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Saturday, December 24, 2016

Ind. Decisions - Rehearing sought in 7th Circuit's 2-1 Nov. opinion denying a challenge to use of "stringray" evidence

The 7th Circuit decided USA v. Damian Patrick (ED Wis) on Nov. 23, 2016. The vote in the 23-page opinion was 2-1, with Chief Judge Wood's dissent beginning on p. 10. Judge Easterbrook, writes for the majority:

After Patrick filed his opening brief, the prosecutor revealed that Patrick’s location had been pinned down using data from a cell‐site simulator. That device (often called a Stingray, the trademark of one brand) pretends to be a cell‐phone access point and, by emit‐ ting an especially strong signal, induces nearby cell phones to connect and reveal their direction relative to the device. * * *

The United States has conceded for the purpose of this litigation that use of a cell‐site simulator is a search, so we need not tackle these questions. The parties join issue, how‐ ever, on the significance of the fact that police did not reveal to the state judge who issued the location‐tracking warrant that they planned to use a cell‐site simulator—indeed, im‐ plied that they planned to track him down using his phone company’s data. Patrick says that leaving the judge in the dark (perhaps misleading the judge by omitting a potentially material fact) makes the location‐tracking warrant invalid. This poses the question whether a judge is entitled to know how a warrant will be executed. * * *

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.

The Department of Justice announced last September that in the future it would ordinarily seek a warrant, plus an or‐ der under the pen‐register statute, 18 U.S.C. §3123, before using a cell‐site simulator, but it has not conceded that this is constitutionally required. Questions about whether use of a simulator is a search, if so whether a warrant authorizing this method is essential, and whether in a particular situa‐ tion a simulator is a reasonable means of executing a war‐ rant, have yet to be addressed by any United States court of appeals. We think it best to withhold full analysis until these issues control the outcome of a concrete case. AFFIRMED

[p. 10] WOOD, Chief Judge, dissenting. This case raises serious is‐ sues about the use of cell‐site simulators to track down the location of a target person. That is how police found Damian Patrick, for whom an arrest warrant had been issued for pa‐ role violations. My colleagues see no serious Fourth Amend‐ ment issues in Patrick’s case, because they believe that a de‐ fendant has no interest in the manner in which a warrant is executed. They also question whether the use of a cell‐site simulator is a “search” at all, noting that Smith v. Maryland, 442 U.S. 735 (1979), holds that the use of a pen register is not a “search,” and that United States v. Knotts, 460 U.S. 276 (1983), says the same thing about the use of a beeper. Finally, they note that Patrick was arrested in a “public place,” by which they mean sitting in the passenger seat of a parked car. All of this matters greatly to Patrick, because if his initial arrest was invalid, then the gun that the police spotted in plain view in the car should have been suppressed as “fruit of the poison‐ ous tree,” see Wong Sun v. United States, 371 U.S. 471, 488 (1963), and Patrick’s conviction under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for being a felon in possession of a firearm would need to be revisited. If the arrest complied with the Fourth Amendment, the gun was lawfully found and seized and his conviction must be affirmed. Because I believe that the panel opinion underestimates the relevant technology’s capa‐ bilities and extends Utah v. Strieff, 136 S. Ct. 2056 (2016), too far, I dissent.

This is the first court of appeals case to discuss the use of a cell‐site simulator, trade name “Stingray.” We know very little about the device, thanks mostly to the government’s re‐ fusal to divulge any information about it. Until recently, the government has gone so far as to dismiss cases and withdraw evidence rather than reveal that the technology was used. * * *

It is time for the Stingray to come out of the shadows, so that its use can be subject to the same kind of scrutiny as other mechanisms, such as thermal imaging devices, GPS trackers, pen registers, beepers, and the like. Its capabilities go far be‐ yond any of those, and cases such as Riley indicate that the Supreme Court might take a dim view of indiscriminate use of something that can read texts and emails, listen to conver‐ sations, and perhaps intercept other application data housed not just on the target’s phone, but also on those of countless innocent third parties. Governmental entities, including the Justice Department itself, see DOJ Policy Guidance, ante at 3– 4, and the State of Illinois, see Citizen Privacy Protection Act, Pub. Act 099‐0622 (2016) (delineating court order, disclosure, and minimization requirements for police use of cell‐site sim‐ ulators), have recognized the weighty Fourth Amendment concerns the device provokes. It is possible that discovery could reveal that none of those concerns is triggered in this case. But before we dismiss them, we should have all the facts before us. For that reason, I would remand this case for further fact‐finding. I respectfully dissent.

The Milwaukee Journal-Sentinel reports today in a long story that begins:
After a split ruling on police use of secret cellphone tracking technology, a Milwaukee man has asked the full U.S. 7th Circuit Court of Appeals to reconsider his case, the first on the issue to reach a federal appellate court.

"It is time for the Stingray to come out of the shadows, so that its use can be subject to the same kind of scrutiny as other mechanisms, such as thermal imaging devices, GPS trackers, pen registers, beepers, and the like," wrote Judge Diane Wood. "Its capabilities go far beyond any of those."

Wood wrote a dissenting opinion in a 2-1 November decision rejecting Damian Patrick's request that his case be sent back to a trial court to learn more about the role a Stingray — a brand of cell tower simulator — played in his arrest. Citing the growing concern about Stingrays, his attorneys this week petitioned for a rehearing by all nine judges of the 7th Circuit.

ILB: Here is a long list of ILB "stringray" posts.

Posted by Marcia Oddi on December 24, 2016 05:02 PM
Posted to Ind. (7th Cir.) Decisions