Agents investigating an international drug-trafficking organization obtained warrants for pen register information and cell site location information (CSLI) for a target cell phone. Using CSLI, the agents were able to determine the general vicinity for the target cell phone, but the location was not sufficiently precise enough to identify the particular apartment building or apartment where the phone was being used.
The agents deployed a “StingRay” cell-site simulator device that mimics the cellular service provider signal to force the target cell phone to “ping” information about its precise location. A technician first identified the apartment building with the strongest ping. Then, the technician walked the halls of that building until he located the specific apartment where the signal was strongest. The agents did not have a warrant for the use of the StingRay device, believing that its use did not constitute a search.
In what may be the first court decision addressing whether the use of a cell-site simulator device is a search, the court ruled that the use of the device—absent a warrant—violates the Fourth Amendment. The court stated the “use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the ‘pings’ from Lambis’s cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator.” The court compared the search using the StingRay to the search using thermal imagery to “view” into a home in Kyllo v. United States (533 U.S. 27 (2001)). The StingRay allowed the agents to obtain information that would not otherwise be available without some “physical intrusion” into the target home.
Though this may be the first case addressing the question of whether a cell-site simulator device ping is a search, others are certain to follow. Courts must wrestle with emerging technology that essentially allows a person’s mobile phone to be unwittingly converted into a tracking device. Cases such as United States v. Jones (132 S. Ct. 945 (2012))—involving a GPS tracker on a car—and the many cases addressing the constitutional protections afforded to CSLI will be instructive. For now, investigators should tread carefully when using cell-site simulators and should consider consulting with prosecutors.
United States v. Lambis, No. 15-cr-734, (S.D.N.Y. July 12, 2016)
