Post details: D.Ariz.: Govt's use of a stingray device with a tracking warrant to locate defendant’s aircard was not unreasonable

05/10/13

Permalink 06:43:56 am, by fourth, 1718 words, 1205 views   English (US)
Categories: General

D.Ariz.: Govt's use of a stingray device with a tracking warrant to locate defendant’s aircard was not unreasonable

The government’s use of a stingray device with a tracking warrant to locate defendant’s aircard was not unreasonable. United States v. Rigmaiden, 2013 U.S. Dist. LEXIS 65633 (D. Ariz. May 8, 2013), motion to reconsider denied 2013 U.S. Dist. LEXIS 121886 (D. Ariz. August 27, 2013):

[More:]

The Court accordingly will assume these facts to be true:

• The mobile tracking device used by the FBI to locate the aircard functions as a cell-site simulator. The device mimicked a Verizon Wireless cell tower and sent signals to, and received signals from, the aircard.
• The FBI used the device in multiple locations. The FBI analyzed signals exchanged between the mobile tracking device and the aircard. The FBI would take a reading, move to a new location, take another reading, move to another location, etc. The FBI never used more than a single piece of equipment at any given time.
• The device was used by government agents on foot within Defendant’s apartment complex.
• The device generated real time data during the tracking process.
• All data generated by the mobile tracking device and received from Verizon as part of the locating mission was destroyed shortly after Defendant’s arrest on August 3, 2008.
• The device used to simulate a Verizon cell tower is physically separate from the pen register trap and trace device used to collect information from Verizon.
• Signals sent by the mobile tracking device to the aircard are signals that would not have been sent to the aircard in the normal course of Verizon’s operation of its cell towers.
• The mobile tracking device caused a brief disruption in service to the aircard.
• During the tracking operation, the FBI placed telephone calls to the aircard.
• The tracking operation was a Fourth Amendment search and seizure.
• The government will rely solely on the Tracking Warrant to authorize the use of equipment to communicate directly with Defendant’s aircard and determine its location. The government will rely on a separate order (CR08-90331-MISC-RS) to justify obtaining cell-site and other non-content information from Verizon, but will base its defense of the use of the mobile tracking device solely on the Tracking Warrant.
• At the conclusion of the July 16, 2008, search efforts, the mobile tracking device had located the aircard precisely within Defendant’s apartment.

With these assumed facts in mind, the Court will turn to an analysis of arguments made by Defendant and the ACLU.

2. Probable Cause.

Defendant argues that the actions authorized by the Tracking Warrant “were not supported by an applicable finding of probable cause.” Doc. 824 at 301. As noted above, however, Judge Seeborg specifically found “probable cause to believe that the use and monitoring of a mobile tracking device for the [aircard] will lead to evidence of” several specific crimes and “to the identification of individuals who are engaged in the commission of these offenses.” Doc. 470-1 at 29.

To establish probable cause for a search warrant, the government need only show “a fair probability that contraband or evidence of a crime will be found.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The Court reviews Judge Seeborg’s probable cause finding with deference, asking only whether he had a “substantial basis” for the probable cause determination. Id. at 238-29 see also Ewing v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir. 2009) (issuance of a search warrant is upheld “if the issuing judge ‘had a substantial basis’ for concluding [that] probable cause existed based on the totality of the circumstances”); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir. 1995) (magistrate judge’s determination of probable cause is accorded significant deference).

Special Agent Ng’s affidavit supports Judge Seeborg’s probable cause determination. Doc. 470-1 at 10-17. The affidavit describes the fraudulent tax-refund scheme in detail (id., ¶¶ 3-21), how it was connected to the Hacker (referred to in the affidavit as the “Target Subject”) (id., ¶¶ 13-21), various confidential informant contacts with the Target Subject that confirmed his direct involvement in the fraudulent tax-refund scheme (id.), the Target Subject’s receipt of funds from the scheme (id., ¶¶ 22-30), and that the scheme and some of its fraudulent refund filings were connected to the aircard (referred to in the affidavit as the “Target Broadband Access Card/Cellular Telephone”) (id., ¶¶ 1, 34, 42). The affidavit clearly establishes a “fair probability” that locating the aircard would lead to evidence of a crime. Judge Seeborg’s probable cause finding satisfies the Fourth Amendment. See Dalia v. United States, 441 U.S. 238, 255 (1979).

Defendant disputes the language of the Tracking Warrant, arguing that Judge Seeborg’s probable cause finding applied only to information provided by Verizon and not to locating the aircard. But Judge Seeborg’s expressly found “probable cause to believe that the use and monitoring of a mobile tracking device for the [aircard]” would lead to evidence of various crimes. Doc. 470-1 at 29.

Defendant also argues that the phrase “mobile tracking device” describes a device attached to a vehicle and not the device used by agents to locate the aircard. The Court concludes, however, that “mobile tracking device” is a reasonable description of the mobile device used by the government to track the aircard. The Tracking Warrant authorized “the use and monitoring of a mobile tracking device for the Target Broadband Access Card/Cellular Telephone,” while “the agents are stationed in a public location and the Target Broadband Access Card/Cellular Telephone is ... inside private residences, garages, and/or other locations not open to the public or visual surveillance[.]” Id. at 28-29. The affidavit of Agent Ng stated that the mobile tracking device would monitor the aircard and would “ultimately generate a signal that fixes the geographic position of the [aircard].” Id. at 26.

These statements foreclose any possible confusion that the device was to be attached to a vehicle.

3. Particularity.

Defendant argues that the search exceeded the scope of the warrant because the warrant did not specifically authorize the FBI to use a cell-site simulator. He also argues that the warrant’s reference to a “mobile tracking device,” its description of the place to be searched, and its use of the phrase “all data, information, facilities, and technical assistance” lack particularity. The government counters that the warrant was not required to provide greater specificity concerning the methods by which the aircard was to be located.

There is no legal requirement that a search warrant specify the precise manner in which the search is to be executed. Dalia, 441 U.S. at 257; see Maryland v. Garrison, 480 U.S. 79, 84 (1987). “The Fourth Amendment ... does not set forth some general ‘particularity requirement.’ It specifies only two matters that must be ‘particularly describ[ed] in the warrant: ‘the place to be searched’ and ‘the persons or things to be seized.’” United States v. Grubbs, 547 U.S. 90, 97 (2006) (citing Dalia, 441 U.S. at 257).

Dalia involved a warrant that authorized the placement of a hidden listening device in the defendant’s office, but did not specify that the police would break into the office to install the device. 441 U.S. at 254-56. The Supreme Court rejected the particularity challenge, holding that authorization of the break-in was not necessary because nothing in the Fourth Amendment requires search warrants to “include a specification of the precise manner in which they are to be executed.” Id. at 257. The Supreme Court’s explanation applies to this case:

Nothing in the language of the Constitution or in this Court’s decisions interpreting that language suggests that ... search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant -- subject of course to the general Fourth Amendment protection “against unreasonable searches and seizures.”

[Dalia’s] view of the Warrant Clause parses too finely the interests protected by the Fourth Amendment. Often in executing a warrant the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter the suspect’s home in order to take him into custody, and they thereby impinge on both privacy and freedom of movement. Similarly, officers executing search warrants on occasion must damage property in order to perform their duty.

Id. at 257-58.

In United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005), the Tenth Circuit similarly explained that while a search warrant must describe with particularity the objects of the search, “the methodology used to find those objects need not be described: this court has never required warrants to contain a particularized computer search strategy.” See also United States v. Blake, No. 1:08-cr-0284-OWW, 2010 WL 702958, at *4 (E.D. Cal. Feb. 25, 2010) (“There is no legal requirement that a search warrant include a specification of the precise manner in which the search is to be executed.”).

The Court concludes that the Tracking Warrant was sufficiently particular. It precisely identified the aircard to be located by description, telephone number, and ESN number. Doc.470-1 at 28. It stated that the aircard was to be located using a “mobile tracking device,” which, as noted above, reasonably describes the mobile equipment used to track signals from the aircard. Id. And it stated that FBI agents would be located in a public place while the aircard would be located in a private residence. Id. Although the warrant did not describe the precise means by which the mobile tracking device would operate, what signals it would send to the aircard, what signals it would capture, or the fact that it would cause some of Defendant’s electricity to be consumed in the process, these and the many other details of the device’s operation described in Defendant’s motion clearly concern the manner in which the search was to be executed, something that need not be stated with particularity in the warrant. Dalia, 441 U.S. at 257-58; Grubbs, 547 U.S. at 97-98. The objective of the warrant -- locate the aircard -- was clearly stated, as was the use of a mobile tracking device to make the location. Defendant’s efforts to parse the warrant requirement further are no more persuasive here than were the defendants’ similar efforts in Dalia and Brooks.

See HuffPo: Stingray Cellphone Tracking Warrant In Daniel David Rigmaiden Case Was Proper, Judge Rules by Matt Sledge.

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