MILWAUKEE (AP) — A dissenting opinion by a federal appeals court judge on police use of secret cellphone tracking technology has convinced a Milwaukee man to take his case a step further.
Attorneys for Damian Patrick filed a petition this week asking for a rehearing in front of the full U.S. 7th Circuit Court of Appeals, after losing a split decision in November to the court's three-judge panel. It's the first time the use of cell tower simulators, known as stingrays, has reached a federal appellate court, the Milwaukee Journal Sentinel reported (http://bit.ly/2hiTeVT ).
"It is time for the stingray to come out of the shadows, so that its use can be subject to the same kind of scrutiny as other mechanisms, such as thermal imaging devices, GPS trackers, pen registers, beepers, and the like," 7th Circuit Judge Diane Wood wrote in her dissenting opinion. "Its capabilities go far beyond any of those."
Stingrays are suitcase-sized devices that imitate a cellphone tower and draw signals from all nearby cellphones, not just the targeted number. It allows police to zero in on the phone's location, down to a specific apartment in a building. The phones don't have to be in operation, and some versions of the technology can even intercept content, like texts and calls, or pull information stored on the phones.
The case stems from a 2013 incident when Milwaukee police were looking for Patrick on a violation of probation. When they found him in a car, there was a gun on the floor and he was charged with being a felon in possession of a firearm.
Months later, during a hearing on his motion to suppress the evidence, police revealed they had found Patrick not based on a tip, as initially stated, but by using records from Sprint, his cellphone service provider. After he entered a conditional guilty plea and appealed, his lawyers learned police had supplemented the Sprint data with a real-time Stingray trace.
The majority panel ruling in Patrick's appeal concluded that since police had probable cause to arrest Patrick for his probation violation they didn't need a warrant. And because he was in a public place, he had no privacy interest in his location, Judge Frank Easterbrook wrote. He and Judge Michael Kanne agreed there may be constitutional questions about stingrays, but that Patrick's case isn't the right one to explore them.
A U.S. House committee report issued Monday said clearer guidelines are needed for law enforcement's use of secretive and intrusive cellphone tracking technology, and police and federal agents should be upfront with a judge about their deployment.
Information from: Milwaukee Journal Sentinel, http://www.jsonline.com