In the 21st century – as you know – we’re living in a surveillance society where the government can easily monitor your online activity and track your cell phone. One item that’s intrusive is something called a “StingRay,” a little-known cell phone surveillance device. Manufactured by the Harris Corporation and originally developed for military and intelligence use, the StingRay and similar devices have for years been widely used by law enforcement agencies across the nation. The StingRay is a cell site simulator, a device that mimics the activity of a cell phone tower and provides authorities with location data.

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The increasing use of the StingRay has also largely been kept secret until recently, and courts are now rejecting the use of the StingRay device and the secrecy that surrounds it. If you are charged with a crime in the state of New York on the basis of evidence gathered using any surveillance device, an experienced Westchester County criminal defense attorney may be able to help. In July, for instance, a federal judge in New York ruled that evidence gathered using a StingRay requires a search warrant.

In Manhattan, U.S. District Judge William Pauley ruled that police departments may not secretly use a StingRay to turn your cell phone into a tracking device – unless they’ve obtained a warrant. The judge found that the use of a StingRay device without a search warrant violates the constitutional right guaranteed by the Constitution’s Fourth Amendment to be free from unreasonable searches and seizures.

HOW MANY POLICE AGENCIES USE STINGRAY DEVICES?

A StingRay can locate a specific cell phone with remarkable precision by gathering data from all of the wireless devices in the general area of a search. StingRay devices have been used by federal law enforcement since the 1990s, and their use by state and local police agencies has also been quite extensive. In 2014, police in Florida said that they have used similar devices at least two hundred times since 2010 without disclosures or warrants. The American Civil Liberties Union reports that at least 66 police agencies in 24 states and the District of Columbia own StingRays, and that other agencies have probably purchased the device without public disclosure.

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The use of StingRay devices by local police agencies has frequently been funded by anti-terror grants from the Department of Homeland Security. The Los Angeles Police Department used such a grant in 2006 to purchase a StingRay for “regional terrorism investigations.” However, according to the Electronic Frontier Foundation, the “LAPD has been using it for just about any investigation imaginable.” In 2015, the Baltimore Sun reported that Baltimore police have used a StingRay device more than 4,300 times.

While judges have repressed StingRay-related evidence in a number of criminal trials, according to Reuters, the ruling by Judge Pauley is the first time a federal judge has insisted that a warrant must be obtained before a StingRay can be used. The judge ruled that the Drug Enforcement Administration violated a defendant’s constitutional rights when agents used a StingRay without a warrant to follow the defendant to his home and arrest him. Judge Pauley wrote, “Absent a search warrant; the government may not turn a citizen’s cell phone into a tracking device.”

IS THE RIGHT TO PRIVACY OBSOLETE?

A person’s location does not seem important these days. In fact, we want others to know where we are – that’s why we tell our friends on Facebook when we’re at a great concert, restaurant, or attraction. The new “Pokemon Go” craze has people giving out so many details regarding their location that police departments are asking players to be more careful about disclosing personal information to strangers. But do we really want the state – or anyone else – to know precisely where we are at every moment of every day? Don’t we still retain the right to “get away from it all” sometimes, to not be bothered, to be where we can’t be found?

Since the NSA and other surveillance disclosures of 2013, the right to privacy has been a subject of international debate, and frankly, the right has come under attack. Using the justification of a “war” on terror, the NSA, CIA, and others have engaged in unprecedented surveillance activities around the globe. In the 21st century, there’s genuine concern regarding whether or not a right to privacy can survive alongside the ability that governments now have to access and analyze every detail of our lives.

In the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, a right to privacy is explicit. Article 12 of the Declaration states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

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WHAT DOES THE U.S. CONSTITUTION SAY?

The Fourth Amendment to the United States Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Thus, although the U.S. Constitution does not explicitly set forth a right to privacy, the Supreme Court has found that the “right of the people to be secure” is, in fact, a right to privacy against governmental intrusion. Under the Fourth Amendment, law enforcement officers must obtain written permission from a court before they may lawfully search and seize evidence of criminal activity. A court grants permission by issuing a warrant.

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Anyone who is accused of a crime on the basis of evidence gathered by surveillance technology, including a StingRay, will need an aggressive defense attorney who will demand complete information from the prosecution about the surveillance. In the state of New York, if a warrant was not properly obtained or if the police violated your rights in any way, an experienced Westchester County criminal defense attorney can probably use the misconduct by the police to your advantage. Judges in New York and across the country are closely scrutinizing the activities of police departments and upholding your right to privacy – even in this age of surveillance.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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