Police Use of Surveillance Technology Without Warrants Prompts Court Challenges, Legislation

Police departments around the country are using a device known as a “stingray,” which allows them to track suspects by their cell phone signals. Stingrays have become a cause for concern for many people, not only because police are apparently using them to track specific individuals without obtaining a warrant, but also because many departments seem to be going to great lengths to keep information away from the public. This reportedly includes dismissal of charges merely to avoid disclosing details about stingray use. Numerous lawsuits are either challenging stingray use or seeking information under state open records laws. A judge in New York ordered police to produce stingray records, rejecting their arguments for keeping them secret. In Texas, a bill is currently pending in the Legislature that would require a warrant for stingray use.

Stingrays allow police to intercept cell phone communications by mimicking a cell phone tower. The phone automatically sends identifying information to the stingray, just as it would do to any cell tower. The telecommunications companies that operate the cell tower network have vast stores of data regarding cell phone locations. Courts are split on the question of whether police must have a warrant to obtain this data from cell tower operators. With stingray technology, police can track a suspect in real time, while data obtained from cell towers only provides location data after the fact.

A lawsuit brought under New York’s open records law has reportedly revealed a deal between the FBI and the Erie County Sheriff’s Office in New York, in which the FBI told the sheriff’s office to drop certain criminal cases rather than reveal stingray-related information. A New York judge described the deal in an order directing the sheriff’s office to produce such records. N.Y. Civil Liberties Union v. Erie Co. Sheriff’s Office, No. 2014/000206, judgment (N.Y. Sup. Ct., Erie Co., Mar. 17, 2015).

The judge noted that a “non-disclosure agreement” between the FBI and the sheriff’s office stressed the importance of not “disclosing the existence, the technological capabilities, or any use of the device to anyone.” Id. at 18. This included “seek[ing] dismissal of a criminal prosecution” at the FBI’s request “in lieu of making any possibly compromising public or even case-related revelations of any information concerning the cell site simulator or its use.” Id. at 18-19.

In Texas, Rep. Dwayne Bohac, R-Houston, introduced HB 3165, which would require a warrant for the use of a stingray, described in the bill as a “cell site simulator device.” The bill would amend provisions of the Code of Criminal Procedure to add such devices to the list of electronic surveillance and tracking devices that require a warrant. See Tex. Code Crim. P. Art. 18.21. It would also amend the statute that prohibits unlawful use of electronic tracking devices to include cell site simulators. Tex. Pen. Code. ยง 16.03. The bill is currently pending in the House Select Committee on Emerging Issues In Texas Law Enforcement.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

If you have been arrested or charged with an alleged criminal offense, you need the assistance of an experienced and knowledgeable criminal defense attorney. Michael J. Brown has fought for the rights of west Texas defendants in state and federal criminal cases for over 20 years. Contact us today online or at (432) 687-5157 to schedule a confidential consultation to discuss your case.

More Blog Posts:

Court Rules that State May Compel Fingerprint, but Not Passcode, Access to Cell Phone, Texas Criminal Lawyer Blog, January 8, 2015
Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches, Texas Criminal Lawyer Blog, October 30, 2014
Devices that Track Cell Phone Signals Violate Fourth Amendment, Say Privacy Advocates, Texas Criminal Lawyer Blog, February 28, 2013

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