Law enforcement agents at the local, state, and federal levels have been using cell site simulators to obtain information in criminal investigations. The most common cell site simulator, and the one used by agencies like the Fort Worth Police Department and the Austin Police Department, is the Stingray.
The use of the Stingray device and other cell site simulators raises a number of Fourth Amendment concerns. First, whether the use of a Stingray device constitutes a search. Second, whether the police need a warrant or a pen register/trap and trace order to use these devices.
To understand how the cell site simulator can infringe upon a constitutional right, it is important to understand how it works.
A cell site simulator is a device that can deceive cell phones into believing the device is a cell phone tower, and by doing so can intercept the contents of text messages, web usage, and voice calls without ever blocking the transmission. Cell site simulators can also be used to intercept identifying information from a cell phone. These devices mimic cell phone towers, and as such can connect to a large number of devices simultaneously and indiscriminately. In fact, cell site simulators can force all wireless devices within the range of the device to provide identifying information. The Stingray is just one cell site simulator sold by a company called the Harris Corporation. Other models include the Kingfish, Hailstorm, and Triggerfish.
Cell phone simulators don’t just force mobile devices to provide identifying information, they force the devices to provide identifying information repeatedly while measuring the strength and direction of the return signal. By doing so, the cell phone simulator is causing the device to provide the government with information that would not have otherwise been transmitted to the government. Furthermore, the signal can be used to pinpoint a mobile devices location. Finally, data obtained by a cell site simulator is very different than historical information obtained through a search warrant to the cell phone provider.
The most important concern with the use of these devices is whether it infringes upon a constitutional right. If it does violate our Fourth Amendment rights, evidence obtained from a warrantless search using a cell site simulator would be excluded.
Stingrays and the Fourth Amendment
Under the Fourth Amendment, we have a right to be protected against unreasonable searches and seizures. This includes searches of our home, our person, and, as the Supreme Court pointed out, our cell phone. Riley v. California, 134 S. Ct. 2473 (2014). Where a search occurs, the government must obtain a warrant based upon probable cause unless an exception applies. U.S. Const. amend. IV. A search occurs when there is government action that is an alleged search of a thing or person in which a person has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 361 (1967). A Fourth Amendment violation results in the exclusion of all evidence obtained from the illegal search.
It is reasonable to conclude that using a device such as a cell site simulator to determine the location of a suspect and to retrieve information related to the suspect’s cell phone is an intrusion amounting to a search of an item—a mobile device—in which the suspect has a reasonable expectation of privacy.
These specialized electronic surveillance devices are not unlike the thermal imaging equipment described in Kyllo v. United States or the electronic tracker described in United States v. Karo.
In Karo, electronic monitoring inside a home was unconstitutional without a warrant. The Court provided that the monitoring led to the discovery of an important fact that would not otherwise be revealed without the electronic monitoring—that the item in which the device was attached was inside the home. United States v. Karo, 468 U.S. 705 (1984).
In Kyllo, the Supreme Court held that a warrant was necessary for the police to technologically invade the home. The Court explained that the use of a device not generally available to the public that resulted in information that could not otherwise be obtained without a warrant constituted a search under the Fourth Amendment. Kyllo v. United States, 533 U.S. 27 (2001).
The information that can be gathered using a cell site simulator makes it akin to an actual search of a cell phone. In 2014, the Supreme Court held that a warrant must be obtained for the search of a cellphone. Riley v. California, 134 S. Ct. 2473 (2014).
In Riley, the Court noted the similarities between a cell phone and a home in that cell phones today have the capability to store sensitive information that is normally found in a home. Depending on the police’s use of the device, it can access more information about a suspect than just his mere location. The cell site simulator can provide the following information: cell phone numbers; the incoming or outgoing status of calls made; numbers dialed; a unique subscriber number, the date, time, and duration of a call; and the location of the cell phone when a call is connected, and even the contents of a voice call or text message.
There is not a single published case in Texas addressing the use of cell phone simulators. Yet even the federal government has recognized the power of cell site simulators is so great that the Department of Justice unilaterally decided that a warrant must be obtained in all federal investigations using cell phone simulators. Questions are also being raised as to whether a cell site simulator can be used pursuant to even a search warrant or if those search warrant applications would be nothing more than the type of “general warrant” the Fourth Amendment was drafted to protect against. See Stanford v. Texas, 379 U.S. 476, 481-82 (1965).
If you are facing federal or state criminal charges based on electronic surveillance, cell phone tower data, or cell site simulator data, contact the criminal defense attorneys at Varghese Summersett PLLC immediately.
Call us at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will: