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Almost Gone: the Vanishing Fourth Amendment's Allowance Of GEE- TO PRINT (DO NOT DELETE) 5/21/2019 4:05 PM ALMOST GONE: THE VANISHING FOURTH AMENDMENT’S ALLOWANCE OF STINGRAY SURVEILLANCE IN A POST-CARPENTER AGE HARVEY GEE* TABLE OF CONTENTS I. FOURTH AMENDMENT JURISPRUDENCE AND THE LACK OF POLICE ACCOUNTABILITY IN TRAFFIC STOPS .......... 412 II. BEYOND TERRY V. OHIO: FROM ONE-ON-ONE ENCOUNTERS TO PROACTIVE LARGE-SCALE STOP AND FRISKS ON THE STREETS WITHIN A POLICE STATE ......................................................................................... 417 III. DIGITAL UPGRADE: SURVEILLANCE STATE TECHNOLOGY AND REFRAMING THE SUPREME COURT’S FOURTH AMENDMENT JURISPRUDENCE ........ 420 A. CARPENTER V. UNITED STATES: POSITIONING A RESILIENT FOURTH AMENDMENT ON A PRO-PRIVACY TRAJECTORY IN THE DIGITAL AGE ............................................................. 423 IV. PRIVACY AND THE FOURTH AMENDMENT AFTER CARPENTER: ARGUING AGAINST THE UNCONSTITUTIONAL USE OF STINGRAY SURVEILLANCE TECHNOLOGY ........................................... 430 * The author is an attorney in San Francisco. He previously served as an Attorney with the Office of the Federal Public Defender in Las Vegas and Pittsburgh, the Federal Defenders of the Middle District of Georgia, and the Office of the Colorado State Public Defender. LL.M, The George Washington University Law School; J.D., St. Mary’s School of Law; B.A., Sonoma State University. The author thanks Taylor Francis, Elvira Razzano, Austin Smith, and the Southern California Review of Law and Social Justice for their assistance and hard work in the preparation of this article. 409 410 REVIEW OF LAW AND SOCIAL JUSTICE [Vol. 28:3 A. THE SECRET USE OF STINGRAY SURVEILLANCE TECHNOLOGY BY LAW ENFORCEMENT ................................ 431 B. CALLS FOR A WARRANT REQUIREMENT FOR THE USE OF STINGRAY CELL-SITE SIMULATORS FROM LEGAL SCHOLARS ............................................................................. 436 C. LEGAL AUTHORITY FOR A WARRANT REQUIREMENT FOR STINGRAY CELL-SITE SIMULATORS ..................................... 438 V. CONCLUSION .................................................................................. 441 The Fourth Amendment1 continues to erode. You can be pulled over while driving for just about any reason under the pretext that you violated a traffic law.2 You can also be stopped while you are walking down the street in a “high crime area” and checked for an active arrest warrant.3 Cops can also secretly track your location via your smart phone using cell-site simulators, known as Stingrays, that send powerful electronic signals to bait automatic responses from all nearby cell phones.4 This Article examines a Fourth Amendment that is now “vanishing” due to new surveillance technology, and narrowly focuses on how the changing Fourth Amendment jurisprudence implicates the secretive and unfettered use of Stingray technology. This Article is divided into four Parts. The first two Parts provide the necessary groundwork for understanding how much the Fourth Amendment 1 U.S. CONST. amend. IV (“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.”). 2 Whren v. United States, 517 U.S. 806, 813 (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”). 3 See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.”) (internal citation omitted). 4 See Howard W. Cox, StingRay Technology and Reasonable Expectations of Privacy in the Internet of Everything, 17 FEDERALIST SOC’Y REV. 29, 30 (2016) (describing how Stingrays mimic cell phone towers, allowing authorities to use them to target devices and establish connectivity with law enforcement); Brian L. Owsley, TriggerFish, StingRays, and Fourth Amendment Fishing Expeditions, 66 HASTINGS L.J. 183, 185 (2014) (“[The Stingray] deceives nearby cell phones into believing that the device is a cell tower so that the cell phone's information is then downloaded into the cell site simulator.”); Stephanie K. Pell & Christopher Soghoian, A Lot More than a Pen Register, and Less than a Wiretap: What the StingRay Teaches Us About How Congress Should Approach the Reform of Law Enforcement Surveillance Authorities, 16 YALE J.L. & TECH. 134, 144–45 (2013); Andy Martino, Black Lives Matter Activists Are Convinced the NYPD Hacked Their Phones, OUTLINE (Apr. 7, 2017, 1:30 PM), https://theoutline.com/post/1360/black-lives-matter-police-surveillance-the-cops-hacked-their- phones?. 2019] ALMOST GONE 411 has weakened in the past fifty years. Part I examines the lack of police accountability that is enabled and exacerbated by a weakened Fourth Amendment and addresses the ability of the police to pull over cars with near impunity. Part II explores the myriad ways in which law enforcement is able to exploit stop and frisks to create what is effectively an occupied police state in communities of color. The last two Parts explore the future of the Fourth Amendment in the digital era. Part III reviews the Court’s Fourth Amendment jurisprudence on surveillance technology leading up to Carpenter v. United States,5 which shuttled the Fourth Amendment into the digital age.6 It proceeds to analyze the Carpenter ruling, which provides much needed protections against technologically enhanced police surveillance powers,7 and its implications for future privacy cases. Part IV investigates the prevalent use of Stingray surveillance technology by law enforcement to spy on people. As much as stop and frisks create and sustain a physical police state, Stingray surveillance facilitates a virtual police state. Lacking guidance on this issue of law enforcement using portable Stingray cell-site simulators as digital surveillance tools, courts must choose to apply, adapt, or reject settled doctrinal rules, and interpret recent Supreme Court decisions, in deciding whether using Stingrays violate the Fourth Amendment. Until the Supreme Court addresses the issue of cell-site simulators by the police, state supreme courts and federal courts, in the interim, can adopt the reasoning of Carpenter and 5 Carpenter v. United States, 138 S. Ct. 2206 (2018). 6 See Orin Kerr, Understanding the Supreme Court’s Carpenter Decision, LAWFARE (June 22, 2018, 1:18 PM) [hereinafter Kerr, Understanding Carpenter], http://www.lawfareblog.com/understanding-supreme-courts-carpenter-decision (reporting that the “Court goes back to ‘the critical issue’ of ‘basic Fourth Amendment concerns about arbitrary government power’ that are ‘wrought by digital technology.’”). While many privacy rights advocates celebrated the Carpenter ruling, there are some scholars who believe the decision does not go far enough. Professor Aziz Huq suggests that given the amount in which the Fourth Amendment has so heavily eroded, Carpenter will not as greatly affect police practices as one may initially think. Huq claims that because the probable cause requirement has been watered down to “fair probability,” “Carpenter’s holding that a warrant is required to acquire cell-site locational data is likely to impose no great burden on the police” and will likely be “ineffectual in practice.” See Aziz Huq, The Latest Supreme Court Decision Is Being Hailed as a Big Victory for Digital Privacy. It’s Not., VOX, www.vox.com/the-big-idea/2018/6/22/17493632/carpenter- supreme-court-privacy-digital-cell-phone-location-fourth-amendment (last updated June 23, 2018, 7:43 AM) (addressing Carpenter’s recognition of “a constitutional right to privacy in the locational records produced by your cellphone use.”). 7 Andrew Guthrie Ferguson, Future-Proofing the Fourth Amendment, HARV. L. REV. BLOG (June 25, 2018), https://blog.harvardlawreview.org/future-proofing-the-fourth-amendment. See also Henry Gass, Cell Signal: What High Court Ruling May Mean for Future of Digital Privacy, CHRISTIAN SCI. MONITOR (June 22, 2018), https://www.csmonitor.com/USA/Justice/2018/0622/Cell-signal-What-high-court-ruling-may- mean-for-future-of-digital-privacy. 412 REVIEW OF LAW AND SOCIAL JUSTICE [Vol. 28:3 state court decisions which have ruled against the warrantless use of Stingrays for the necessary analytical framework. The article concludes by advocating for a warrant requirement for the use of Stingrays. I. FOURTH AMENDMENT JURISPRUDENCE AND THE LACK OF POLICE ACCOUNTABILITY IN TRAFFIC STOPS The Fourth Amendment was designed to be a counterweight to the authority of government agents armed with general warrants and writs of assistance to conduct broad and indiscriminate searches with impunity.8 Because of this, it substantively proscribes violations of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . .”9 In addressing the Fourth Amendment’s reach and scope, the Court initially defined “search” and “seizure” solely as physical intrusions.10 In time, Fourth Amendment jurisprudence has evolved with societal changes and technological advances. The Court now uses
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