The government\u2019s use of a stingray device with a tracking warrant to locate defendant\u2019s 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):<\/p>\n
<\/p>\n
The Court accordingly will assume these facts to be true:<\/p>\n
\u2022 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.
\n\u2022 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.
\n\u2022 The device was used by government agents on foot within Defendant\u2019s apartment complex.
\n\u2022 The device generated real time data during the tracking process.
\n\u2022 All data generated by the mobile tracking device and received from Verizon as part of the locating mission was destroyed shortly after Defendant\u2019s arrest on August 3, 2008.
\n\u2022 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.
\n\u2022 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\u2019s operation of its cell towers.
\n\u2022 The mobile tracking device caused a brief disruption in service to the aircard.
\n\u2022 During the tracking operation, the FBI placed telephone calls to the aircard.
\n\u2022 The tracking operation was a Fourth Amendment search and seizure.
\n\u2022 The government will rely solely on the Tracking Warrant to authorize the use of equipment to communicate directly with Defendant\u2019s 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.
\n\u2022 At the conclusion of the July 16, 2008, search efforts, the mobile tracking device had located the aircard precisely within Defendant\u2019s apartment. <\/p>\nWith these assumed facts in mind, the Court will turn to an analysis of arguments made by Defendant and the ACLU.<\/p>\n
2. Probable Cause.<\/p>\n
Defendant argues that the actions authorized by the Tracking Warrant \u201cwere not supported by an applicable finding of probable cause.\u201d Doc. 824 at 301. As noted above, however, Judge Seeborg specifically found \u201cprobable cause to believe that the use and monitoring of a mobile tracking device for the [aircard] will lead to evidence of\u201d several specific crimes and \u201cto the identification of individuals who are engaged in the commission of these offenses.\u201d Doc. 470-1 at 29.<\/p>\n
To establish probable cause for a search warrant, the government need only show \u201ca fair probability that contraband or evidence of a crime will be found.\u201d Illinois v. Gates, 462 U.S. 213, 238 (1983). The Court reviews Judge Seeborg\u2019s probable cause finding with deference, asking only whether he had a \u201csubstantial basis\u201d 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 \u201cif the issuing judge \u2018had a substantial basis\u2019 for concluding [that] probable cause existed based on the totality of the circumstances\u201d); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir. 1995) (magistrate judge\u2019s determination of probable cause is accorded significant deference).<\/p>\n
Special Agent Ng\u2019s affidavit supports Judge Seeborg\u2019s probable cause determination. Doc. 470-1 at 10-17. The affidavit describes the fraudulent tax-refund scheme in detail (id., \u00b6\u00b6 3-21), how it was connected to the Hacker (referred to in the affidavit as the \u201cTarget Subject\u201d) (id., \u00b6\u00b6 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\u2019s receipt of funds from the scheme (id., \u00b6\u00b6 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 \u201cTarget Broadband Access Card\/Cellular Telephone\u201d) (id., \u00b6\u00b6 1, 34, 42). The affidavit clearly establishes a \u201cfair probability\u201d that locating the aircard would lead to evidence of a crime. Judge Seeborg\u2019s probable cause finding satisfies the Fourth Amendment. See Dalia v. United States<\/a>, 441 U.S. 238, 255 (1979). <\/p>\n
Defendant disputes the language of the Tracking Warrant, arguing that Judge Seeborg\u2019s probable cause finding applied only to information provided by Verizon and not to locating the aircard. But Judge Seeborg\u2019s expressly found \u201cprobable cause to believe that the use and monitoring of a mobile tracking device for the [aircard]\u201d would lead to evidence of various crimes. Doc. 470-1 at 29.<\/p>\n
Defendant also argues that the phrase \u201cmobile tracking device\u201d describes a device attached to a vehicle and not the device used by agents to locate the aircard. The Court concludes, however, that \u201cmobile tracking device\u201d is a reasonable description of the mobile device used by the government to track the aircard. The Tracking Warrant authorized \u201cthe use and monitoring of a mobile tracking device for the Target Broadband Access Card\/Cellular Telephone,\u201d while \u201cthe 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[.]\u201d Id. at 28-29. The affidavit of Agent Ng stated that the mobile tracking device would monitor the aircard and would \u201cultimately generate a signal that fixes the geographic position of the [aircard].\u201d Id. at 26. <\/p>\n
These statements foreclose any possible confusion that the device was to be attached to a vehicle.<\/p>\n
3. Particularity.<\/p>\n
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\u2019s reference to a \u201cmobile tracking device,\u201d its description of the place to be searched, and its use of the phrase \u201call data, information, facilities, and technical assistance\u201d 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.<\/p>\n
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). \u201cThe Fourth Amendment … does not set forth some general \u2018particularity requirement.\u2019 It specifies only two matters that must be \u2018particularly describ[ed] in the warrant: \u2018the place to be searched\u2019 and \u2018the persons or things to be seized.\u2019\u201d United States v. Grubbs, 547 U.S. 90, 97 (2006) (citing Dalia, 441 U.S. at 257).<\/p>\n
Dalia involved a warrant that authorized the placement of a hidden listening device in the defendant\u2019s 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 \u201cinclude a specification of the precise manner in which they are to be executed.\u201d Id. at 257. The Supreme Court\u2019s explanation applies to this case:<\/p>\n
Nothing in the language of the Constitution or in this Court\u2019s 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 \u201cagainst unreasonable searches and seizures.\u201d <\/p>\n
[Dalia\u2019s] 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\u2019s 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.<\/p><\/blockquote>\n
Id. at 257-58. <\/p>\n
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, \u201cthe methodology used to find those objects need not be described: this court has never required warrants to contain a particularized computer search strategy.\u201d See also United States v. Blake, No. 1:08-cr-0284-OWW, 2010 WL 702958, at *4 (E.D. Cal. Feb. 25, 2010) (\u201cThere is no legal requirement that a search warrant include a specification of the precise manner in which the search is to be executed.\u201d).<\/p>\n
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 \u201cmobile tracking device,\u201d 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\u2019s electricity to be consumed in the process, these and the many other details of the device\u2019s operation described in Defendant\u2019s 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\u2019s efforts to parse the warrant requirement further are no more persuasive here than were the defendants\u2019 similar efforts in Dalia and Brooks.<\/p><\/blockquote>\n
See HuffPo: Stingray Cellphone Tracking Warrant In Daniel David Rigmaiden Case Was Proper, Judge Rules<\/a> by Matt Sledge.<\/p>\n","protected":false},"excerpt":{"rendered":"
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