D.C. Court of Appeals Rules Warrantless Use of Stingray Device Constitutes Unlawful Search and Reverses Defendant’s Convictions
by Richard Resch
In September 21, 2017, the District of Columbia Court of Appeals, the highest court in D.C., ruled that the warrantless use of a cell-site simulator (the generic term for all such devices regardless of the manufacturer or model is “stingrays”) constitutes an illegal search in violation of the Fourth Amendment, and any evidence obtained through its use should have been excluded from evidence. Accordingly, the Court overturned the defendant’s convictions.
In October 2013, two women were sexually assaulted at knifepoint and robbed of their cell phones. Investigators discovered that both victims had received calls from the same telephone number. Investigators tracked a phone in the suspect’s possession through the use of a stingray, but police did not obtain a warrant prior to utilizing the device. By tracking one of the target phones, the stingray led police to the car in which the suspect, Prince Jones, was sitting. Police arrested him and recovered evidence from him and the vehicle. Jones also made an incriminating statement to investigators.
Much of the evidence used against Jones at trial was collected through the use of the stingray. Jones presented a pretrial motion to suppress, arguing that such evidence was the direct or indirect product of a warrantless search and thus unlawfully obtained in violation of the Fourth Amendment. The trial court rejected his motion based on the Inevitable-Discovery doctrine and never reached the question of the constitutionality of the warrantless use of the stingray.
Jones was convicted of two counts of first-degree sexual abuse while armed, two counts of kidnapping while armed, four counts of robbery while armed, and one count of threats. He appealed his convictions, renewing his constitutional challenge to the evidence obtained via the stingray.
As with any Fourth Amendment analysis of this type, the appellate court first addressed the question of whether use of the stingray constituted a search. It concluded that it did based on the expectation of privacy rationale articulated in Katz v. United States, 389 U.S. 347 (1967), and its progeny.
First, the use of a stingray “has the substantial potential to expose the [phone] owner’s intimate personal information” and “can easily invade the right to privacy in one’s home or other private areas.” Next, the Court characterized a stingray as “a locating, not merely a tracking, device….” It allows police to identify a person’s exact location remotely and at will. The Court reasoned that a stingray’s ability to precisely locate a person whose whereabouts were completely unknown distinguishes it from tracking devices that merely enable police to do the same task they could do through visual surveillance. Finally, the appellate court objected to the fact that stingrays exploit a security vulnerability in cell phones, and the only true countermeasure is to turn them off.
Based on the foregoing rationale, the Court concluded that use of the stingray “invaded a reasonable expectation of privacy and was thus a search.” It then turned to the issue of whether the unlawfully obtained evidence should be excluded under the Exclusionary Rule and concluded it should. The Court rejected the government’s Inevitable Discovery argument, noting that while the evidence could have been obtained through lawful means, there is nothing in the record to support a determination that police would have done so—“which is what the inevitable-discovery doctrine requires.” Consequently, the District of Columbia Court of Appeals reversed the trial court’s judgment and remanded the case for further proceedings consistent with its opinion. See: Jones v. United States, 168 A.3d 703 (D.C. 2017).
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