M.D.Fla.: CSLI information captured by Stingray would be unreasonable under 4A except defs had no standing in burner phones they disassociated themselves from

Use of a Stingray to capture defendants’ cell phone location information in real time was unreasonable under the Fourth Amendment [without much discussion], but the defendants lack standing to complain. The mere fact the government referred to the phones as the “defendants’” was insufficient in itself to confer standing. They still had to prove their connections to the phones and their reasonable expectation of privacy in them. They used burner phones not registered to anybody except one was listed to “LOL LOL,” and they disassociated themselves from the phones. United States v. Harris, 2016 U.S. Dist. LEXIS 102731 (M.D.Fla. July 25, 2016):

Here, I agree with the Defendants that law enforcement’s seizure of precise realtime location information by surreptitiously monitoring signals from the cell phones in this manner is a search subject to the proscriptions of the Fourth Amendment. Such is the express conclusion of the Florida Supreme Court and the conclusion suggested by the Supreme Court. See Tracey v. Florida, 152 So. 3d 504 (Fla. 2014); United States v. Jones, 132 S.Ct. 945, 181 L. Ed. 2d 911 (2012). As such, law enforcement should have obtained a search warrant issued upon probable cause. The Government concedes that the practice in this Court requires a warrant based upon probable cause for such searches and that the these pen/trap applications did not establish probable cause. Nonetheless, I conclude that the instant motion to suppress fails because the respective Defendants fail to establish their standing to challenge any Fourth Amendment violations.

. . .

Defendants here have asserted no claim to or interest in the cell phones at issue. The cell phones were not registered in Defendants’ names, and Defendants presented no evidence regarding their possession, use, or control of the phones. Instead, Defendants rely solely upon loose allegations in the pen/trap applications submitted by the Government, which suggested a link between the cell phones and Defendants in conclusory, unsupported fashion. In the circumstances and in the absence of contrary case law, I am obliged to conclude that they fail to establish standing to contest the searches at issue and the motions to suppress should be denied.

On this conclusion, I find it unnecessary to discuss in detail the Government’s alternative argument made at hearing that the Leon good-faith exception would apply in these circumstances. That is, the Government argues that despite the lack of warrant or showing of probable cause, the officers here acted in good faith upon orders issued by the state court such that the Leon good-faith exception applies.