25 January 2016

You Have Gotta be F%$#ing Kidding Me………

In the latest episode of "Welcome to a Police State", prosecutors are arguing that they don't need a warrant to use a Stingray to track people by their cell phone data because ……… Google Maps:
Up in Baltimore, where law enforcement Stingray device use hit critical mass faster and more furiously than anywhere else in the country (to date...) with the exposure of 4,300 deployments in seven years, the government is still arguing there's no reason to bring search warrants into this.

The state's Attorney General apparently would like the Baltimore PD's use of pen register orders to remain standard operating procedure. According to a brief filed in a criminal case relying on the warrantless deployment of an IMSI catcher (in this case a Hailstorm), the state believes there's no reason for police to seek a warrant because everyone "knows" cell phones generate data when they're turned on or in use. (h/t Brad Heath of USA Today)
The whereabouts of a cellular telephone are not "withdrawn from public view" until it is turned off, or its SIM card removed. Anyone who has ever used a smartphone is aware that the phone broadcasts its position on the map, leading to, for example, search results and advertising tailored for the user's location, or to a "ride-sharing" car appearing at one's address. And certainly anyone who has ever used any sort of cellular telephone knows that it must be in contact with an outside cell tower to function.
The state's brief folds in parts of the Third Party Doctrine and the Supreme Court's 1979 Smith v. Maryland decision to make a truly terrible argument that because certain aspects of cell phones involuntarily create location data, the Fourth Amendment never comes into play.

Matt Blaze rephrases the state's argument slightly, exposing the ridiculousness of this assertion.
The state follows this up by arguing that, because the use of a pen register order to deploy an IMSI catcher is not expressly forbidden by local statutes, the evidence shouldn't be suppressed.


All well and good, except that the only reason there was no statute in place is because local law enforcement spent years keeping its cell phone tracking devices hidden from judges and defendants, obscuring the technology through parallel construction and misleading pen register order requests. This case is no different than the hundreds preceding it. The magistrate judge signing the pen register order had no idea what the Baltimore PD was actually doing. The presiding judge in this prosecution declared the Baltimore PD's pen register request contained "material misrepresentations" on his way towards granting the suppression of evidence.
This is why we need the exclusionary rule.

Lazy cops and lazy prosecutors are a threat to our civil liberties.

It takes very little to get a warrant from a judge, and for these guys, it's too much.


Stephen Montsaroff said...

This is a typical argument on this front. The legal question is refered to as a expectation of privacy. For example, you don't (according the SCOTUS) have such for your garbage, but do for the heat radiating from your house.

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