No Need to Tell Judge about StingRay Use

By Ken Wallentine

Patrick failed to comply with his parole terms. Officers obtained an initial arrest warrant and a second warrant authorizing them to use cell phone data to locate Patrick. Officers used a “StingRay” to locate Patrick. When they found him, he was armed, so he was charged with a federal offense of possession of a weapon by a convicted felon.

The StingRay device mimics the cellular service provider signal to force the target cell phone to “ping” information about its precise location (see “Warrant Required for StingRay Cell-Site Simulator Device,” Xiphos July 2016). Patrick appealed his gun crime conviction, claiming that the StingRay was improperly used to locate him. He argued that the warrant was invalid because officers did not tell the judge about the device and how they planned to use it to locate him.

This appears to be the first federal appellate case involving the use of a StingRay or similar device to locate a suspect. In a 2-1 split decision, the court held that not revealing the intended use of the device did not make the warrant flawed. The court noted that the officers needed no warrant to arrest Patrick as a parole absconder, and they had, in fact, two warrants.

The court cited the recent U.S. Supreme Court decision in Utah v. Strieff (136 S.Ct. 2056 (2016)). Applying the Strieff holding, the court opined, “If the police had stopped Patrick’s car for no reason at all and learned only later that he was a wanted man, the gun would have been admissible in evidence. The officers who nabbed Patrick, by contrast, had both probable cause to believe that he was a fugitive from justice and knowledge of the arrest warrant. The gun cannot be less admissible than in Strieff, even if we knock out the means used to track his location.”

The court didn’t decide whether the use of a StingRay constitutes a search, saying that it would wait until that question would “control the outcome of a concrete case.” However, the majority held that officers were not required to disclose the intended use of the cell-site simulator to the judge issuing the warrant. In Richards v. Wisconsin (520 U.S. 385 (1997)), the Supreme Court held that judges are generally prohibited from dictating or limiting the means of executing a warrant. The sole dissenting judge observed that the StingRay has broad capabilities, including the ability to capture e-mails, text messages and images. The dissent urged that “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.”

United States v. Patrick, 2016 WL 6892507 (7th Cir. 2016)

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CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.

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