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Federal Judge Keeps Fourth Amendment on Life-Support with Stingray Ruling

— July 14, 2016

A brief obstacle was placed in the way of the security state when a federal judge elected to suppress evidence gained by surveillance technology without a warrant.

U.S. District Judge William Pauley ruled in Manhattan on Tuesday that evidence of a defendant’s location by use of a stingray, a device that makes use of a person’s cell phone to find their whereabouts, was inadmissible without a warrant. The decision to suppress the evidence was based on a finding that U.S. Drug Enforcement Administration agents violated defendant Raymond Lambis’s fourth amendment rights against unreasonable searches and seizures when they used a stingray device to locate Lambis’s Washington Heights apartment and subsequently found him in possession of narcotics.

The stingray device functions by “tricking” a cell phone into responding the way it would to a cell phone tower. The signal the phone sends allows law enforcement to identify the phone’s location. This is the first federal case to suppress evidence obtained by use of a stingray, also known as a “cell-site stimulator.” In March, a Maryland court became the first state court to deny evidence dependent on the use of a stingray.

“Absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device,” wrote Judge Pauley.

ACLU attorney Nathan Freed Wessler was overly optimistic, however, in his assessment of the case, saying, “This opinion strongly reinforces the strength of our constitutional privacy rights in the digital age.” Judge Pauley’s ruling in the stingray case is the right one, and it will slow some of the government’s abuse of surveillance technology, but with stingrays in use by agencies in at least 24 states, the pressure will be on district attorneys will to find ways to broaden their use by law enforcement as much as possible. Also, any appeals process that tests the issue will take place under a Supreme Court that has established itself as particularly stingy where fourth amendment rights are concerned.

Just last month, the U.S. Supreme Court ruled in Utah v. Strieff that evidence obtained from illegal traffic stops is admissible in court if the officers found the evidence after discovering that the person stopped had an outstanding warrant for arrest.

The Strieff decision flies in the face of the sacrosanct “exclusionary rule,” which holds—or held—that evidence illegally obtained is “fruit of a poisoned tree” and therefore inadmissible. With Strieff, the fourth amendment to the Constitution is all but eviscerated, as Justice Sonia Sotomayor explained in her livid dissent:

“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time,” Sotomayor wrote. “It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

Your papers, please.

More than the judicial climate, though, threatens Americans’ privacy rights. After all, we live in a country where the government tracks our every digital move. That the information gathered and stored on us is not currently being used as evidence against us in court proceedings at the moment is beside the point. Our privacy is violated when our conduct is watched. And when the time comes that the government decides to locate and arrest a protest leader, a whistle-blower, a dissident journalist, there are already any number of legal mechanisms in place to facilitate the use of digital information. The FISA courts, for instance, where government requests for warrants are rubber-stamped. Or the Military Commissions Act, or section 1021 of the National Defense Authorization Act of 2012. The trap has been carefully constructed over the past decade and a half and only waits to be sprung.

The fourth amendment, along with the rest of the Bill of Rights, is on life-support, and while rulings like Judge Pauley’s are to be commended, we must not lose sight of the fact that at any moment the government can pull the plug. It is up to us to draw the attention of our neighbors to this situation and to work to bring our rights back to health.

Sources: “In first, U.S. judge throws out cell phone ‘stingray’ evidence” “Supreme Court Says Police May Use Evidence Found After Illegal Stops” Utah v. Strieff

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