7th Circuit rejects appeal in Stingray case

After a split ruling on police use of secret cellphone tracking technology, a Milwaukee man has asked the full U.S. 7th Circuit Court of Appeals to reconsider his case, the first on the issue to reach a federal appellate court.

"It is time for the Stingray to come out of the shadows, so that its use can be subject to the same kind of scrutiny as other mechanisms, such as thermal imaging devices, GPS trackers, pen registers, beepers, and the like," wrote Judge Diane Wood. "Its capabilities go far beyond any of those."

Wood wrote a dissenting opinion in a 2-1 November decision rejecting Damian Patrick's request that his case be sent back to a trial court to learn more about the role a Stingray — a brand of cell tower simulator —  played in his arrest. Citing the growing concern about Stingrays, his attorneys this week petitioned for a rehearing by all nine judges of the 7th Circuit.

In 2013, Milwaukee police were looking for Patrick on a violation of probation. When they found him in a car, there was a gun on the floor and he was charged with being a felon in possession of a firearm.

Months later, during a hearing on his motion to suppress the evidence, police revealed they had found Patrick not based on a tip, as initially stated, but by using records from Sprint, his cellphone service provider. But it wasn't until he had entered a conditional guilty plea and appealed that his lawyers learned police had actually supplemented the Sprint data with a real-time Stingray trace.

Devices mimic cell towers

Stingrays are suitcase-sized devices that imitate a cellphone tower and draw signals from all nearby cellphones, not just the targeted number. It allows police to zero in on the phone's location, down to a specific apartment in a building. The phones don't have to be in operation, and some versions of the technology can even intercept content, like texts and calls, or pull information stored on the phones.

Originally developed for national security, Stingrays have become a powerful tool for local police who promise the FBI they won't acknowledge having Stingrays to anyone else, including judges who might ask what led to a defendant's arrest.

Civil libertarians contend that the use amounts to an unreasonable search and seizure.

The majority in Patrick's appeal concluded that since police had probable cause to arrest Patrick for his probation violation they didn't need a warrant. Since he was in a public place, he had no privacy interest in his location, Judge Frank Easterbrook wrote, joined by Judge Michael Kanne.

The majority agreed there may be constitutional questions about Stingrays but that Patrick's case isn't the right one to explore them. "We think it best to withhold full analysis until these issues control the outcome of a concrete case," it concluded. Such a case, for example, would be if the Stringray had acquired the information that became the probable cause for an arrest.

In her dissent, Wood says the majority stretches a different ruling too far to reach that conclusion.

The majority also notes that, under Department of Justice guidelines, Stingrays used by law enforcement are configured only to locate a phone, not intercept content.  Wood countered that there is no evidence Milwaukee police followed Department of Justice configuration guidelines and that a fuller evidentiary hearing sought by Patrick might reveal whether it did.

Other cases have raised the possibility that a Stingray should instead by treated like a GPS tracking device, the use of which has been ruled a search depending on low long it was used and how accurate.

Either way, in Patrick's case, prosecutors conceded that use of the Stingray was a search, but said it was warranted by a judge's grant of permission for police to get Patrick's phone records from Sprint. The majority said the issuing judge need not know precisely how the warrant will be executed. Rather, the court can decide after the fact if the search was reasonable and suppress evidence if it was not.

"A fugitive cannot be picky about how he is run to ground," the majority found.

Patrick's attorneys, along with the ACLU and the Electronic Frontier Foundation, a digital privacy rights group, say withholding information about Stingray use misleads judges considering search warrants. Without judicial oversight, they argue, police will be tempted to abuse the technology.

They contend the use of the Stingray is different in kind, not just degree, from the information supplied by a cell phone company.