News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Warrants May Not Be Enough to Make Stingrays Lawful Under the Fourth Amendment

As I discussed in my last post, the U.S. Department of Justice recently published a new policy that generally requires federal law enforcement agencies to obtain a search warrant before using a cell-site simulator device, otherwise known as a stingray. But the policy itself does not create grounds for someone to bring a lawsuit for improper use of a cell-site simulator. People will have to look to the courts, and to the protections against unreasonable search and seizure offered by the Fourth Amendment and by individual state constitutions. While warrantless use of cell-site simulators likely violates the Fourth Amendment, it may be that even warrant-based searches inherently violate our constitutional Fourth Amendment right against unlawful searches because such warrants are, necessarily, general warrants that have long been prohibited.

The Fourth Amendment protects people from unreasonable searches and seizures. Typically, a person’s body, home, and belongings cannot be searched unless the government has first obtained a warrant from the court. The warrant has to be supported by probable cause—in other words, a particular and reasonable basis for believing that a crime was committed, and that a search will turn up evidence of that crime. Of course, Fourth Amendment protections are more complicated than that. For one thing, a person can be subject to a brief seizure and search if a law enforcement officer has “reasonable suspicion” that the person has or is about to commit a crime, or that the person has a weapon on them or in their vehicle. For another thing, law enforcement can use the “exigent circumstances” exception to conduct a search without a warrant, when they think they will not have time to get one. In practice, these exceptions can be abused, sometimes systematically and discriminatorily, by law enforcement (my colleague has discussed this here; the report on stop and frisk practices in Massachusetts, published by ACLU Massachusetts, provides additional insight into the issue). But the Fourth Amendment—and similar rights afforded by state constitutions—continues to be a valuable protection against unreasonable searches and seizures.

The Fourth Amendment also has another important requirement. To be lawful, the warrant must be specific: it has to describe the place to be searched, and the person or thing to be seized. A warrant that fails to do both is a “general warrant.”  It is the responsibility of both the courts and law enforcement to respect the prohibition against general warrants. Courts should reject applications for warrants that are too vague, not particular, or broad. Where a warrant fails to give enough particular information about the place to be searched or the thing to be seized, law enforcement are not allowed to rely on it to carry out a search.

The prohibition against general warrants is rooted in United States history. As Justice Stewart recounted in Stanford v. State of Texas, 379 U.S. 476 (1965), drafters of the Constitution were all too familiar with general warrants that gave British officials blanket authority to search imported goods, and sought to prohibit general warrants in the Constitution. The petitioner in Stanford challenged a warrant that authorized the seizure of all books and records of the Communist Party from the petitioner’s home, which led law enforcement to conduct a 5 hour search and seize more than 2,000 books, pamphlets, and personal papers. The Supreme Court, in a scathing decision, explained that the search was unconstitutional because it was the result of an unlawful “general warrant.” Justice Stewart wrote that “[t]he indiscriminate sweep of that language is constitutionally intolerable. To hold otherwise would be false to the terms of the Fourth Amendment, false to its meaning, and false to its history.”

Justice Stewart also was worried about the effect the search might have on the First Amendment, and about the unfettered power it gave to law enforcement. The law enforcement officers were searching for books, pamphlets, and personal documents that contained speech that Texas outlawed (speech about the Communist Party)—and ending up seizing documents that had nothing to do with Communism. To Justice Stewart, this proved that specificity protects more than one of our basic civil rights. “The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case.” General warrants gave law enforcement far too much power to decide what can be searched and seized, which in turn made it easy to abuse the warrant—which in turn violated the petitioner’s First and Fourth Amendment rights.

It is not clear that cell-site simulators can be, or will be, used in a way that satisfies the Fourth Amendment’s specificity requirement. Even if it is particular about what information it wants to obtain from the target of the search, the warrant cannot be particular about what information the cell-site simulator necessarily will be collecting from everyone else in the vicinity. It will be collecting data from potentially hundreds of bystanders, none of whom will be identified in a warrant application. Moreover, the portability of the devices might make it technologically simple for law enforcement to follow targets with an active cell-site simulator, but not necessarily constitutional for them to do so.

In turn, this may have repercussions on the public’s ability to safely exercise their First Amendment rights. Widespread use of cell-site simulators may well chill a person’s freedom to peacefully assemble when doing so might make them vulnerable to data collection, based on a warrant tied to someone else in the crowd. In addition, many people carry on their cellular phones exactly what was at stake in Stanford: libraries of books; personal documents; plus internet browsing history, text messages, and years’ worth of emails, notes, and photographs. Cell-site simulators can be used to capture content from the target of a warrant and from the people standing in his vicinity—and the technology is improving rapidly. Right now, the U.S. Department of Justice has said that it will limit the type of data that its stingrays collect. But state and local law enforcement have not made similar promises. And as Justice Stewart pointed out, the Fourth Amendment intentionally does not leave the decision about what should be searched and seized solely in the hands of law enforcement. The Fourth Amendment’s prohibition against general warrants is a necessary component of the amendment, and should not be undermined merely because we have the technological capabilities of doing so.

While there likely are good constitutional challenges to the use of cell-site simulators, there also are obstacles to raising these challenges. The first big challenge is that use of these devices has been shrouded in secrecy. Local and state law enforcement have been averse to acknowledging that they possess or use cell-site simulators, in part because of gag orders placed on them by the federal agencies that provided them with the technology. Information about their use is coming out only because of hard-fought battles by public advocates who have had to file, and often litigate, requests for access to cell-site simulator data. Information about individual searches is even harder to come by. Under the federal government’s new rules, targets may eventually learn that they have been subject to cell-site simulator searches. But bystanders likely will never know that they were swept up in these searches, too.

Second, surveillance and search technology is developing rapidly. But courts and legislators tend to be slow-moving and anything but uniform. We will be seeing more litigation and advocacy about cell-site simulators. What we don’t know is what the results will be, how the results will differ between states, and how they will complicate an already complicated field of privacy-related rights in this country.

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