Milwaukee Wisconsin Stingray Federal Appeals Court
Photo by Cliff from Arlington, Virginia, USA [CC BY 2.0], via Wikimedia Commons

The 7th Circuit federal appellate court will become the first federal appeals court to examine the Fourth Amendment issues related to cell phone surveillance tools known as cell-site simulators or stingrays. The 2013 case, known as United States v. Patrick, involves Milwaukee resident Damian Patrick, his arrest for a probation violation, and the likelihood that the police illegally used a stingray to locate him.

Truth In Media has written extensively about how these devices are being used to track suspected criminals while largely operating without oversight from local, state, or federal authorities. Exactly how the devices operate and what data they collect and/or save has been unknown because of a vast amount of secrecy surrounding the tools.

The Electronic Frontier Foundation describes the Stingray as “a brand name of an IMSI (International Mobile Subscriber Identity) Catcher targeted and sold to law enforcement. A Stingray works by masquerading as a cellphone tower – to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not – and tricks your phone into connecting to it.”

On October 28, 2013, Damian Patrick was arrested while sitting in the passenger seat of a rented white Chevy Malibu in northern Milwaukee. A police report indicates that two Milwaukee Police Department (MPD) officers stopped the vehicle and ordered Damian Patrick and the driver to exit. The officers noticed a gun on the floor of Patrick’s seat and arrested him for an arrest warrant for probation violation.

Patrick was unaware he was being monitored by local police as well as the FBI. Since that time, questions have arose regarding how exactly the police knew Patrick’s location. Ars Technica writes: 

“How did the Milwaukee Police Department and the FBI magically descend upon Patrick’s location? The arrest reports are vague, making references only to an ‘unknown source’ and ‘prior knowledge.’ The report says, ‘We [police] obtained information‘ to the fact that Patrick, wanted on a felony probation violation, happened to be in that parking spot.

Less than a month later, Patrick faced one count in violation of federal gun laws. His lawyer filed a motion to suppress the ‘unlawful seizure’ on the grounds that nothing in the tip “was predictive”—the officers couldn’t have known that there was a reasonable suspicion to seize Patrick.”

Patrick caught a break in 2014 when one of the arresting officers, Phillip Ferguson, revealed that a “law enforcement officer” was “tracking” his phone. While court records indicate that the MPD asked the court for a pen register or trap and trace order for Patrick’s phone, it is likely that the MPD and/or the FBI used a stingray to grab the data out of the air.

The use of pen register or trap and trace orders with stingray technology has created a situation where many judges end up approving of technology that they do not quite understand. Law enforcement often seek approval of cell site simulators using outdated pen register, trap and trace orders without fully explaining to the judge the capabilities of the technology.

Patrick’s attorney, Chris Donovan, filed his opening brief in the appeal earlier this month asking the court to overturn the arrest based on violation of Patrick’s Fourth Amendment protections. Since the court did not have a warrant to use a cell site simulator “fruits of this illegal search must be ordered suppressed, specifically that the gun that was found laying at his feet when he was arrested,” Donovan wrote.

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The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed an amicus brief in support of Damian Patrick. The ACLU and EFF also note that Wisconsin passed a 2014 state law which requires warrants for stingray technology.

The case is a prime example of the growing dangers of technology in the hands of government with little to no oversight. Despite promises that the tools would only be used in emergency situations, the surveillance devices are becoming increasingly normalized.

As EFF attorney Jennifer Lynch noted, “It looks like the police are using stingrays for pretty minor crimes— crimes that run the gamut.”