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Judge slams FBI for improper cellphone search, stingray use | Ars Technica

Posted by M. C. on January 19, 2020


A federal judge in San Francisco recently excoriated the government over its improper methods in searching one suspect’s cell phone and in the use of a stingray to find an alleged co-conspirator.

Prosecutors say the two men, Donnell Artis and Chanta Hopkins, were engaged in credit card fraud and also illegally possessed firearms, among other pending charges that also involve four other people.

The crux of the issue is that, in April 2016, an FBI agent sought and obtained two warrants from an Alameda County Superior Court judge: one to search Artis’ phone and another to deploy a stingray to locate Hopkins.

As Ars has reported for years, stingrays are in use by both local and federal law enforcement agencies nationwide. The devices determine a target phone’s location by spoofing or simulating a cell tower. Mobile phones in range of the stingray then connect to it and exchange data with the device as they would with a real cell tower.

Once deployed, stingrays intercept data from the target phone along with information from other phones within the vicinity—up to and including full calls and text messages. At times, police have falsely claimed that information gathered from a stingray has instead come from a confidential informant.

Good faith

However, California law does not allow state judges to sign off on warrants for federal agents, something that this particular FBI agent, Stonie Carlson, apparently did not know.

“But the two warrants were plagued by numerous errors, reflecting a pattern of systematic recklessness by law enforcement that militates in favor of suppressing the evidence (and against applying the ‘good-faith exception’ to the exclusionary rule),” US District Judge Vince Chhabria wrote in a July 3 order. “This ruling is published separately to put the relevant actors in the criminal justice system on notice that California law prevents state judges from issuing search warrants to federal law enforcement officers, which means that federal law enforcement officers are not permitted to execute such warrants.”

In a hearing before Judge Chhabria on Tuesday, July 17, prosecutors reiterated that they would seek to appeal his separate order that suppressed evidence obtained as a result of those illegal searches. This process will take months to be heard before the 9th US Circuit Court of Appeals. If this ruling is upheld, it would throw a major wrench into the prosecutions of Artis and Hopkins.

“The good-faith exception to the exclusionary rule does not apply in this case,” Judge Chhabria wrote in the second July 3 order. “Perhaps any one of the above-referenced errors, viewed in isolation, could be excused under the good-faith exception. But the whole string of errors embodied in these warrant applications militates against applying the good-faith exception. Indeed, although the above-described errors are the most egregious ones, they are not the only instances of sloppy, inappropriate law enforcement work.”

In his orders, Judge Chhabria referred multiple times to a recent stingray case out of Oakland, United States v. Ellis, in which another federal judge definitively found that using a stingray requires a valid warrant.

During a December 2017 hearing, Judge Chhabria also had this incredible exchange with Randall Leonard, an Assistant United States Attorney who argued that because Agent Carlson was part of a sheriff-federal task force, he should be considered a sheriff, with all the rights of a state “peace officer.”

Judge Chhabria didn’t buy it.

THE COURT: Federal law makes him a sheriff under California law?

MR. LEONARD: Well, I mean—

THE COURT: So if federal law said that all French poodles are sheriffs under California law, would that be OK?

MR. LEONARD: Of course not, Your Honor.

THE COURT: There would have to be California law saying, “Yes, we agree that French poodles are sheriffs;” right?

MR. LEONARD: Certainly.

THE COURT: Otherwise French poodles would not be a sheriff under California law, right?

MR. LEONARD: That’s right.

In short, because Carlson had the wrong type of warrant, that was effectively the same as having no warrant at all—therefore, it was an unconstitutional search. Ultimately, Judge Chhabria found this argument convincing.

“The judge’s order suppressing the FBI agent’s illegal use of the cell-site simulator to locate Mr. Hopkins is in line with the understanding that we all have a legally recognized privacy expectation in our location,” Gruel emailed Ars.

“Whether the FBI uses a GPS or a stingray device to locate someone, the courts are clear that there must be a search warrant supported by probable cause.”

Plus, he added: “We had to dig up what the FBI agent hid. There was an obvious effort to hide the truth about using the stingray device to locate and arrest my client.”

The United States Attorney’s Office in San Francisco did not respond to Ars’ request for comment.

Both sides are due back in court on September 4.

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