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NY Judge Ruled: Police Need A Warrant Stingray Device

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Stingray – Probable Cause

What Is A Stingray Device?
Stingray device is a cell phone simulator, which emits a signal that simulates a cell phone tower, in which a series of pings are sent.  It is these pings (signal strengths) that allow the device to calculate the location  ( See US v Lambis, 197 F. Supp 3d 606 [2016]).

Case Information
A Brooklyn, NY, Judge Martin Murphy, ruled that police (NYPD) need a warrant for a wireless eavesdropping device (Stingray III) to track a cell phone.  The DA wrote an application for a pen register/trap and trace authorization for the defendant’s cell phone number.

Pen Register or Trace Warrant
“A pen register or trap and trace warrant is authorized under New York’s CPL Art. 705.00. According to that Article, a pen register is a device that attaches to a landline phone to identify and record “the numbers dialed or otherwise transmitted” in outgoing and incoming calls.” CPL 705.00 (1). In addition, CPL 705.00 (2) defines a trap and trace as a similar device to that of the pen register that identifies the “originating number” for a call. It should be noted, however, that Article 705 does not authorize the gathering of location information using a cell phone’s Global Positioning system (GPS), nor does it authorize the gathering of additional information, that might include the content of a phone’s calls or text messages by the use of a pen register and/or trap and trace order. In this way, New York’s Law is different from federal law which recently has been expanded to include a broader definition of the terms regarding the use of pen register and/or trap and trace orders. See In re Application the US for an Order authorizing, 890 F. Supp 2d 747 [2012] [describing the expanded definitions of pen register and/or trap and trace orders in federal law”. (1)

“Thus, it is improper under New York Law to authorize the obtaining of any information from a suspect’s phone other that the phone numbers dialed or otherwise transmitted in outgoing and incoming calls and/or an originating phone number” (1).

“Moreover, a cell site simulator collects information directly from a target device, not from a third party service provider. Department of Justice Policy Guidance: Use of Cell Site Simulator Technology, Sept. 3, 2015. In addition, a cell site simulator collects more information than a cellular service provider’s records typically contain. Service providers collect and retain records of non-content information about the cellular service towers that a phone connects to when it sends or receives a call, known as “cell sites.” Such information, commonly called cell site location information or CSLI is sufficient to locate only the “general vicinity” of a cell phone, but-unlike the information obtained from a cell site simulator — CSLI is not precise enough to identify a specific address much less a particular apartment”. (1)

“Finally, unlike pen register device information or that provided by the CSLI, a cell site simulator device does not involve a third party. “The question of who is recording an individual’s information initially is key.” See US v Lambis, supra, citing In re US for Historical Cell Site Data, 724 F.3d 600 [5th Circ. 2013] [distinguishing between “whether it is the Government collecting the information or requiring a third party to collect or store it, or whether it is a third party, of its own accord and for its own purposes, recording the information”]. The Lambis court continued: “For both pen register information and CSLI, the Government ultimately obtains the information from the service provider who is keeping a record of the information. With the cell-site simulator, the Government cuts out the middleman and obtains the information directly.” US v Lambis, Id.” (1)

“By its very nature, then, the use of a cell site simulator intrudes upon an individual’s reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case by the NYPD. See US v Lambis, Id., [“Thus, even though the DEA believed that the use of the cell site simulator would reveal the location of a phone associated with criminal activity, the Fourth Amendment requires the Government to obtain a warrant from a neutral magistrate to conduct that search.”]; State v Andrews, 227 Md. [*4]App.350 [Md. Ct. Spec. App. 2016] [ holding that the use of a cell site simulator requires a search warrant based on probable cause.]. Also see People v Weaver, supra.[ ” The installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported by probable cause.”]”. (1)

“Following a review of the pertinent court file, the pertinent pen register documents, the submissions of the respective parties and the relevant case law, the defendant’s motion to controvert the pen register warrant and suppress the results of the lineup and any other fruits directly derived from defendant’s arrest is GRANTED”. (1)

 

Brooklyn, New York MARTIN P. MURPHY, A.J. S. C.

(1) People v Gordon, 2017 NY Slip Op 27364, NYS Law Reporting Bureau

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