murder of thousands of citizens so they could sell peoples brains to the NIH. We need to impeach our representatives for allowing this heinous atrocity.

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


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