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Is A Search Warrant Required to Access Cell Phone Records In California

“THE STINGRAY” STING

Daniel Rigmaiden might have seemed a bit crazy to his attorneys. He was arrested in 2008 after he was caught in his elaborate and meticulous scheme filing fraudulent tax claims while living “off-grid” in the woods. He couldn’t understand how the authorities found him; he operated on fake IDs, had virtually no public identity and he ran his scam through anonymized web browsing. Mr. Rigmaiden surmised that the only way the authorities could have found him was through the cellular AirCard that he used to access the internet. He told his attorney, “I think they tracked me down by sending rays into my living room.” That may still sound a little kooky now but back in 2008, before Edward Snowden’s revelations, he sounded like a crazy person. After his fourth attorney withdrew from his case, he ended up representing himself.

Turns out Mr. Rigmaiden wasn’t crazy at all —at least not about the rays in his living room. While in prison, Mr. Rigmaiden spent countless hours poring over his case, reading tens of thousands of documents. He was able to piece together enough information to suspect the authorities caught him by using a secret technology that intercepted cell phones. In fact, what he found eventually led to the discovery of technology, known as the StingRay, that police agencies have been using for years, unbeknownst to anyone outside of the agencies using this technology.

The StingRay mimics a cell phone tower and forces cell phones within its range to connect to it. In doing so, the police operating this device can—and do—collect data from all cell phones in the area, whether the phone is on or off. Individual cell phone users are never the wiser.

This use of this technology is so secret that agencies who receive the device must sign a nondisclosure agreement, which prohibits the agency from divulging the use of this technology. It is used by police departments across the country, including departments in California. Until Mr. Rigmaiden’s discovery and the A.C.L.U.’s efforts to investigate and implement controls on the use of the device, state and federal police agencies were using these without ever divulging to the defense that the StingRay was used as a investigation tool. In fact, defense attorneys have reported that when the prosecution is pressed for discovery regarding police investigations that would demand divulging the use of the StingRay, the prosecutions are suddenly withdrawn.

The StingRay continues to be widely used by the police in at least 21 states. In September of 2015, the U.S. Department of Justice released guidelines regarding the use of cell-site simulators that now require the F.B.I. and other federal agents to obtain a search warrant before using a StingRay. Three states (Washington, Utah, and Virginia) have recently written laws requiring court orders for the use of StingRays and other similar devices. California also recently approved legislation that would require local police agencies to get their city council’s approval before using the StingRay or other cell-sit simulators and to disclose to the public that the agency is using such devices.

It’s a brave new world out there, or maybe it is 1984 (+ 32) but as one Utah legislator asked before the legislation regulating the use of these devices passed overwhelmingly: “Are you comfortable having all your information — your contacts, your appointments, your photos — this easy to access?”

If you have any questions regarding this or any other criminal defense matter, please feel free to contact us at www.bill@williamweinberg.com or 949-474-8008.