Maryland District Judge denies habeas relief for Government use of Stingray, conflating the device with third party CSLI.

In this case, the Defendant sought post-conviction relief under 28 U.S.C. § 2255. He was previously convicted of conspiracy to distribute heroin and possession with intent to distribute heroin. The claim is that the defendant received ineffective assistance of counsel for failing to move to suppress evidence gleaned from the warrantless use of a “Stingray”, also known as a cell-site simulator.

The Court denied the Petition despite the Carpenter decision. In this case, the Petitioner claims that the Government used the device to track his movements while the Government claims the use of the device was limited to identify other possible cell phones used by the Petitioner but does not deny they received location data. The data they received was pursuant to court orders through the Stored Communication Act.

The Court decided that because counsel could not be clairvoyant regarding the Carpenter decision, that counsel could not be ineffective. The Court also invokes the good faith exception, citing cases previously discussed on this blog that have used the exception to defeat Carpenter claims re: CSLI.

The problem here is that the Court is equating a stingray with cell site location data held by a third party telecommunications company as if they are the same when they absolutely are not. While Carpenter discussed the use of a subpoena and a court order (sans warrant) to obtain cell site location records held by a third party, there is no discussion here re: a stingray about a number of subjects, including whether Jones and Riley control here (as Stingrays do not involve third partys), whether Stingrays are covered by the Stored Communications Act at all; whether the Government acts in bad faith when they use a stingray device and fail to make that clear to the judge issuing the SCA order. In fact, no discussion of other cases involving either the legal or illegal use of a Stingray nationwide are discussed at all.

Counsel, when dealing with a Stingray device, must be careful to conflate the device’s use with CSLI held by a third-party as apparently what happened here.

The case is Osiomwan v. United States, 2018 U.S. Dist. LEXIS 200033,
2018 WL 6188372 (D. MD) November 26, 2018.

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