Court Rules That Warrantless Use of Stingray Device is Unlawful

During an investigation into an international drug-trafficking organization, the Drug Enforcement Administration (DEA) obtained a search warrant for cell site location information for one of the suspect’s cell phones. Although the cell site location information provided the general vicinity of the cell phone, it did not provide investigators with the specific apartment building or unit where the phone was located.

In order to gather more specific location information, the DEA had an investigator use a Stingray cell site simulator—a device that mimics the service provider’s cell tower. With the Stingray, the investigator could pinpoint the precise location of the cell phone by following the phone’s “pings” to the location where the signal was the strongest.

As a result, the investigator identified the defendant’s apartment, and DEA agents later obtained consent from the defendant to enter his apartment and search his bedroom. During the search, the agents recovered narcotics and drug paraphernalia.

In Kyllo v. United States, 533 U.S. 27 (2001), the United States Supreme Court held that “[w]here…the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

In this case, the District Court found that the warrantless use of the Stingray constituted an unreasonable search. The Court suppressed the evidence obtained from the defendant’s apartment because use of the cell site simulator required the issuance of a search warrant based upon probable cause.

The Court noted that the Government likely could have obtained a warrant to use the device with the same information it used to obtain the original search warrant, yet it failed to do so.

The Court also rejected the Government’s argument that the cell phone “pings” that were picked up by the cell site simulator were discoverable under the third party doctrine, which applies when a party voluntarily turns over information to third parties. Because cell phone users do not actively turn over location data to cell service providers, the Court found that this doctrine does not apply.

As a result of the agents’ failure to obtain a warrant prior to using the Stingray cell site simulator, the Court granted the defendant’s motion to suppress all of the evidence discovered during the search of his apartment.