NY, Kings Co.: Use of a Stingray violates defendant’s REP in his cell phone

Use of a Stingray violates defendant’s reasonable expectation of privacy in his cell phone. It cannot be compared at all to a pen register. People v. Gordon, 2017 NY Slip Op 27364, 2017 N.Y. Misc. LEXIS 4285 (Kings Co. Nov. 3, 2017):

By its very nature, then, the use of a cell site simulator intrudes upon an individual’s reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case by the NYPD. See US v Lambis, Id., [“Thus, even though the DEA believed that the use of the cell site simulator would reveal the location of a phone associated with criminal activity, the Fourth Amendment requires the Government to obtain a warrant from a neutral magistrate to conduct that search.”]; State v Andrews, 227 Md. App.350 [Md. Ct. Spec. App. 2016] holding that the use of a cell site simulator requires a search warrant based on probable cause.]. Also see People v Weaver, supra.[“The installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported probable cause.”].

Therefore, the failure to obtain a proper eavesdropping warrant here prejudiced the defendant since the most useful-and needed information–i.e. his location–was procured from the unlimited use of the cell site simulator. As conceded by the People, the police here were only able to gather the needed location information when they began to track the defendant’s phone on or about April 12, 2016 with that enhanced technology and only then. The apprehension of the defendant was therefore accomplished only through the use of the improperly obtained information.