Who Is Listening from the Shadows? Revisited

December 26, 2016

By Keffer Hirschauer LLP

In April of 2015, Keffer Hirschauer LLP blogged about a secret surveillance tool known as a “Stingray.” http://www.kefferbarnhart.com/Blogs/2015/April/Who-is-Listening-Part-2-.aspx When it is activated, the device simulates a cell phone tower and compels a phone to register with it. The phone is not required to be in use for the machine to work, and the machine pulls information from the phone including telephone and serial numbers, calls, and texts. The firm wrote then that “there is little doubt that litigation will continue as this technology permeates the criminal justice system, and affects the rights of those accused in criminal matters.”

Stingrays are the approximate size of a suitcase and imitate a cellphone tower by drawing signals from all nearby cellphones, not just the targeted number. (Milwaukee Journal Sentinal, Bruce Velmetti, “7th Circuit Rejects Appeal in Stingray Case” December 23, 2016). The device allows police to zero in on the phone’s location, down to a specific location in a building. Id. The phones do not have to be in operation, and some versions of the technology can even intercept the content of the cell phone, like texts and calls, or pull information stored on those cell phones. Id.

In a split decision, the 7th Circuit recently addressed law enforcement’s use of a Stingray on a Milwaukee man in the decision of the United States of America v. Damien Patrick. http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D11-23/C:15-2443:J:Easterbrook:aut:T:fnOp:N:1868256:S:0. The majority of the court found that because police had probable cause to arrest the defendant for a probation violation, they did not need a warrant. It concluded that since the defendant was in a public place, he did not have a privacy interest in his location. While the majority acknowledged that there may be constitutional questions about stingrays, those questions should be saved for another day and another case.

However, Judge Diane Wood dissented and argued that “[i]t 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[.]” She continued and noted, “[i]ts capabilities go far beyond any of those.”

As Keffer Hirschauer LLP predicted some time ago, the Stingray has and will continue to impact law enforcement and our legal system. An experienced Indianapolis civil rights or criminal defense attorney can help you navigate through what appears to be a developing and unpredictable landscape in the law.

If you are facing criminal charges or believe your civil rights have been violated, contact the attorneys at Keffer Hirschauer LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law, and its application to their individualized case. Act now and contact us today at (317) 857-0160.