According to new government affidavits filed earlier this week, the Oakland Police Department (OPD) used its stingray without a warrant in 2013 for several hours overnight as a way to locate a man accused of being involved in shooting a local police officer. The OPD called in the FBI when that effort was unsuccessful. The FBI was somehow able to locate the suspect in under an hour, and he surrendered to OPD officers.
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The government has argued that while two stingrays were used to locate Ellis, it did not need a warrant given “exigent circumstances,” a particular situation that provides an exception to the 4th Amendment. According to American criminal procedure law, an exigent circumstance involves imminent bodily harm or injury, the destruction of evidence, or the flight of a suspect.
Prosecutors argued that because the three men involved in the altercation were at large, there was a clear exigency. Ellis’ defense, meanwhile, has countered that because the OPD had declared the scene “secure” 14 minutes after Karsseboom was shot, there was no exigency. This issue remains unresolved.
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The OPD officer wrote that she or he was alerted to the incident at 6:40pm and was told to respond. But given that the officer was off-duty, and as most OPD officers live outside the city, the officer told the court that it would have taken up to two hours to return to Oakland. By the time the officer arrived on the scene with what seems to have been an OPD surveillance van, it was around 9:00pm.
The Oakland cop wrote that her or his team finally turned on the stingray at about midnight, in the early morning hours of January 22.
The officer continued:
Prior to operating the cell site simulator, OPD first contacted the telephone carrier of the subject cellular telephone and completed the required exigent circumstance request form to obtain a pen register/trap trace and subscriber information for phone number 510-904-7509 to assist in locating the cellular telephone with the cell site simulator. I did not begin operating the device until after OPD obtained this information from the telephone provider.
Prosecutors did not respond to Ars’ request for further information about how authorities obtained Ellis’ number, why he was targeted, or how long the OPD's stingray was in operation.
It's likely that the “subscriber information” MetroPCS provided included not only the name on the account but also the IMSI number associated with that number, which allowed the stingray to begin its search. The affidavit seems to suggest (but does not outright say) that the OPD stingray was in operation continuously for nearly 10 hours.
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