Strengthens Protections Against Cell Phone Tracking

In the federal drug trafficking case United States v. Lambis, the use of evidence from a cell phone tracker has been controversial. Dubbed the StingRay by its manufacturers, the device mimics the activity of a cell tower.

Phones send data to it and receive signals from it just as they would with a real tower. By measuring signal strength, a StingRay can tell roughly how far away the phone is. And by taking measurements from different places, the phone’s location can be pinpointed.

StingRays allow law enforcement to intercept message contents and metadata from phones and other devices within their range, in addition to location tracking.

Through a warrant served to the the defendant’s service provider, the DEA were able to find unique identifiers tied to his cell phone. With this information they estimated the location, and then used the StingRay to track him down.

Without information gained through the warrant, the DEA wouldn’t have been able to use the Stingray to find Lambis.

After learning his approximate location from the service provider, a DEA technician was able to find his apartment building, and ultimately his apartment, using the StingRay.

After finding Lambis, DEA officers received permission from the occupants to enter and then search the apartment. During this search officers discovered drugs and drug paraphernalia that became evidence in the case.

On July 12, the court approved the defendant’s motion to suppress the evidence, concluding that the search violated his fourth amendment rights.

Judge William H. Pauley III reasoned that the DEA should have obtained a warrant before using the StingRay, writing “Absent a search warrant, the government may not turn a citizen’s cell phone into a tracking device.”

In the order to gran the defense’s motion, the judge cited a supreme court case that concerned the use of evidence obtained through thermal imaging. In that case, Justice Scalia delivered the opinion that—

“[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”
–Case Summary

Judge Pauley, of the district court of southern New York, applies the same logic to the StingRay.

The prosecution supported the DEA’s actions, comparing the StingRay to a drug-sniffing dog, but the court concluded that cell trackers can be used to find anyone; whereas a dog only finds people carrying contraband.

Beating a Breath Test

It is important to know how breath tests work, what their flaws are and how these factors impact results. How an inaccuracy affects the results of a test is important in knowing how to challenge the test as evidence. Various factors affect the usefulness of these test results as evidence to include the officer’s use and maintenance of the devices.

When the machines are not properly maintained, results of any test on any person may be between slightly off and completely incorrect. Standard protocols in calibration are required as well that ensure the devices are working within set parameters. If these are not applied, the results cannot be used as evidence. Errors in readings may cause a dismissal of the case due to lack of evidence or the lack of being able to prove intoxication. Other evidence may still be used, but breathalyzer tests are often the main piece of evidence used for conviction and convincing a judge or jury of the guilt of drivers.

Penalties for Conviction

The reason beating a breath test is so important in most cases is often due to the penalties someone is usually subjected to once conviction occurs. Various cases end quickly after a breathalyzer or a blood test has confirmed to a judge or jury that the person driving was also drinking before or during the drive. For DUI convictions, penalties may range from a simple term of probation for first offenses to include community service up to and including jail or prison terms with hefty fines. For any special plea bargains with a first offense conviction, the person may feel lucky considering the various strict and costly penalties he or she could be subjected to for these crimes.

Avoiding conviction by disqualifying a breath test is important in many instances. The act of causing a breath test to be inadmissible is not always easy, but with a knowledgeable criminal defense lawyer, a strategy may be initiated to find the flaws in the case when dealing with these tests.

Breath Tests Flaws

Even though a portable breath test may be used in the field, these devices are highly unreliable with potential to show a completely inaccurate reading. However, they are often enough to bring a person in on an arrest for DUI violations. When another breath test is administered in the department building, these machines may also reveal incorrect results based on various factors. When the legal alcohol blood content level is .08 nationally, it is important these machines only show accurate results. Unfortunately, these devices have been tested to have over a 40 percent error margin that causes numerous differences in test results. This could be up to a .03 percent addition to the result causing a legal driver to become someone considered to be driving under the influence.

For those unaware of how implied consent works, these individuals may be permitting a preliminary or portable alcohol screening test to be completed in the field when pulled over even if they are not legally obligated to do so. Those that are allowing these tests may not be aware of their rights or when they can refuse to take a test. The tests in the building must be allowed or a refusal usually leads to driver’s license suspension. And though a refusal while in the field may lead to an arrest, a criminal defense lawyer may suggest taking the second breath test at the police department as the portable devices are riddled with errors and false readings.

Challenges to Breath Tests

Results of various chemical tests may have altered results based on how they were administered and who administered them. Many states require those giving these tests to be trained in proper administration, but not all have the same skill in ensuring tests are given the same each time. Instructions for how to take the test may also be inaccurate for some individuals and cause a false reading. Challenging these tests is vital in some cases to ensure innocence is maintained, especially for those that were not drinking before or during the drive.

Not all tests are created equal. Some have histories of errors; others have complications with calibration. It is essential to ensure a criminal defense lawyer is obtained early to assist with knowledge and also in taking the tests. Later challenges may be discussed and a strategy initiated to discredit these tests that often have inaccurate results. A criminal defense lawyer can help establish a legal defense that is premised on these notions.

The Motor Vehicle Division

Cases before the Motor Vehicle Division or similar entity are typically administrative proceedings. They are not as formal as criminal cases. An administrative law judge may decide the case after a hearing requested by the defendant. The judge is responsible for determining whether the license should remain suspended or not.

Some states automatically suspend a driver’s license upon a DUI arrest. However, this suspension may be stayed if a request for a hearing is made within the appropriate amount of time. Ordinarily, there is a very limited amount of time to request a hearing in front of the appropriate administrative agency, typically within 10 to 15 days, depending on state law. Other states allow the suspension to stay in place until the decision regarding the suspension is made.

Implied Consent Laws

Many states have implied consent laws that require a person to consent to a chemical, breath or field sobriety test if he or she is pulled over for suspicion of DUI or upon arrest as a condition of receiving a driver’s license, depending on the state’s specific laws.

Process of Motor Vehicle Division Cases

After the hearing is requested, a date is set. The defendant can retain the services of a DUI lawyer to represent his or her interests at the case. The hearing usually starts out with the arresting officer providing testimony about the reasons for the stop, what tests were conducted, the results of the test and which procedures were followed. After this testimony, the defendant’s lawyer may cross-examine the witness. During this time, the officer may make statements that call his or her credibility or the test results into question. In other instances, the officer may make conflicting testimony during this hearing that may be used later to negotiate a plea bargain or dismissal for the criminal charges.

The DUI lawyer can also challenge evidence, raise legal arguments, subpoena witnesses and take other steps to help protect the defendant’s driving privileges. After the hearing concludes, the administrative law judge issues a decision in which he or she upholds the suspension or lifts it.

Issues in Administrative Cases

Administrative cases involving license suspensions due to DUI may involve many legal issues, beginning from the start of the encounter until well after arrest. The first issue may be whether the officer who initiated the traffic stop had reasonable suspicion that the driver was driving while under the influence of alcohol or drugs. Additionally, the rules regarding implied consent may be taken into consideration, such as whether the driver is subject to an automatic suspension for refusing a test required by law. The agency may consider whether the defendant refused a test and if he or she was made aware of the consequences for refusal.

The administrative agency may also inquire into the tests that were administered and how these tests were administered. The agency may also assess whether the defendant was placed under arrest due to a DUI charge. Of particular importance is whether the officer initiated a test that showed a BAC over the legal limit, usually 0.08 percent or more. If the arrest was on a commercial driver who was driving a commercial vehicle at the time of arrest, the relevant level is 0.04 percent. In zero tolerance states in which someone under 21 is pulled over, a reading of 0.02 or 0.01 can be over the legal limit, depending on state law. The agency may consider whether the testing method was valid and can be relied on. Additionally, it may also consider whether the determination of test results was evaluated.

Legal Assistance

Losing an administrative hearing can result in significant consequences. Losing this hearing may result in the loss of driving privileges for many months or even years. In some instances, a person may not be eligible to receive a hardship license that may otherwise permit driving to work, school or the doctor. With such significant risks on the line, many individuals who are confronting administrative hearings may hire a DUI lawyer to represent their interests in hearings of this nature. He or she can explain the benefits of requesting a hearing of this nature.

Experienced criminal defense lawyer

DUI violations tend to have swift arrests based on the observations of the law enforcement officer that pulls the driver over. These observations are usually based on the behavior of the driver, how he or she performs the field sobriety tests and if he or she allows the portable breath tests. The officer is usually stationed at a lawful sobriety checkpoint or checking passing vehicles in routine stops based on speed or other observable actions. If the driver has bloodshot eyes, slurs his or her words or appears inebriated, all of these lead to the officer to either perform other tests or arrest the individual immediately.

When the officer is still unsure if the person operating the vehicle is intoxicated, he or she usually administers numerous varied field sobriety tests to determine if his or her initial suspicions were correct. If failure of the tests occurs, the officer may arrest the individual or administer a portable breath test. This preliminary alcohol screening tests the blood alcohol content to determine if it is over the legal limit of .08 percent.

Why a Stop Would be Unlawful

Once the driver has been arrested, he or she may run through the previous actions to understand where the event turned against his or her favor. What actions led to an arrest and suspicion the driver was intoxicated when no alcohol was consumed. After the arrest and Miranda Rights are read, the accused individual may obtain a criminal defense lawyer. It is at this point the hired lawyer may explain how the stop was illegal.

When a person is operating a vehicle, it is the behavior he or she exhibits during the drive that often tips off an officer that the driver is intoxicated. This leads the officer to perform subsequent tests. However, when no suspicion is available, the law enforcement agent should not be stopping drivers. Reasonable suspicion is absent in these instances, and no observable behavior is present. The driver may have crossed lanes once or twice to pass or to turn, but not swerving occurred. No sudden or immediate increase or decrease in speed occurred. This in turns removes any possible suspicion of intoxication. Without any type of probable cause, the officer is not legally permitted to pull the driver over.

Late Night Driving

Many individuals drive late or overnight for numerous reasons. When vehicle operators drive long distance at night, some law enforcement officers stop them because it is late at night instead of any possible intoxicating behavior. Even when some of these instances lead to drivers that have consumed alcohol, these are considered illegal stops. The officers pulled the driver over on the bias of him or her being a late-night driver.

Observed Behavior

Law enforcement officers often park near or by a bar, nightclub or related business. In order for the officer to legally pull over any leaving drivers or make an arrest, there must be suspicion the person has been drinking enough for his or her BAC to surpass the legal limit. Actions may be those going to the vehicle or once the person has started driving. When someone is inebriated, his or her driving is usually affected immediately. This shows nearby law enforcement agents that he or she should not be driving and an arrest is usually completed quickly.

Holidays, weekends, late nights and drinking establishments often draw police officers to observe those leaving. The behavior they observe from those leaving these areas or during these days often give probable cause through suspicion. DUI violations are usually discovered among these individuals in many instances. This allows a reason for pulling them over and when proved to the officer, the driver may be arrested for DUI offenses.