DC Appeals Court Rules Law Enforcement Cellsite Simulator Use Requires Search Warrant

Using a cellsite simulator without a warrant violated Fourth Amendment rights of a criminal, said the D.C. Court of Appeals last week. Judge Corinne Beckwith's opinion -- concurred in part by Judge Michael Farrell and dissented from by Judge Phyllis Thompson -- reversed Prince Jones' convictions, saying the evidence admitted at trial obtained from the unlawful search "was not harmless beyond a reasonable doubt." The Electronic Frontier Foundation blogged Thursday that the majority decision should be "yet another warning to law enforcement that new technologies do not mean investigators can bypass the Constitution." D.C. police used a cellsite simulator -- popularly known as a StingRay -- to find and arrest Jones at a parked car although it was unclear whether the device pinpointed the unique identifier of his cellphone or one he allegedly robbed from a victim. Jones sought to suppress the evidence, but the trial court denied his motion. "The trial court agreed with the government's argument that regardless of whether there had been a Fourth Amendment violation, the inevitable-discovery doctrine rendered the exclusionary rule inapplicable," wrote Beckwith, meaning police would have located Jones with the device using either Jones' or the victim's phone. Beckwith said a cellsite simulator can expose a cellphone user's "intimate personal information," can be used to track and, more importantly, locate a person, and can exploit a security vulnerability. Use "invaded a reasonable expectation of privacy and was thus a search," she said. Farrell said a recent case said government acquisition of cellsite location information from a provider isn't a search under the Fourth Amendment (see 1708140064 and 1706050006), but in this case, direct government surveillance of a cellphone is a search with a cellsite simulator that intercepts such location data. Thompson believes people have a reasonable expectation of privacy in location information like in their home, but this case didn't involve a home, no long-term tracking, no physical intrusion or trespass and no search of a cellphone. Neither DOJ nor the Public Defender Service commented Friday.