Pubdate: Wed, 13 Jul 2016
Source: New York Times (NY)
Copyright: 2016 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Benjamin Weiser

DRUG EVIDENCE THROWN OUT OVER TRACKING OF CELLPHONE

A federal judge in Manhattan ruled on Tuesday that drugs seized from 
a man charged in a narcotics case could not be used as evidence, 
because agents had not obtained a warrant for a covert cellphone 
tracking device that led them to his Washington Heights apartment, 
where the drugs were found.

The portable device, known as a cell-site simulator and often 
referred to as a Stingray, has been used widely by federal and local 
law enforcement officials around the country, including in New York, 
to solve crimes and locate missing people.

Last September, just weeks after the search in the Manhattan case, 
the Justice Department announced a new policy that requires federal 
law enforcement officials to obtain a search warrant in most cases 
before using a cell-site simulator.

The simulator essentially mimics a cellphone tower (or cell site), 
and tricks cellphones into transmitting "pings" to the device, 
allowing agents who have narrowed down a targeted phone's location to 
determine where it is in use.

But the judge, William H. Pauley III of Federal District Court, ruled 
that the simulator's use constituted a Fourth Amendment search. 
"Absent a search warrant," he wrote, "the government may not turn a 
citizen's cellphone into a tracking device."

Nathan Freed Wessler, a staff lawyer with the Speech, Privacy and 
Technology Project, which is run by the American Civil Liberties 
Union, said the ruling was the first by a federal judge to suppress 
evidence obtained through the warrantless use of a cell-site 
simulator. In March, a Maryland appellate court affirmed a similar 
decision by a circuit court judge in Baltimore.

"A federal court has finally held the authorities to account," Mr. 
Wessler said, adding that the opinion "strongly reinforces the 
strength of our constitutional privacy rights in the digital age."

According to Tuesday's decision, the federal Drug Enforcement 
Administration, during a 2015 investigation of an international drug 
trafficking organization, sought a warrant for the numbers dialed 
from a targeted phone, as well as a record of the locations of cell 
towers to which the phone was connecting.

With that information, the D.E.A. determined that the targeted phone 
was being used near 177th Street and Broadway. To determine its 
location more precisely, Judge Pauley noted, a technician then 
carried a simulator to the intersection and identified the apartment 
building with the strongest "ping."

The technician then "walked the halls until he located the specific 
apartment where the signal was strongest," Judge Pauley wrote.

In what prosecutors said was a consensual search, the judge noted, 
agents found narcotics, three digital scales, empty zip-lock bags and 
other paraphernalia in the bedroom of Raymond Lambis, the man who was 
charged in the case.

But, Judge Pauley wrote: "Here, the use of the cell-site simulator to 
obtain more precise information about the target phone's location was 
not contemplated by the original warrant application. If the 
government had wished to use a cell-site simulator, it could have 
obtained a warrant."

Mr. Lambis's lawyer, Alan Seidler, said, "The judge did the right 
thing, and the Department of Justice obviously agrees," in reference 
to the department's policy now requiring warrants before use of the 
device. Mr. Seidler said the case was still pending. Mr. Lambis has 
pleaded not guilty to a conspiracy charge.

A D.E.A. spokesman said the agency has established a policy that 
requires obtaining a search warrant for use of cell-site simulator 
technology and "acts in compliance" with the Justice Department's 
policy. The office of Preet Bharara, the United States attorney for 
the Southern District of New York, declined to comment.
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