Privacy SOS

New York federal judge to DEA: If you want to use a stingray you’re going to need a warrant for that

Earlier this week, a New York federal judge became the nation’s first jurist to rule inadmissible evidence collected after Drug Enforcement Administration (DEA) officials used a stingray, or cell site simulator, to locate a drug suspect’s phone, and by extension the man himself, without a warrant. 

This ruling—along with a landmark Second Circuit Court of Appeals opinion handed down this week holding that US warrants do not extend overseas—is a bright spot in what’s otherwise been a bleak series of court decisions on privacy in the digital age.

Stingray spying: Yes, you’ll need a warrant for that, NY judge rules

In the New York case, district Judge William Pauley granted defendant Raymond Lambis’ motion to suppress narcotics evidence DEA officials found in his New York City apartment after they located Lambis using a stingray, also known as an IMSI catcher.

In 2015, the opinion states, the DEA obtained a warrant authorizing them to collect call records and historical location information from a cell phone company about a target phone. The cell site location information (CSLI) revealed the phone in question was somewhere in the vicinity of 177th street and Broadway in Washington Heights. But the information wasn’t precise enough to identify which apartment building the phone was inside, let alone which apartment. So the DEA sent an investigator out to Washington Heights, armed with a stingray. The stingray worked: it located the phone down to the apartment level. Later that night, DEA officials knocked at the apartment door and obtained consent from defendant Raymond Lambis’ father to enter. Lambis then gave the agents permission to search his room, where they found drugs and drug paraphernalia. Lambis’ attorneys later sought to suppress this evidence based on the fact that while DEA agents got a warrant to obtain records from his cell phone company, which led them to the neighborhood, they didn’t get a warrant to use the stingray to find his phone, which led to agents knocking on his apartment door and finding his drugs. 

The opinion primarily relies on the Supreme Court decision in Kyllo v. United States, where the court ruled law enforcement officials illegally used a thermal-imaging device to ‘see’ inside a private residence without a warrant. Following Kyllo, since the stingray enabled officials to discover something they wouldn’t have been able to otherwise know without entering the home, and because it is a technology not widely available to the public, the use of the stingray qualified as a search, Pauley held. And under the Fourth Amendment, searches require warrants. For that reason, even though officials had obtained a warrant to get less detailed location information about the cell phone, Pauley ruled that they should have gone back to court to get another warrant specifically to use the stingray.

It’s a fantastic ruling in defense of our privacy rights in the digital age; let’s hope the higher court upholds Judge Pauley’s decision if prosecutors appeal.

© 2018 ACLU of Massachusetts.