Police illegally used secret cellphone tracking device

State court upholds ruling against Boca

It turns out more than just old-fashioned police work helped detectives make one of three arrests in the 2013 killing of a popular Boca Raton restaurant bartender.

The cops used an ultrasecret device called a “StingRay” that allowed them to track a suspect’s cellphone and get private information about his whereabouts, according to a state appeals court opinion released Wednesday.

And because they did it without a proper warrant, all of the evidence collected from the Fort Lauderdale defendant’s residence now can’t be used in the man’s robbery and murder trial, said a panel of three judges with the Fourth District Court of Appeal.

The decision affirmed an

earlier Palm Beach County Circuit Court ruling that the government crossed the line while investigating the killing of Josephine’s Restaurant worker Rafael Rodriguez, 46.

“It’s a big win for us,” defense attorney Peter Grable, who represents Quinton Redell Sylvestre, told the South Florida Sun Sentinel. “This was secret government stuff. It’s frightening equipment when you consider what’s inside a smart phone.”

Thanks to the opinion in the Sylvestre case the cloak has been lifted a bit.

This tool largely is a mystery to the public but has been used for years by law enforcement as a “cell-site simulator” — it basically pretends to be a cellphone tower.

It means an individual’s phone is communicating with police rather than an actual cellphone tower, without the user ever knowing it.

People can be tracked, personal information can be gleaned easily, and privacy interests are threatened, according to recent U.S. Supreme Court decisions cited by the Florida court.

“Together these cases hold 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 cellphone in your possession without a warrant, or obtain real-time location information from the cell carrier,” Judge Jeffrey T. Kuntz wrote.

“With a cell-site simulator, the government … surreptitiously intercepts a signal that the user intended to send to a carrier’s cell-site tower or independently pings a cellphone to determine its location,” Kuntz continued. “Not only that, a cell-site simulator also intercepts the data of other cellphones in the area, including the phones of people not being investigated.”

It would be allowed if the police first obtained a warrant signed by a judge, based on evidence showing a person is believed to have committed a crime.

In this case, the Broward Sheriff’s detective did not get a warrant to use the device to track down Sylvestre, then 26.

But investigators did properly obtain a court order allowing the use of realtime cell tower information to locate Sylvestre’s phone.

That order was based on surveillance video footage showing Sylvestre allegedly participating in the robbery with two other men. Also, Sylvestre was identified as the seller of a $20,000 ladies’ Chopard watch, records show.

But a sergeant testified that the cell tower information only narrowed the location of the cellphone to a general area covering several blocks. So the sergeant used the cell-site simulator and got the precise location.

Then, police got a search warrant for Sylvestre’s residence.

Detectives searched the home and “found a black backpack containing three firearms, a mask, ammunition, and a stun gun,” the appeals court opinion said. It’s not clear if any of those guns were used in the bartender’s murder.

Once the detectives got the evidence, they tracked Sylvestre’s cellphone and arrested him while he was driving into Palm Beach County.

Grable, Sylvestre’s lawyer, said he hired a telecommunications expert who helped to uncover the use of the secret device and fight for the evidence to be thrown out.

“This is an important issue that will affect how the case is tried,” Grable said, adding that prosecutors still have more evidence to show a jury.

But Grable is pleased that a government tactic has been exposed, and he wonders how individual privacy is being violated.

“No one knows how much information this technology can get,” he said.

A 2015 report by the U.S. Department of Homeland Security cites the privacy concerns, yet notes the cellsite simulators “are invaluable law enforcement tools that locate or identify mobile devices during active criminal investigations.”

Along with Sylvestre, two other Broward men are charged with first-degree murder in the restaurant slaying: Samuel Magic Walker, 33, of Lauderdale Lakes, and Adalberto Junior Montalvo, 34, of Pompano Beach.

The victim was left to die outside the Federal Highway eatery’s back door when one of the robbers shot him in the mid-section after robbing him and five other people, police said.

“The successful resolution of this case is a result of outstanding inter-agency cooperation, use of technology, great crimescene processing and goodold fashioned police work,” Boca Raton Police Chief Dan Alexander said at a news conference announcing the arrests.

“No one knows how much information this technology can get.”

Peter Grable, defense attorney