The constitutional issues surrounding cell phones and due process continue to evolve. Stingrays are devices that track cellphones even when they are not in use. The devices emulate cell phone towers, thus prompting phones to connect to them, and thus revealing location information of the phones. Law enforcement has used these devices which can track someone’s location through their cell phone, even when the cell phone isn’t actually being used.
Recently, there has been a new development in this issue. A court has determined that before law enforcement can use a Stingray device, they must in fact obtain a warrant.
Warrants Were Not Being Used
There was some debate as to whether a warrant was necessary. Because Stingray devices only track location and do not actually record any data (conversations, emails, texts, etc), many prosecutors argued that a warrant is not necessary.
Prosecutors had been obtaining what is known as a “pen register order” from judges to use the Stingray, which requires less of a burden than obtaining a warrant. Because use of the Stingray was considered private and confidential as between the FBI and local law enforcement, many judges granting the use of the device, had no idea what the device was or how it was used.
Court Says Law Enforcement Needs a Warrant
But recently, a Maryland appeals court determined that evidence obtained using a Stingray device which was admitted in an attempted murder trial should have been excluded, as it violated the Defendant’s due process rights.
The Court found that there is a reasonable expectation of privacy in “real-time cellphone location information.” Obtaining a lower-standard “pen register” without disclosing to the court that the Stingray was being used, violated the Constitution, as it prevents a judge from evaluating the due process impacts of the relief requested by law enforcement.
Because of the State’s position that warrants were not required, some believe that many convictions obtained with the use of Stingray information may be at risk for being overturned.
Even though the U.S. Justice department had already required federal law enforcement agencies to obtain a warrant before using the device in September 2015, some believe that this may be the first appellate decision in the country to determine that warrantless location information gathering is unconstitutional.
Use Will Continue
It is important to remember that nothing makes the use of the Stingray devices illegal—the case only says the devices can not be used legally without a warrant. The State Attorney’s office now appears to agree that a warrant is reasonable in cases involving Stingray devices, and it is likely that in many cases, judges may grant warrants requested by law enforcement.
The technology does have the ability to find missing persons, locate dangerous, on the loose suspects, or provide crucial evidence in factually disputed criminal cases.
The constitutional rights of criminal defendants are always changing. Make sure your attorneys understand the current state of the law. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss representation from arrest to trial.