Florida Appeals Court Tells Law Enforcement It Needs Warrants To Deploy Stingrays

from the also-deployed:-parallel-construction dept

The Florida Court of Appeals has upheld a suppression order for evidence obtained through the use of a Stingray device. This decision draws the line between third-party info and info gathered directly by the government, even if the info collected was roughly the same. (h/t Cyrus Farivar)

In the course of investigating an armed robbery that led to the killing of one of the robbery victims, law enforcement sought assistance from the suspect's cell service provider, asking for cell site location info and the placement of a trap-and-trace on the cellphone itself. The following comes from the appeals court decision [PDF]:

A judge signed the “CSLI Order,” which required the service provider to disclose “all cell-site activations and sectors for all incoming and outgoing calls/communications . . . call detail location records, ‘angle from the tower’ data, including contemporaneous (real-time) with these communications, and historical calls/communications detail records.” The judge also signed an order requiring the service provider to install a pen register and trap and trace device on the Defendant’s phone and transmit the information collected to the Broward Sheriff’s Office (the “Trap and Trace Order”).

Later, the State applied for a search warrant of a Fort Lauderdale residence. The affidavit filed in support of the warrant stated that “[m]obile tracking was activated on [the Defendant’s] cell phone pursuant to a lawful court order” and that the Defendant’s phone was “placed specifically” at the residence and had been “stationary overnight within this residence for several concurrent nights.” The search warrant was granted.

Law enforcement testified the cell provider could only provide "tower information," rather than precise GPS location. To make up for this lack of specificity, investigators decided to fire up a Stingray to pinpoint the location of the suspect's phone. This extra step -- performed without a warrant -- ultimately resulted in the suppression of evidence by the trial court. The government appealed, citing the subpoenas and the Third Party Doctrine. The state appeals court disagrees.

Combining the ruling on cellphone searches (Riley) and the invasiveness of new technology (Kyllo) [along with the recent Carpenter decision], the court comes to this conclusion:

Together these cases hold that, without a warrant, the government cannot: use technology to view information not visible to the naked eye, attach a device to property to monitor your location, search a cell phone in your possession without a warrant, or obtain real-time location information from the cell carrier.

With a cell-site simulator, the government does more than obtain data held by a third party. The government surreptitiously intercepts a signal that the user intended to send to a carrier’s cell-site tower or independently pings a cell phone to determine its location. Not only that, a cell-site simulator also intercepts the data of other cell phones in the area, including the phones of people not being investigated.

If a warrant is required for the government to obtain historical cell-site information voluntarily maintained and in the possession of a third party, see Carpenter, 138 S. Ct. at 2221, we can discern no reason why a warrant would not be required for the more invasive use of a cell-site simulator.

The court also notes law enforcement -- in deploying a Stingray -- went far beyond what was actually authorized in the judicial orders it obtained.

The CSLI Order did not authorize the State to act independently. But the sergeant and the Defendant’s expert testified that the information maintained by the service provider could not identify the exact location of the Defendant’s phone. So the State resorted to other means. In other words, the CSLI Order authorized indirect government surveillance.

But the State could not obtain the information it required through the authorized means. So the State conducted direct government surveillance by using a cell-site simulator. And it did so without a warrant. Based on controlling Supreme Court authority, the court correctly suppressed the evidence obtained as a result of the State’s warrantless actions.

The end result is suppression of evidence gathered with the Stingray device. Since it was this device that pinpointed the location of the suspect's cellphone, the evidence obtained from the search of the residence the phone was located at is going to disappear as well. And that's evidence the government likely can't do without. It includes three guns, a mask, ammunition, and a stun gun -- all of which likely played a part in the armed robbery.

That this happened nearly five years ago makes little difference. It may have preceded the Carpenter ruling that created a privacy right for cell site location info, but the other Supreme Court precedent on cellphone searches and the use of invasive technology (like thermal imaging) to cross the threshold of people's homes without ever setting foot inside predates the warrantless Stingray deployment.

And a Stingray does exactly that: it forces phones -- wherever located -- to connect to it and give up location data and identifying info. It's something law enforcement can't obtain without electronic coercement and it's far more precise than the coarse location info it can obtain without a warrant from cellphone providers. Of course, the Carpenter decision changed the math on location info, so if law enforcement really wants to locate a phone, it's now better off seeking warrants for Stingray deployment than approaching third parties for the same data if it's looking for something more "real time."


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  • identicon
    Pixelation, 10 Sep 2018 @ 12:21pm

    Good to see the constitution being upheld on occasion. Too bad the police screwed the pooch on this one. Maybe they won't be so lazy in the future.

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

    • icon
      That One Guy (profile), 10 Sep 2018 @ 12:26pm

      Re:

      Sadly the fact that stories like this keep happening would seem to indicate that 'slow learners' would be a vast understatement when it comes to the police.

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

  • icon
    That One Guy (profile), 10 Sep 2018 @ 12:41pm

    Do it right or don't bother

    I'm honestly not sure which would be worse, that so many police are utterly incompetent and/or lazy that 'get a warrant' is seen as an insurmountable bar, far too high to reach, or that so many police are corrupt, and treat the law and legal requirements as entirely optional when it comes to their actions.

    It's not as though it's a difficult puzzle or anything. If your regular, non-badge wearing person couldn't conduct a given search because it would be illegal, get a warrant.

    If a search requires more than passive observation, get a warrant.

    If you're not sure if you need a warrant, talk to a judge, and if he/she says that yes, your proposed action is invasive and constitutes a search get a warrant.

    Sadly I suspect that, assuming it's not just laziness, the reason so many examples of this keep cropping up is because most of the time it works, with far too many(read: more than zero) judges willing to give police a pass because otherwise The Bad Guys will go free, and they consider that worst than those tasked with upholding the law blatantly ignoring it.

    Even when it doesn't however it's not like the police face any real penalty other than losing a case, so why wouldn't they ignore the law and stack the deck in their favor?

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

    • icon
      Zgaidin (profile), 10 Sep 2018 @ 1:52pm

      Re: Do it right or don't bother

      I suspect most of these events never even come before judicial review. The defendants enter a plea, and there's never even an opportunity for a judge to say no.

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

      • identicon
        Anonymous Coward, 10 Sep 2018 @ 5:41pm

        Re: Re: Do it right or don't bother

        In many cases though, the plea is a consequence of the unwillingness of the judges to suppress evidence. The defense attorney's job is to help their client. If the judge isn't likely to suppress the evidence, then attempting to go to trial and get it suppressed is counter to their job description.

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

  • icon
    Anonymous Anonymous Coward (profile), 10 Sep 2018 @ 1:01pm

    No easy outs, this time

    Don't know if it was asked for, but there doesn't appear to be any 'good faith exception' in this case. Nor is the idea of 'inevitable discovery' raising it's ugly head. Those are both great things.

    Once the cops got the pen registers granted and the cell site information, they should have been able to put eyes on the suspect. Why they didn't is left up to conjecture. TOG suggests laziness or incompetence. I am going to suggest some of both, plus arrogance. Law enforcement has become enamored with technology, and they should get over it. Yes it is useful, but the old techniques work, and have been proven in many many courts. Not all technology has.

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

  • identicon
    Anonymous Coward, 10 Sep 2018 @ 2:08pm

    This is one of those situations where there is no conceivable good outcome. If "the constitution is upheld", the ONLY DIRECT effect is that someone who we all know is absolutely certainly a criminal goes scot-free.

    There is a fond assumption in some quarters that there is an additional indirect effect, that police will be more likely to obey the law in the future. As the police who committed illegal actions go unpunished, this indirect effect can't be expected to be very probable. And since most of the people who believe that seem NOT to believe that actual punishment of recreational-drug-peddlers could result in changes in THEIR behavior, the whole indirect-effect notion isn't very plausible.

    Perhaps the best way forward is to (1) Punish the civilian criminal who got caught, as the law and equity require; (2) Punish the policeman who got caught committing illegal acts in pursuit of the first criminal; (3) Penalize the attorney general who was supposed to oversee this whole mess--perhaps by deducting x-many votes from his total in the next election.

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

    • icon
      That One Guy (profile), 10 Sep 2018 @ 7:00pm

      Re:

      Perhaps the best way forward is to (1) Punish the civilian criminal who got caught, as the law and equity require;

      On the contrary, the law demands that, as galling as it may be, they be let free because the police screwed up. Punishing them anyway would just result in yet another case where the law was violated by those tasked with upholding it yet the victim of that, even if they are likely guilty of other crimes, was still punished despite said violation, and sending the message yet again that it's okay to break the law... if you've got a badge.

      (2) Punish the policeman who got caught committing illegal acts in pursuit of the first criminal

      Actual punishments for stuff like this would go a long way to making it less likely to happen, yes, however courts mostly seem completely indifferent to holding police personally responsible, and any fine is pocket change if you don't have to pay it, which they almost never do.

      (3) Penalize the attorney general who was supposed to oversee this whole mess--perhaps by deducting x-many votes from his total in the next election.

      This is as bad if possibly worse than the first idea. Meddling with an election based upon past actions is a can of worms you do not want to open. Punish them with a fine or loss of employment if need be, but don't start fiddling with election numbers.

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

  • icon
    Uriel-238 (profile), 11 Sep 2018 @ 12:09pm

    Creating an IMSI-catch-resistant phone standard

    How difficult would it be to create and implement a phone-cell-tower system that changes the identity of the phone every time, say, the way that the EMV chip system obfuscates credit card numbers?

    Given that IMSI can be used by predators to track phone locations -- not just by law enforcement -- this seems like a technology that should be easy to sell to the public in this privacy-minded era, especially regarding business phones that might be targets for black-hats.

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

  • identicon
    Anonymous Coward, 11 Sep 2018 @ 11:30pm

    Warrants? For law enforcement?

    Well shit, out_of_the_blue isn't going to like this.

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


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