Florida Appellate Court affirms use of CSLI order based on finding of probable cause, but also affirmed suppression of Stingray evidence.

The Florida Court of Appeals affirmed orders from the trial court which permitted CSLI, but suppressed evidence discovered through the State’s warrantless use of a cell-site simulator, also known as a stingray. The State appealed the court’s order suppressing the search, and the Defendant cross-appealed the court’s finding that the CSLI order was supported by probable cause.

In this murder case which arose from a robbery of a restaurant, the State received an order requiring the Defendant’s cell phone service provider to disclose real-time CSLI for what it believed was the Defendant’s cell phone number. The judge also signed a pen register and trap and trace device order for the Defendant’s phone where the information is transmitted to law enforcement.

During the investigation as they were trying to locate the Defendant, per testimony from law enforcement, they could locate the cell phone to within only a general area, so the officer pinpointed the Defendant’s phone at the residence with the use of a cell-site simulator.

On appeal, the defendant argued that the CSLI Order was unsupported by probable cause because the affidavit did not establish that the cell phone’s location would lead to evidence related to the restaurant robbery. He also argued that the statutes the State relied on when applying for the order do not require probable cause. Because the application for the order alleged that the Defendant was one of three men in surveillance video footage from the robbery and a merchant identified the Defendant as the seller of a watch taken during the robbery, the appellate court ruled the trial court was correct to find probable cause.

The Defendant argued that the acquisition of CSLI was still improper because there was no search warrant, despite the probable cause finding. The Appellate court stated in response that “the content of a court’s order—not the label affixed to it—determines whether a warrant satisfies the Fourth Amendment.”

Regarding the cell-site simulator, the appellate court noted that the device “transform[s] a cell phone into a real time tracking device” (Citing, Staff of Comm. on the Oversight and Government Reform, 114th Cong., Law Enforcement Use of Cell-Site Simulation Technologies: Privacy Concerns and Recommendations (Dec. 19, 2016)). Therefore, there are “significant privacy concerns.”

After reviewing a number of cases, the appellate court held that, “without a warrant, the government cannot: use technology to view information not visible to the naked eye, attach a device to property to monitor your location, search a cell phone in your possession without a warrant, or obtain real-time location information from the cell carrier.”

They decided that the use of the cell-site simulator crosses this line. Based on Carpenter, the appellate court held that a warrant is required for a stingray. They also stated that the pen register/trap and trace order did not satisfy the Fourth Amendment because the order did not include a finding of probable cause and did not authorize location tracking.

The case is State v. Sylvestre, 2018 Fla. App . LEXIS 12671, 2018 WL 4212162 (Fla. Ct. App.) (September 5).

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