Prosecutors drop key evidence at trial to avoid explaining “stingray” use
Baltimore Police detective refused to tell court how suspect's phone
was found.
*by Cyrus Farivar **
**Ars Technica**
**
**Nov 18 2014, 12:50pm CST*
http://arstechnica.com/tech-policy/2014/11/prosecutors-drop-key-evidence-at-trial-to-avoid-explaining-stingray-use/
p | m <https://www.flickr.com/photos/rumbles/14153224240>
In a Baltimore trial courtroom on Monday, a local judge threatened to
hold a police detective in contempt of court for refusing to disclose
how police located a 16-year-old robbery suspect’s phone. Once the
Baltimore Police were able to locate Shemar Taylor’s phone, they then
searched his house and found a gun as well.
But rather than disclose the possible use of a stingray, also known as a
cell site simulator, Detective John L. Haley cited a non-disclosure
agreement, likely with a federal law enforcement agency (such as the
FBI) and/or the Harris Corporation, since the company is one of the
dominant manufacturers of such devices. Stingrays can be used to
determine a phone’s location, and they can also intercept calls and text
messages.
Baltimore Circuit Judge Barry G. Williams
<http://msa.maryland.gov/msa/mdmanual/31cc/html/msa14461.html> retorted,
"You don't have a nondisclosure agreement with the court," according to
the /Baltimore Sun/
<http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-stingray-officer-contempt-20141117-story.html>.
The prosecution then withdrew the evidence of the phone and gun but said
it would still pursue the case. Neither Assistant State's Attorney
Patrick R. Seidel nor defense attorney Joshua Insley immediately
responded to Ars’ request for comment. Angelita Plemmer Williams
<http://www.courts.state.md.us/communications/>, a spokeswoman for the
State of Maryland Judiciary, told Ars that Judge Williams was prohibited
under court rules from speaking to the press “on pending cases that may
still be appealed.”
According to the /Sun/, Haley also told the court that the Baltimore
Police was not using a stingray, but Insley “still believes that police
used a stingray to find Taylor.”
Pushback begins slowly
Relatively little is known about how stingrays
<http://arstechnica.com/tech-policy/2013/09/meet-the-machines-that-steal-your-phones-data/>
are used by law enforcement agencies nationwide, although documents have
surfaced showing how they have been purchased and used in some limited
instances.
<http://arstechnica.com/tech-policy/2014/06/how-florida-cops-went-door-to-door-with-fake-cell-device-to-find-one-man/>
Last year, Ars reported on leaked documents showing
<http://arstechnica.com/security/2013/09/the-body-worn-imsi-catcher-for-all-your-covert-phone-snooping-needs/>
the existence of a body-worn stingray. In 2010, Kristin Paget famously
demonstrated
<http://www.computerworld.com/s/article/9179959/Hacker_snoops_on_GSM_cell_phones_in_demo>
a homemade device built for just $1,500.
In recent months, some new information has trickled
<http://arstechnica.com/tech-policy/2014/06/how-florida-cops-went-door-to-door-with-fake-cell-device-to-find-one-man/>
out as the result of public records lawsuits in various
jurisdictions—particularly Florida. In September 2014, new documents
released
<http://arstechnica.com/tech-policy/2014/09/cities-scramble-to-upgrade-stingray-tracking-as-end-of-2g-network-looms/>
by the City of Oakland, California revealed that it is one of a handful
of American jurisdictions attempting to upgrade an existing cellular
surveillance system.
Harris Corporation, makers of the StingRay and other related devices,
has traditionally refused to speak with Ars about its products. "We do
not comment on solutions we may or may not provide to classified
Department of Defense or law enforcement agencies," Jim Burke, a
spokesman for Harris, previously said.
Earlier this year, the American Civil Liberties Union found that at
least in Florida, law enforcement had signed similar agreements
<http://arstechnica.com/tech-policy/2014/03/police-hid-use-of-cell-phone-tracking-device-from-judge-because-of-nda/>
with the Harris Corporation. Worse still, cops were actively lying to
courts about their use
<http://arstechnica.com/tech-policy/2014/06/legal-experts-cops-lying-about-cell-tracking-is-a-stupid-thing-to-do/>—asking
a judge to sign off on a “pen register/trap and trace” order, which is
far less invasive than a stingray.
Due to some recent reporting in Tacoma, Washington, judges in Pierce
County are now requiring
<http://arstechnica.com/tech-policy/2014/11/judges-impose-rare-stricter-requirement-for-stingray-use-by-police/> that
law enforcement seek specific permission when requesting to use a
stingray as of this week.
*UPDATE 2:45pm CT*: Hanni Fakhoury, a lawyer with the Electronic
Frontier Foundation, and former federal public defender, told Ars that
judge's typically do not like such evasive action by witnesses.
"It's also a remarkable bit of chutzpah for the officer to refuse to
answer the questions when sworn under oath in a proceeding," he wrote by
e-mail.
"[The detective] may have been following orders but its ridiculous that
superiors, whether police or prosecutors, direct officers to evade
answering questions about surveillance technology that is now widely
known about. Its even more remarkable the prosecutors simply chose to
not use the evidence rather that disclose details about it. That says a
few things: first maybe we don’t really need the surveillance if the
government can prove a criminal case without the evidence they gather
from it (though that remains to be seen in this specific case). Second,
that the technology must really be capable of some remarkable things if
the government is so desperate to keep it under wraps."
Brian Owsley, a former federal judge and current law professor at
Indiana Tech, told Ars he was not aware of another instance of any law
enforcement using a non-disclosure agreement "as a shield."
"It is common knowledge that state and local law enforcement agencies
are purchasing this technology with grants from the Department of
Homeland Security," he wrote. "In exchange for the grants, the agencies
must sign the nondisclosure agreement. As courts delve into these Fourth
Amendment issues more, there will be more confrontations between the
Constitution and the agencies’ obligations pursuant to the agreements.
One significant remedy is that prosecutors may lose evidence because
judges suppress it due to the lack of a search warrant"
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