Thursday, December 1, 2016

Slip Sliding Away (Subtitle: Stingray ugh).

The information's unavailable to the mortal man
We're working our jobs, collect our pay
Believe we're gliding down the highway
When in fact we're slip slidin' away

Slip slidin' away
Slip slidin' away
You know the nearer your destination
The more you're slip slidin' away

Paul Simon, 1977

The 7th Circuit recently released an interesting opinion regarding the use of Stingray technology. In United States v. Patrick the 7th Circuit tackles "the first court of appeals case to discuss the use of a cell-site simulator."

The appeal is (of course) decided on other grounds but the court seems interested in giving some hints on the issue of how they might rule if they needed to. The majority doesn't seem too offended by the use of Stingray. The majority discusses the open question of whether the use of Stingray could be a search in the first place. The majority mentions two paths - pen register type view and GPS type view. They seem to be leaning towards the pen register category.

The majority also discusses that the current Fourth Amendment jurisprudence does not require "that search warrants also must include a specification of the precise manner in which they are to be executed."

The majority concludes that they don't have to reach the Stingray issue as the defendant had a warrant for his arrest, was wanted on probable cause, and was taken into custody in a public place. Therefore there was no expectation of privacy, and therefore mechanism of discovery is irrelevant.

There is a strong dissent written by Chief Judge Wood. It is worth a read. Judge Wood does not seem pleased in how the government has "purposefully concealed the Stingray's use from the issuing magistrate, the district court, defenese counsel, and even this court." Chief Judge Wood shows concern about the abilities of Stingray, labelling it is "much more than a high-tech pen register." Her opinion also mentions the information the court would need to make a decision on the technology, and the extent that the record is lacking due to the government's actions.

We should see more opinions coming down on these types of technology. As defense counsel, we hope to see more skeptical judges like the dissent here preventing our clients' Fourth Amendment rights from slip sliding away.

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