That’s assuming the DA knows about the Stingray usage. That’s the big problem I have. Police are purposely hiding and misrepresenting usage, even when going to judges to get authorized for something like pen register, trap and trace. Now I’m certainly no legal expert, but from what I’ve been reading it seems like most judges would require the higher standard of a wiretap warrant if they knew that they were being asked to authorize Stingray usage and what the device actually did.
Call me crazy, but I also assumed that going to a judge for something like this required the police to be truthful rather than hiding what they were actually asking. I also assumed that police weren’t allowed to claim information from a Stingray was from a confidential informant or otherwise hide their methods from the defense (and prosecutor?). If these actions by the police are illegal, then I also assume the NDA that the FBI forces on police departments would also be unenforceable if tested in court.
I’d be happy if a lawyer, particularly a criminal lawyer, could come in this thread and try to clear some of these questions/assumptions up for me.
Being silently present on the side of people with weapons making threats is involved in the robbery. His presence is an implied threat.
If 4 guys approach me together in an alley and only one guy asks for my wallet and watch, I was not just mugged by a criminal acting on his own in the presence of three bystanders.
A unsuspecting non-criminal in that situation would turn to his acquaintances and say “Your’e robbing these guys? Fuck that, I’m not.” and walk away.
On the subject of the Stingray, I dismay at our increasing surveillance state and think that requirements for warrants and disclosure of evidence should be stricter than they are. And we should stop expanding the powers of law enforcement under the guise of preventing terrorism when we know that they’ll use those expanded powers for everything. If we decided as a society to let police intercept cell phone traffic with a warrant to catch drug dealers and muggers, that’s one thing. But that case is generally not made.
I wasn’t attempting to establish that the defendant was completely blameless in the events, I don’t have enough information about it. I was pointing out that the people who clearly were more at blame (the guys with the guns and who made the threats), received probation also.
If you’re actually interested, the ACLU and EFF filed Amici in a case called US v. Rigmaiden, which you can find by clicking here. It dealt with the use of a Stingray to track down a guy who used an aircard to swindle money from the IRS.
As to the amount of information the police need to give to the judge issuing the search warrant (and for the purposes of that case, the government conceded that they needed the warrant because the aircard was located in an apartment, probably because they actually had a warrant), the court stated:
“There is no legal requirement that a search warrant specify the precise manner in which the search is to be executed.”
"In United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005), the Tenth Circuit similarly explained that while a search warrant must describe with particularity the objects of the search, “the methodology used to find those objects need not be described: this court has never required warrants to contain a particularized computer search strategy.”
The court went on to state: “The Court concludes that the Tracking Warrant was sufficiently particular. It precisely identified the aircard to be located by description, telephone number, and ESN number. It stated that the aircard was to be located using a “mobile tracking device,” which, as noted above, reasonably describes the mobile equipment used to track signals from the aircard. Id. And it stated that FBI agents would be located in a public place while the aircard would be located in a private residence. Id. Although the warrant did not describe the precise means by which the mobile tracking device would operate, what signals it would send to the aircard, what signals it would capture, or the fact that it would cause some of Defendant’s electricity to be consumed in the process, these and the many other details of the device’s operation described in Defendant’s motion clearly concern the manner in which the search was to be executed, something that need not be stated with particularity in the warrant.”
The ACLU and EFF also argued that, since the Stingray captures other information from other cell phones also. The court said:
“Although it is true, as the ACLU emphasizes, that the application did not disclose that the mobile tracking device would capture signals from other cell phones and aircards in the area of Defendant’s apartment, the Court regards this as a detail of execution which need not be specified under Dalia. Significantly, the agents in this case did not seek to capture third-party cell phone and aircard information so they could use it in a criminal investigation, nor is there any evidence that they used the third-party information in that manner. To the contrary, the evidence presented by the government and Defendant shows that the third-party information was deleted from the mobile tracking device immediately after the aircard was located.”
If Rigmaiden remains good law, it appears the police need to inform an issuing judge they will be using a mobile tracking device, but they don’t have to go into the details of how it is used. As long as they delete any unrelated information gathered and get a warrant, it sounds like they’re operating within the law.
Haven’t looked, but both Ringmaiden and the Brooks decision on which it relies seem to be inconsistent with Kyllo v. United States (the thermal imaging case.) Searching the ether for cell signals is also poorly analogized to searching a computer.
Granted, Kyllo focused on whether a warrant was required at all, but I can’t think of any good reason why the court’s (frankly quite arbitrary) decision in that case would not also apply to the scope of a warrant search.
IIRC, didn’t Scalia draw a line at the door of the house in Kyllo? Wasn’t the issue that in Kyllo they were searching a house, not grabbing information from the ether? Maybe I misremember, but I don’t think Scalia’s ruling required warrants for the use of a thermal imager outside of finding information about what is going on in a particular house.
I also think that is why the police got a warrant in the Ringmaiden case. They knew the airboard was likely in a house or home, thus a warrant would be required. I’m not sure what they would say using the information if the cell phone wasn’t in a private residence.
Scalia also drew a line between stuff that is generally available to the public and technology that is really only available to law enforcement. I was focusing more on that.
I suppose it makes some sense to say that the cell signal is deserving of less protection because it’s floating out there, though.
But cell signals are encrypted, which (at least to a technical person) means they aren’t just “floating out there” and is part of the reason they need specialized hardware like Stingrays to intercept and decrypt the communications. It’s like claiming a house is just open space that anyone could see into when it actually requires something like thermal imaging.