On August 27, 2015, a DEA technician entered a building in the Washington Heights neighbourhood of New York City with a Stingray device that led him to Raymond Lambis’ apartment. Agents then knocked on the door. Lambis was home. He consented to a search of his bedroom where the agents found narcotics and drug paraphernalia. Lambis was charged with conspiracy. He moved to suppress.

As part of an investigation into an international drug trafficking organization the DEA had obtained a warrant for pen register information and cell site location information (CSLI) for a target cell phone. Pen register information is a record from a service provider of the telephone numbers dialed from a specific phone. CSLI is a record of non-content-based location information from the service provider derived from “pings” sent to cell sites by a target phone. The cell site data allows the phone’s location to be approximated by providing a record of where the phone has been used. The warrant did not authorize the use of the Stingray.

The DEA agents concluded from the cell site location information that the target phone was in the vicinity of West 177th Street and Broadway. But the data was not precise enough to identify the specific building much less the apartment. The technician was then sent to the intersection with a cell site simulator often called a StingRay, Hailstorm or TriggerFish. A cell site simulator locates cell phones by mimicking the service provider’s cell tower and forcing cell phones in its range to transmit pings to it. The device then calculates the strength of the pings until the target cell phone is pinpointed. The technician first identified the apartment building with the strongest ping. He then entered the building and walked the halls until the cell site simulator identified Lambis’ apartment as the likely location of the target cell phone.

On July 12, 2016, Judge William H. Pauley III, of the United States District Court, Southern District of New York, released his Opinion & Order in USA v Lambis, Case 1:15-cr-00734, granting the motion to suppress the evidence. In an article titled D.E.A. Needed Warrant to Track Suspect’s Phone, Judge Says reported in The New York Times edition of July 12, 2016, Nathan Freed Wessler, a staff lawyer with the American Civil Liberties Union, hailed the ruling as the first by a federal judge to suppress evidence obtained by the warrantless use of a cell site simulator. The Maryland Court of Special Appeals had previously affirmed a similar decision by a circuit judge in State v Andrews, 227 Md. App. 350 (2016). “A federal judge has finally held the authorities to account,” Mr.Wessler said, adding that the opinion, “strongly reinforces our constitutional privacy rights in the digital age.”

I will comment on two of the questions that arose: (1) was the use of the cell site simulator a search? and (2) did the third party doctrine apply?

The command that underlies the Fourth Amendment to the Constitution of the United States and s. 8 of the Canadian Charter of Rights is that searches and seizures must be reasonable. A search occurs in both American and Canadian law when the state violates a reasonable expectation of privacy. Warrantless searches are presumptively unreasonable. And the home is a special place of historical significance dating back centuries in constitutional law and at common law.

In Kyllo v United States, 533 US 27 (2001) Justice Antonin Scalia, writing the opinion for a 5-4 majority, held that a Fourth Amendment search occurred when government agents used a thermal-imaging device to detect infrared radiation emanating from a home. The majority rejected the government’s argument, at p. 35, that that there was no search because the device only detected “heat radiating from the external surface of the house”. Justice Scalia reasoned, at pp. 35-6, that distinguishing between “off-the-wall” observations and “through-the-wall surveillance” would “leave the homeowner at the mercy of advancing technology – including imaging technology that could discern all human activity in the home.” Justice Scalia therefore held, at p. 40, that, “…[w]here…the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” In applying Kyllo, Judge Pauley came to these conclusions, at pp. 3-6:

“Here, as in Kyllo, the DEA’s use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the ‘pings’ from Lambis’s cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator. See United States v. Knotts, 460 U.S. 276 (1983); see also State v. Andrews, 227 Md. App. 350, *23 (Md. Ct. Spec. App. 2016) (holding that the use of a cell site simulator requires a search warrant based on probable cause, and finding that the trial court properly suppressed evidence obtained through the use of the cell-site simulator).

The use of a cell-site simulator constitutes a Fourth Amendment search within the contemplation of Kyllo. Absent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device. Perhaps recognizing this, the Department of Justice changed its internal policies, and now requires government agents to obtain a warrant before utilizing a cell-site simulator. See Office of the Deputy Attorney General, Justice Department Announces Enhanced Policy for Use of Cell-Site Simulators, 2015 WL 5159600 (Sept. 3, 2015)…(‘The Department recognizes that the collection of precise location information in real time implicates different privacy interests than less precise information generated by a provider for its business purposes.’).”

But Kyllo was not followed by the Supreme Court of Canada in R v Tessling, [2004] 3 SCR 432 where Justice Ian Binnie, writing for a unanimous court, at para. 51, agreed with Justice John Paul Stevens, speaking for the minority in Kyllo, that, “…”public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gasses, airborne particulars, or radioactive emissions, any of which could identify hazards to the community.” Justice Binnie went on to state the following, at para. 58:

“Scalia J. does not elaborate on what he means by ‘a device that is not in general use’ and the dissenters suggested such a standard is unworkable (Kyllo, supra, at p. 47). On the evidence here, FLIR imaging [Foward Looking Infra-Red camera] does not disclose ‘ details of the home’, as has already been discussed. The terms ‘technology’ or ‘a device that is not in general public use’ (or Abella J.A.’s reference to ‘enhanced aids…which are in common use’, at para. 63) are vague and take in a lot of territory. The argument, presumably, is that if an area of our lives is already exposed to surveillance by commonly available ‘technology’ such as binoculars, we can have no reasonable continuing expectation of privacy in that respect. This may be true, but what is the test for ‘general public use’? In my view, the issue is not whether FLIR technology puts the police inside the home, because it does not, or whether FLIR is in general public use (it is not) but rather the nature and quality of the information about activities in the home that the police are able to obtain. The evidence is that a FLIR image of heat emanations is, on its own, as Abella J.A. acknowledges, ‘meaningless’. That is the bottom line.”

However, Tessling is not controlling in the context of cell site simulators. Cell phones are devices in general public use. “In fact,” as Judge Pauley said in Lambis at p. 4, “they are ubiquitous.” And a cell site simulator is highly intrusive technology that may vacuum not only the target cell phone but also the cell phones of innocent people within its range who are not suspected of any crime. The technological distinction between FLIR cameras and cell site simulators is this. FLIR technology records images of thermal energy or heat radiating from a building. A cell site simulator draws the cell phone to it like a magnet. That leads to consideration of the third party doctrine.

In Fourth Amendment jurisprudence the third party doctrine applies when a party voluntarily turns over information to a third party and thus relinquishes a reasonable expectation of privacy in that information. In Smith v Maryland, 442 US 735 (1979) Justice Harry Blackmun, writing for a 5-3 majority, held at p. 742, that pen register information is subject to the third party doctrine because, “…[a]ll telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.” In Lambis, Judge Pauley concluded that the location data detected by a cell site simulator is different in kind from pen register information because it is neither initiated by the user nor sent to a third party, at pp. 12-4:

“First, “[c]ell phone users do not actively submit their location information to their service provider.” Andrews, 227 Md. App. 350 at *25…These ‘pings’ are sent automatically by the phone to maintain its connection to the network…Unlike CSLI, the ‘pings’ picked up by the cell-site simulator are not transmitted in the normal course of the phone’s operation. Rather, ‘cell site simulators actively locate phones by forcing them to repeatedly transmit their unique identifying electronic serial numbers, and then calculating the signal strength until the target phone is pinpointed. Andrews, 227 Md. App. 350 at *3…’In other words, the cell site simulator tricks the nearby cell phone into transmitting information to it as it would the nearest cell tower’.

Second, unlike pen register information or CSLI, a cell-site simulator does not involve a third party…For both pen register information and CSLI, the Government ultimately obtains the information from the service provider who is keeping a record of the information. With the cell-site simulator, the Government cuts out the middleman and obtains the information directly. Without a third party, the third party doctrine is inapplicable.”

The third party doctrine may require a different, or alternative, analysis in Canada under the restricted purpose doctrine in Charter s. 8 jurisprudence. An individual who provides personal information to a service provider retains a reasonable expectation that the information will be used for the purpose for which it is divulged. For example, an individual retains a privacy interest in his or her subscriber information that is given to a provider for Internet or cellular telephone service. Voluntarily divulging personal information to a third party for one purpose does not relinquish a reasonable expectation of privacy for all purposes. Whether location information is “initiated by the user”, or whether the state “cut out the middleman”, are questions that would not necessarily have to be answered under Canadian law. (See: R v Dyment, [1988] 2 SCR 417 per La Forest J., at pp. 429-30; and, R v Spencer, [2014] 2 SCR 212 per Cromwell J., at para. 40)

It appears that Judge Pauley had the restricted purpose doctrine in mind when he stated, at p. 11, that “[t]his Court need not address whether the third party doctrine is ‘ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,’ United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring), because even under the historic framework of the doctrine, it is not available to the Government here.” In Jones, Justice Sonia Sotomayor had said, in a concurring majority opinion, at p. 957: “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

It was unclear on the day that Judge Pauley’s opinion in Lambis was released whether the government would appeal. A spokeswoman for the U.S. Attorney’s office in Manhattan declined to comment. (See: Nate Raymond. In first, U.S. judge throws out cell phone ‘stingray’ evidence. Reuters. July 13, 2016)