A three-judge panel of the D.C. Court of Appeals grappled Tuesday with the limits of privacy expectations in a case involving the city police’s warrantless use of cellphone surveillance technology.
Metropolitan Police had used the technology to discover the location of a robbery and sexual assault suspect, and the judges are to decide whether the man’s privacy rights were less consequential because he was carrying stolen cellphones and was found on a public street.
Civil liberties advocates are supporting the appeal of the defendant, Prince Jones, arguing that police violated his Fourth Amendment rights by using a cell-site simulator to pinpoint his exact location without first obtaining a warrant.
Using a cellphone tracking device known as a Stingray, police located Jones’ phone and eventually found him sitting in a car on a public street in October 2013. They also found in his possession several cellphones stolen from robbery and sexual assault victims.
Authorities investigating the sexual assaults could have tried to use the Stingray to track one of the stolen cellphones, and were prepared to do so, if they had not located Jones by tracking his own phone, Assistant U.S. Attorney Lauren Bates said Tuesday.
Judge Phyllis D. Thompson asked Jones’ defense attorney why he should have any expectation of privacy, given the fact that he was carrying stolen cellphones whose owners could have had GPS tracking enabled and who consented to police searching for their phones.
“Carrying stolen property does not waive privacy rights,” said Stefanie Schneider of the D.C. Public Defender Service. “If a person was carrying a stolen phone in their bag or purse, the government would still have to get a warrant to search their bag.”
The police can track a stolen phone, but Jones still had a right to privacy regarding his movements, Ms. Schneider said.
Jones was sentenced to 66 years in prison after he was convicted in 2014 of sexually assaulting two women who were contacted for escort services through Backpage.com. In each of the attacks, which occurred within days of one another, the women responded to the ads and met a man who forced them at knifepoint to perform oral sex and then robbed them.
At trial in D.C. Superior Court, Jones’ attorneys had sought to suppress evidence based on the warrantless use of a Stingray to track and identify him as the suspect.
The appellate judges asked prosecutors Tuesday to defend their argument that police inevitably would have discovered Jones in possession of the stolen cellphones if they had traced one of those phones rather than his personal phone.
Judge Michael William Farrell said inevitable discovery arguments often are raised in cases in which police have identified a suspect or have the person in custody. In this case, he noted that police had no idea of the suspect’s identity and that all investigators had to go on was a phone number that had been used to call the women who were assaulted.
Ms. Bates said that society at large recognizes the fact that cellphones work by emitting electronic signals that can transmit information about a phone’s location. In Jones’ case, officers found him sitting in a car on a public street near a busy Metro station with his phone and stolen phones in his possession, she said.
“He is not trying to hide himself,” the prosecutor said.
Judge Farrell questioned whether it was really a forgone conclusion that police would have found Jones had they searched for a victim’s cellphone, posing the hypothetical that Jones could have dumped the victim’s phone in the sewer in the 40 minutes it took police to zero-in on his location using the Stingray.
Ms. Bates said all indications were that Jones had no intention of getting rid of the phone, had kept it for several days and was using it.
“There is a lot of uncertainly there that it would work,” Judge Corinne Beckwith said of the plan to track a victim’s phone had a trace of Jones’ phone not worked.
Prosecutors noted in their briefs that since the Justice Department issued guidelines in 2015 requiring police to obtain a warrant before deploying cell-site simulators, the Metropolitan Police Department “has obtained a number of search warrants specifically authorizing the use of cell-site simulators.”
Ms. Schneider noted that DOJ policy was adopted by the Obama administration and that it could be revoked under the current administration.
The Jones case represents the first time the Metropolitan Police Department’s use of the surveillance technology has been challenged at the appellate level.
The case has attracted the attention of the American Civil Liberties Union and the Electronic Frontier Foundation, which filed a friend-of-the-court briefs as part of their nationwide legal battle to rein in law enforcement agencies’ use of such surveillance.
Privacy advocates have unearthed use of the surveillance technology by local police departments over the past few years, but since then only a handful of appellate courts have had the chance to weigh in on Stingray use by law enforcement.
Judge Beckwith seemed to express interest in how other courts might interpret a ruling on the issue by the D.C. Court of Appeals, asking whether there are many other similar challenges to warrantless use of the technology.
Noting that many law enforcement agencies have closely guarded their use of the surveillance technology as a secret, Nathan Freed Wessler, an ACLU attorney presenting arguments in the case, said there are not many cases in which the same legal issues are challenged. As a result, he said the D.C. Court of Appeals their ruling in this case would likely be taken into consideration by other courts who consider similar challenges.