Seventh Circuit Calls for Openness About ‘Stingray’ Searches

CHICAGO (CN) – A divided Seventh Circuit panel declined to rule on whether use of a cell-site tracker, or “Stingray,” is a constitutional search, but Chief Judge Diane Wood said its time for the government to explain the device’s capabilities.

Damian Patrick was arrested while sitting in a parked car on a public street. He was found armed and prosecuted for being a felon in possession of a firearm.

The police found Patrick after obtaining a warrant based on his parole violation. The warrant authorized the police to locate Patrick using his cellphone.

Patrick challenged the constitutionality of the search in court based on the fact that police did not reveal to the state judge who issued the warrant that they planned to use a cell-site simulator, known as a Stingray after a common brand, to find him.

Instead, law enforcement misled the judge, knowingly or not, by implying that the police planned to contact the phone company to obtain his phone location information, Patrick argued.

Little is known about the Stingray device because the government has refused to divulge much information about it, even going so far as to dismiss cases rather than reveal the technology used.

The device pretends to be a cell-phone access point, causing nearby cell phones to connect and reveal their location relative to the device. It allows police to obtain location information in real-time rather than waiting for the phone company to respond to an information request.

It is unclear whether the device can intercept calls, text messages or emails, download pictures and contact lists, or intercept third-party app data.

However, the Seventh Circuit declined to rule on the matter Wednesday, finding that the constitutional question does not matter in Patrick’s case because police had cause to arrest him without a warrant of any kind due to his parole status.

“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,” Judge Frank Easterbrook said, writing for the panel’s 2-1 majority. (Parentheses in original.)

Easterbrook continued, “From [Patrick’s] 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.”

However, Chief Judge Diane Wood wrote a lengthy dissent, finding the case “raises serious issues about the use of cell-site simulators,” especially given that the court cannot evaluate the device’s intrusion into privacy when so little is known about it.

Noting that its surveillance capabilities possibly go far beyond that of a GPS tracker or pen register, Wood said, “It is time for the Stringray to come out of the shadows.”

“Even if the Stingray revealed no information beyond Patrick’s location, we must know how it works and how the government used it before we can judge whether it functions in a manner sufficiently different from the location-gathering methods specified in the warrant that it amounted to a search outside the warrant’s scope,” Wood wrote.