US drug squads told to get a warrant before tracking mobile phones

NY District Court stings Stingrays and tosses out evidence

A US federal judge in New York State has pushed back against Uncle Sam's Drug Enforcement Agency's use of Stingrays, saying evidence collected by the fake phone masts isn't admissible.

A Maryland judge ruled in 2015 that investigators need court-approved warrants to set up pretend cellphone towers that track people by their mobiles. On Tuesday, US district court judge William Pauley III, sitting in New York, came to the same conclusion, declaring that the Stingray technology can't be used to subvert America's Fourth Amendment.

His judgment, here, draws parallels with other cases that have treated privacy-invasive technologies as “unreasonable search.” Past rulings on such matters have kiboshed heat detection through walls, for example, in the 15-year-old Kyllo case that began in 1992.

“Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device,” the judgment notes – adding adding that the Department of Justice seems to agree, since its internal policies now tell government agents to get a warrant before using such devices.

In the current case, the DEA used the cell site simulator to work out the location of a defendant, Raymond Lambis. In the following search of his apartment they found “narcotics and drug paraphernalia”, and it's that evidence that Lambis has now had suppressed in the case.

Citing the Kyllo decision, Judge Pauley writes that he does not wish to “leave the homeowner at the mercy of advancing technology”, and that if “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

In the current case, the decision finds that since “pings” from Lambi's phone needed specialised technology to receive – the cell site simulator – it amounted to unreasonable search.

The judge also slaps the DEA for simple laziness: previous requests for warrants for cell phone data (such as carrier data about calls made and tower locations) in the case had been granted by magistrates, which “suggests strongly that the Government could have obtained a warrant to use a cell-site simulator, if it had wished to do so”. ®

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