DC Metro Police Gets Stung – “Stingrays” are Searches that Require Warrants

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The DC Court of Appeals delivered another victory to privacy advocates in what appears to be growing restrictions on law enforcement’s technical abilities to use your cell phone against you. In Jones v. United States, the Washington DC Metro Police Department’s use of a cell-tower simulator, referred to as “Stingrays,” violated Prince Jones’ Fourth Amendment right to be free from unreasonable searches.

Stingrays have been around for several years, but the exact technical abilities are kept largely secret. Primarily, they are portable devices that law enforcement can use to track a suspect’s GPS location in real time using their cell phone. If law enforcement obtains the special identification number of a suspect’s phone (which will ordinarily be provided by the cell phone provider following a government subpoena), the police can trick the suspect’s phone into giving away its location. After inputting the special identification number, the police will drive around the general area where they believe the suspect may be. If his phone is turned on, and the Stingray locates it, the Stingray will hijack the cell phone by tricking it into communicating with the Stingray instead of a normal cell tower.

In Jones, law enforcement was investigating two complaints of sexual assault and robbery. The suspect had communicated with two female escorts regarding their services and then forced the victims to commit sexual acts at knife point; then he robbed them of their phones. Police were able to identify a phone number used to communicate with both victims, and their subsequent investigation led them to Prince Jones. Initially, police tried to geolocate Jones through the cell phone provider using GPS associated with the cell towers. However, this tracking covered a wide area and could not pinpoint Jones’ location. Police then used their Stingray to locate Jones driving. They stopped his car and searched him, finding the phones belonging to the victims.

The “exclusionary rule” is a tool used by courts to deter unlawful police searches. Courts must balance the needs of law enforcement to obtain evidence against the privacy protections provided by the Fourth Amendment. There are several exceptions to the exclusionary rule, primarily rooted in situations where deterrence would not be achieved. Jones moved to exclude the phones, along with other evidence obtained at the scene, on the basis of an unlawful search. The government argued, and the trial court agreed, that even if the search was unlawful that the evidence would have “inevitably” been discovered, and thus the exclusionary rule shouldn’t apply. Under the inevitable discovery doctrine, evidence that would have been discovered through lawful process is not excluded because the underlying concept of deterrence is unnecessary. For example, if two police officers are investigating a crime and one unlawfully searches the suspect’s car, but unknown to that officer the other officer had obtained a search warrant for the car, the evidence found by the violating officer would have been discovered by the nonviolating officer executing the warrant. Such evidence would be “inevitably” discovered and should not be excluded.

The DC Court of Appeals disagreed with the government, stating that in this case Jones was only located because of the unlawful use of the Stingray, and the evidence they found in his car would not have “inevitably” been discovered but for the Stingray. The Court opined that cell phones are necessary devices that convey sensitive information. GPS location can reveal criminal activity, but it can also reveal lawful yet sensitive information such as where an individual goes to church, where they go to the doctor, if they have visited an attorney, or other information. The Court held that if officers are to use such powerful technology, they must first obtain a search warrant from a neutral judge.

The crime Jones is accused of is serious and it can be frustrating sometimes to see valuable evidence excluded. However, the exclusionary rule is a valuable deterrent to ensure law enforcement respects all citizens’ right to be free from unreasonable searches. Had law enforcement taken the small, and fairly easy, step of obtaining a search warrant authorizing the Stingray’s use, the evidence would not have been excluded. This protection ensures police will not go around spoofing cell phones without appropriate judicial oversight.

If you have been charged with a crime, the evidence used against you may have been obtained in an unlawful manner. It is important to know the limitations of the exclusionary rule. The attorneys at Barsotti & Manley, PLLC, will advise you of your Fourth Amendment rights and ensure your case is carried out in a lawful manner. Call us today!