The “Classified” Defendant

The WSJ’s Devlin Barrett wrote an excellent article (subscription required) on the Department of Justice’s (DOJ) use of cell-site simulators to locate suspects and fugitives from justice. The U.S. Marshals Service, which is a subset of the DOJ, spent more than $10 million from 2009 to 2014 to purchase cell-site simulators.

SO WHAT ARE CELL-SITE SIMULATORS?

Stingray
Stingray

Cell-site simulators go by different names such as “dirtboxes” or “Stingrays.”

Stingrays trick cell-phones in a scanned area to send their signals to the Stingray instead of a cell-site tower. The Stingray then uses the signal it receives from a suspect’s cellphone to locate a suspect. It acts like a GPS signal that police use to find a suspect.

According to the article, the Marshals Service use Stingrays in tandem. First, an airplane flies over an area and scans the entire region for a suspect’s cell-phone signal. Once it locates the signal, a ground unit uses a second Stingray device to pinpoint the location and then arrest a suspect or fugitive.

WHY DOES THIS MATTER?

UTAH DATA CENTER
“IF YOU HAVE NOTHING TO HIDE  YOU HAVE NOTHING TO FEAR. ”   UTAH DATA CENTER/NSA

In short, because the Government has been so secretive about its use of this technology.

Until 2015, law enforcement refused to discuss the technology or its use. Then, once the technology was reported by the WSJ and other news organizations, DOJ said its use of this method was legally approved by the courts. It specifically stated the US Marshals service does not engage in spying, espionage, or intelligence activities.

However, that last statement is inconsistent with its own actions because according to the article, the Marshals Service describes its technical operations and use of Stingrays as “classified.”

Classified information is generally associated with espionage or other intelligence gathering agencies. Further, Stingrays were developed in conjunction with the Central Intelligence Agency (C.I.A.) and have been used to locate high-value drug suspects in Mexico as well as espionage operations in Iraq and overseas.

In short, the article indicates that law enforcement is using technology meant for espionage purposes to apprehend and prosecute suspects and fugitives from justice.

This use of Stingrays and classified techniques make it difficult, if not impossible, for defense lawyers to conduct discovery and to present violations of the Fourth Amendment to a trial court.   In other words, defendants must rely on the Government’s assertions that it complied with the law because the technology the government uses is “classified.”

CONCLUSION

The DOJ’s use of Stingrays may be legitimate and constitutional. However, the lengths the Government has gone to keep this technology secret raises serious concerns: (1) Who is overseeing this technology to make sure it is not being abused? (2) Does it violate the Fourth Amendment’s prohibition against unreasonable search and seizure; (3) What information (and from what cell phone) is being captured by the cell-site simulator? and (4) What information should be disclosed during discovery to a defendant who is apprehended using Stingray technology?

I will keep you posted if new information develops.

GENARO R. CORTEZ
Attorney
Phone:  210-733-7575

Author: Genaro Cortez

Hi! I am Genaro Cortez, a DWI Attorney in San Antonio, Texas. This blog provides information on frequently asked questions about DWI charges and criminal defense.