Breaking: Fed. judge denies motions to suppress in Rigmaiden; 4th Amendment, SCA case with Stingray use by FBI (Updated)

In United States v. Rigmaiden, No. 2:08-cr-00814-DGC (D. Ariz. May 8, 2013), a federal district judge in Arizona denied all of the defendant's motions to suppress. The motions were related to searches, the FBI's use of Stingray, access to stored communications and IP addresses, etc. It is long, but worth the read. An excerpt (relating to the Fourth Amendment argument):

Given the unique circumstances of this case and the case law discussed above, the Court concludes that Defendant did not have a legitimate expectation of privacy in the aircard, laptop, or apartment procured through fraud. Defendant acquired these items by invading the privacy of the persons from whom he stole names, social security numbers, credit cards, and driver’s license numbers. Having utterly disregarded the privacy rights of Travis Rupard, Steven Brawner, and Andrew Johnson, not to mention the many other names used in his scheme, Defendant cannot now credibly argue that he had a legitimate expectation of privacy in the devices and apartment he acquired through the fraudulent use of their identities.

An excerpt (relating to the SCA argument):

Courts have rejected Defendant’s arguments that historical cell-site records cannot be obtained under the SCA. See, e.g., In re Application of U.S., 620 F.3d 304, 313 (3rd Cir. 2010) (holding that cell-site location information “is obtainable under a § 2703(d) order”); United States v. Graham, 846 F.Supp.2d 384, 396 (D. Md. 2012) (“It is well established that Section 2703(c)(1)(B) of the Stored Communications Act applies to historical cell-site location data.”); see also United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012) (holding that locating defendant through a phone’s cell-site records is not a Fourth Amendment search). Contrary to Defendant’s arguments, federal courts consistently rely on Smith and Miller to hold that defendants have no reasonable expectation of privacy in historical cell-site data because the defendants voluntarily convey their location information to the cell phone company when they initiate a call and transmit their signal to a nearby cell tower, and because the companies maintain that information in the ordinary course of business. See United States v. Ruby, No. 12CR1073 WHQ, 2013 WL 544888, at *6 (S.D.Cal. February 12, 2013); Jones, 2012 WL 6443136, at *5 (D.D.C. 2012); Graham, 846 F.Supp.2d at 397-401; United States v. Madison, No. 11-60285-CR, 2012 WL 3095357, at * 8-9 (S.D.Fla. July 30, 2012).

...

Defendant argues that the government was able to use the cell-site information to effectively track his aircard from June 10 to July 18, 2008, a period of 38 days, and that this “prolonged surveillance” implicated his reasonable expectation of privacy. Doc. 824 at 215- 17. Defendant relies on United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), and United States v. Jones, 132 S.Ct. 945 (2012), but those decisions are inapposite. They do not address orders under the SCA, and the Supreme Court in Jones did not adopt the privacy theory advanced by Defendant.

...

In this case, a government agent, working in his office with the historical cell-site information and using mathematical and triangulation techniques, was able to calculate a general location for Defendant’s aircard during a 38-day period. The calculation narrowed the location of the aircard to one-quarter of a square mile. The Court cannot conclude that such use of cell-site information, obtained from a third party under the SCA, is tantamount to attaching a GPS device to a person’s vehicle. Calculations made from the historical cell- site information did not provide minute-by-minute intelligence on Defendant’s precise movements as did the GPS device in Maynard. The calculations merely identified a general area where the aircard was located – and stationary – for 38 days. The information was not used surreptitiously to track Defendant’s movements over an extended period without a warrant. 

For some background, see:

--Kim Zetter, Wired, Secrets of FBI Smartphone Surveillance Tool Revealed in Court Fight

--Vanessa Blum, The Recorder, Emails Detail Northern District's Use of Controversial Surveillance

Update 1:

--Here is the EFF/ACLU Amicus Brief in the case

Update 2:

--Kim Zetter's new post is up: Judge Allows Evidence Gathered From FBI’s Spoofed Cell Tower

Update 3:

--Orin Kerr has his take up, here: District Judges Divide on Long-Term Cell Phone Tracking Under the Fourth Amendment (he also discussed Powell another SCA/4th Amendment case)