Mimesis Law
22 January 2017

Seventh Circuit Approves Of Use Of Stingray With Warrant

December 9, 2016 (Fault Lines) – Forward-looking writer, George Orwell, could imagine a future where we were under surveillance all the time. Anyone who graduated high school is probably well aware of 1984. Even if you’re not, terms like Orwellian, crimethink, and Big Brother are probably words you’ve read a blogger or journalist use.

Good literature resounds through the ages; plus, referring to literature makes us feel like our college education was good for something. At least something other than delaying the onset of terminal adulthood.

In 1984, surveillance is a tool used by the government for control and oppression. It’s a bleak world no one would want to live in. In contrast, the setting of Brave New World appears cleaner and brighter. In the end, they both reveal themselves to be prisons, though the latter is more of a gilded cage. The loss of individuality, freedom, and the ability to be anonymous are just as real in both situations.

So, when writers compare the modern age to 1984, it often misses the mark. Certainly, the U.S. government has demonstrated a willingness to engage in methods that distantly ring of the horrors of 1984, but we voluntarily surrender the same and more information to companies like Facebook. No need for soma; my phone tells me there’s a social media update!

Turn on the GPS function to use the navigation feature. And it just happens that there is a store nearby that you should visit, rate, and buy from. It’s not quite to the level of Minority Report, but it is pretty close. Google gives me ads for Suboxone and criminal background checks, as if I were a freelance Sherlock Holmes with a law degree. Of course, Amazon is happy to make suggestions for things to purchase, based on your past purchase history.

We live in the soft despotism of information companies. This means it is often unnecessary for government agencies to create their own information gathering programs, although the NSA is certainly giving it a shot. Instead, the government can turn to social media or telecommunication companies and simply get information from them, such as GPS location data. It’s cost-effective, as it’s below cost for the government, and the customers pay the company to collect and keep that data. It’s like being fried in your own fat.

This system works pretty well for messaging, phone calls, social media posts, location information, and even license plate readers, and are usually run by private companies. But sometimes waiting for a suspect to voluntarily give up incriminating information just isn’t fast enough. So, law enforcement will sometimes use devices like a Stingray. This device mimics a cellphone tower, and induces nearby cellphones to connect to it, often by providing a stronger signal. Through this device, the government can determine the location of the phones connecting to them.

You may wonder, why use this device. Consider the case of Damian Patrick. He was on parole, violated the terms of his parole, an arrest warrant was issued, and could not be found. So, the Milwaukee police obtained a second warrant to track his location using a Stingray and Patrick’s phone. He was located in a parked car with a firearm. A federal conviction later, he asked the Seventh Circuit to hold that the search was invalid.

The inimitable Judge Frank Easterbrook wrote the opinion and had little trouble upholding the search. Patrick argued that his body was neither proceeds of a crime nor contraband, thus his body was not a proper subject of the warrant. Judge Easterbrook swatted it away without much concern, pointing out that a warrant was not necessary for an arrest. Then, Judge Easterbrook discussed Utah v. Strieff and the doctrine of good faith. In a nutshell, arrest + warrant = defendant loses. On top of it, the officers had probable cause to believe he committed a parole violation.

During the prosecution below, it was revealed that his location was discovered by using a Stingray-type device. No matter, Judge Easterbrook concluded. Mostly for the reasons mentioned above, but also because he suggests that this wasn’t really a search, thus no Fourth Amendment issues were present:

One potential question posed by use of a cell‐site simulator would be whether it is a “search” at all, or instead is covered by Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Knotts, 460 U.S. 276 (1983). The former holds that a pen register is not a search because it reveals the making of a call, and the number called, but not the call’s communicative content.

The latter holds that the use of a beeper is not a search, because it reveals a suspect’s location but nothing else. Recent decisions such as United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc), and United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), apply these principles to hold that tracking a person via data from phone companies is not a search within the scope of the Fourth Amendment. * * *

Police freely use databases, containing information such as the addresses associated with automobile license plates and persons licensed to drive, to track down suspects; they search trash for credit card receipts showing where he made purchases; they consult a suspect’s relatives and friends (and sometimes his enemies) to learn his whereabouts; no one thinks that those methods require a search warrant.

Criminal defense attorneys in the Seventh Circuit, you’re on notice. Judge Easterbrook is unlikely to find this to be a search. Under current jurisprudence, it seems about right. Of course, these sorts of conclusions are why there is vocal opposition to doctrines like third-party doctrine.

Now out of ammo, Patrick throws the gun at the Tyrannosaurus Rex. He argued that the gun should be suppressed because did not know how the warrant was to be executed when issuing the warrant. Patrick only succeeds in making good case law for the government (and getting Orin Kerr a sweet citation):

The Supreme Court stated in Dalia v. United States, 441 U.S. 238, 256 (1979), that neither constitutional text nor precedent suggests that “search warrants also must include a specification of the precise manner in which they are to be executed.” The manner of search is subject only to “later judicial review as to its reasonableness.” Id. at 258. And the Justices added in Richards v. Wisconsin, 520 U.S. 385 (1997), that courts cannot limit a warrant so as to foreclose a particular means of execution.

Judge Easterbrook goes on to point out that arguing that other people, who weren’t subject to warrant, had their Fourth Amendment rights violated doesn’t suffice, as Patrick cannot raise them in any event. Hanging on by a thread, the disarmed Patrick decided to shout—not much else left to do. He argued that the case should be remanded for a Franks hearing to see if this information would have changed the issuance of the warrant:

But for the reasons given earlier we conclude that the answers do not control this appeal. A person wanted on probable cause (and an arrest warrant) who is taken into custody in a public place, where he had no legitimate expectation of privacy, cannot complain about how the police learned his location.

Recall that the cell‐site simulator (unlike the GPS device in Jones) was not used to generate the probable cause for arrest; probable cause to arrest Patrick predated the effort to locate him. From his perspective, it is all the same whether a paid informant, a jilted lover, police with binoculars, a bartender, a member of a rival gang, a spy trailing his car after it left his driveway, the phone company’s cell towers, or a device pretending to be a cell tower, provided location information.

A fugitive cannot be picky about how he is run to ground. So it would be inappropriate to use the exclusionary rule, even if the police should have told the judge that they planned to use a cell‐site simulator to execute the location warrant.

Boom goes the dynamite.

Unless you’re part of the “I have nothing to hide” crowd, most people don’t like the idea of the government engaged in tracking them. And while some may still not like it even when the government gets a warrant first, that is the purpose of allowing search warrants, i.e. intruding into the privacy of a particular person suspected of committing a crime. Judge Easterbrook nailed it.

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  • Ben
    9 December 2016 at 11:57 am - Reply

    Two problems with this analysis:

    1.) Stingrays don’t just gather metadata. They can also intercept the contents of cell communication. Just because they (allegedly) didn’t do so in this case doesn’t eliminate that from being a large concern with sanctioning their use.

    2.) Stingrays aren’t targeted, they take over the cell signal of every device nearby. So this isn’t the same as getting a court order for a provider to turn over your location data. This is like getting the company to give you everyone’s location data in an entire area.

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