OAKLAND, Calif.—A federal prosecutor seemed to trip up during a Wednesday court hearing in an attempted murder case. The reason? This prosecutor had to explain how cell-site simulators, sometimes known as stingrays, actually operate.

Joseph Alioto, the lead federal prosecutor, initially suggested that the suspect’s mobile phone company, MetroPCS, needed to somehow activate the Oakland Police Department’s stingray immediately following the January 21, 2013 shooting of a police officer. But that’s not how stingrays work—rather, they act as fake mobile phone towers and do not require any affirmative interaction on behalf of any phone company’s network.

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Despite the mistake, the Wednesday hearing may prove to be a crucial one in the ongoing case of United States v. Ellis, where four men are charged with the 2013 attempted murder of local police officer Eric Karsseboom in a parking area near an East Oakland apartment complex. (One of those men, Damien McDaniel, pleaded guilty earlier this year.)

This case has now been running for over three-and-a-half years, and it may finally be entering a new phase: the judge could call for an evidentiary hearing where the intricacies of the stingray are more fully explored. In turn, that could pave the way for a firm trial date or plea deals (which Alioto said remain on the table). Either way, the court's next ruling likely will bring United States v. Ellis closer to its conclusion.

Confusion

Ellis has provided rare insight into how the stingray is used in practice to find suspects and the seeming lengths the government is willing to go to keep it quiet. The surveillance tool has come under increasing scrutiny by lawmakers and activists in recent years. Since this case began, the Department of Justice, which oversees the FBI, and the State of California now require a warrant when a stingray is used in most circumstances.

Moments after Alioto’s slip-up, one of his colleagues tried to step in.


"The cell-site simulator has the ability to simulate a cell tower regardless of what the phone company is doing," Scott Joiner, another Assistant United States Attorney, said.

In a previous hearing two years ago, Alioto firmly denied to the court that there were two stingrays used to locate one of the suspects, Purvis Ellis. This assertion has subsequently turned out not to be true.

Instead, the OPD used its stingray for several hours on January 21, 2013 in an immediate attempt to locate Ellis, who was suspected of being involved in the shooting. When that effort failed, the FBI was brought in. That organization then used its stingray—again without a warrant—to successfully locate Ellis.


Later on in the Wednesday hearing, Martha Boersch, Ellis’ defense attorney, said that Alioto had "confused" the relationship between the law enforcement agency and the phone company.

"The stingray operates completely independently of the phone company," she said. "You do not need a pen register order to operate a stingray. No phone company has to turn anything on."

Pen registers are historical mechanical devices that capture incoming and outgoing calls only. They were the key technological component in a famous 1979 Supreme Court case, Smith v. Maryland, where the court found that there was no "reasonable expectation of privacy" over a criminal suspect's dialed phone numbers. Therefore, no warrant was required.


Prior to the DOJ 2015 warrant requirement, many federal law enforcement agencies argued that the rules and precedents around pen registers simply applied to stingrays as well. According to this line of thought, stingrays were simply collecting calling metadata and location information—not content, which would fall under the more stringent federal wiretap law.



Motion movement

The Wednesday oral arguments were the judge’s first hearing following three May 1 motions: a new motion to suppress all the evidence that was found as a result of the stingray , applying to all three remaining defendants. In addition, Boersch filed a second motion to suppress the evidence found in the four apartments that were searched—including Seminary Avenue apartment complex #112, where Ellis was located—on account of an allegedly defective warrant. Finally, she filed a third motion to sever Ellis' case from the other two remaining co-defendants

US District Judge Phyllis Hamilton did not make any immediate rulings on these motions, but she seemed to indicate that she was not inclined to sever Ellis from the others.

Boersch opened the afternoon court session with exasperation.


"The problem that we have is that the government, despite the pendency of this case for four years, has not provided us with any of the information that we have asked for regarding the stingrays, so we do not know exactly what those stingrays have captured," she said.

"I think that based on the record here, I don’t think the motion can be resolved without an evidentiary hearing. The government in its opposition relies on information that it asserts as facts, and yet those facts are not supported by anything on the record."

Boersch lamented that the government has insisted that its stingrays were configured to act solely like pen registers, but she said the government has not described in detail exactly how it did that.

"How is it that you can configure them to not intercept content?" she said.

The Oakland Police Department did file a pen register order with Metro PCS. That legal order, however, makes no mention of any stingray use.


"Moreover, the paperwork that the government got to cover the use of the stingray is totally, in our view, misleading," Boersch continued.

Either way, she said, the use of the stingray constituted an illegal search.

"What the stingrays do at the very least was [provide] real-time contemporaneous information about who is calling who," she said. "That is information that I would think any one of us would have a reasonable expectation of privacy about. We believe those stingrays captured much more than just dialing information. For that reason we think it was clearly a search and subject to the warrant requirement. So our position in short is the use of the two stingrays in this case, both of them was an unlawful search, there’s no search or paperwork to legally authorize the stingray and any info that was obtained and anything from that should be suppressed."

"Does a pen register tell you where somebody is in real time?"

When the fiery attorney had completed her opening arguments, it became Alioto’s turn. He was equally baffled by how this case has unfolded.

"What she’s indicating now is that the only thing they’re seeking to suppress is information gathered by the device itself," he told Judge Hamilton. "As we’ve been telling the defendants for over a year, there was none."


As he explained, any and all data that the stingray captured was purged upon shutting it off.

"There is a motion to suppress something that does not exist," he continued. "What is astonishing to me is that this motion comes after so many months of litigation about discovery about this device when the information that was provided to the defendant at the very beginning was that there was no information obtained from these devices."

When the judge asked Alioto to address the question as to whether stingrays constituted a Fourth Amendment search, he demurred. It was "not necessary for this court to answer, essentially," he said, because stingrays were something that courts were "grappling with right now." Alioto noted that the issue had not yet been fully resolved in courts of appeal.


"At the end of the day what happens with a device like this, all it does is it obtains the signaling information," he continued. "Apparently it can figure out roughly where somebody is, but that doesn't tell you anything about the person other than his location, and if that constitutes a search is something the courts are grappling with."

Despite this explanation, Judge Hamilton seemed to appreciate the nuances of how stingrays are different from 1970s-era pen registers.

"Does a pen register tell you where somebody is in real time?" she said.

"No," Alito admitted.


"So they’re not the same," the judge pressed.

Even if the court did rule that the stingray use was a search under the Fourth Amendment, Alioto argued that no warrant was required due to exigent circumstances. After all, the Constitution doesn’t forbid all searches, just unreasonable ones. Exigency is the notion in American law that warrants are not needed in "hot pursuit" situations, instances like when bodily harm is occurring or where evidence is at immediate risk of being destroyed.

As the prosecutor explained, when OPD officers arrived in an attempt to locate Ellis, they believed that he had also participated in a different shooting a day earlier and that "he was armed and dangerous and was a member of a violent gang, that he had guns on him, that he had a large arsenal—his specific location was not known."


This, Alioto insisted, created an exigency where a warrant was not needed. Judge Hamilton did not indicate whether she agreed with Alioto’s analysis.

Finally, even if the OPD officers did not have exigent circumstances, Alioto said that the good faith exception applies—no evidence needs to be suppressed—as the officers were acting within the color of the law at the time.

"Before 2015, [federal and state policy] only required them to seek a pen register; they had not been trained in any other way," he explained.


At the end of the hearing, Judge Hamilton urged the two sides to prepare for a possible trial in 2018, but no date was firmly set. The judge is set to rule on the stingray-related motion to suppress, and the other motions, within the coming months.