Stingray Uber Alles! St. Louis Cops Drop Case Against Robbery Suspects Rather Than Discuss Use Of IMSI Catcher

from the vigorously-enforcing-the-law-(exceptions-may-apply) dept

Thu, Apr 23rd 2015 9:39am — Tim Cushing

According to the FBI and the law enforcement agencies it slaps with restrictive non-disclosure agreements, it's better to have indicted and lost than to not have deployed the Stingray at all.

Just one day before a city police officer was to face questions about a secret device used to locate suspects in a violent robbery spree, prosecutors dropped more than a dozen charges against the three defendants.

The move this month freed the officer from having to testify about a highly controversial surveillance tool — one that is subject to a confidentiality agreement between the St. Louis police and the FBI.

The department insists the Stingray had nothing to do with the dismissal. In fact, the spokesperson doesn't mention the Stingray at all (because one simply mustn't). Instead, it claims that recently uncovered information has "diminished the prosecutive merits of the case." What an odd statement to make when one suspect has already entered a guilty plea in connection with a robbery spree that resulted in the theft of cash and cell phones from seven people in just under two hours.

One of the public defenders assigned to the case believes otherwise. A victim's cell phone was traced to a hotel room using "a proven law enforcement technique." What this "technique" involved was never specified. When asked to explain in greater detail, the St. Louis Police Department called it a day. And now it looks as though it may not even be able to hold onto its single guilty plea.

Defense lawyers scheduled a deposition April 9 to ask an intelligence officer under oath about StingRay. But the charges were dismissed April 8 against all but the female defendant. She had already admitted the crimes and agreed to testify against the others but now wants to rescind her guilty plea.

This is great news for the victims of the crime spree.

Brandon Pavelich, who was pistol-whipped in one of the robberies and required 18 stitches, said he was “shocked” when prosecutors told him the charges were dropped and explained only that “legal issues” had developed.

Sorry 'bout all the stitches, says the FBI. These things will happen, unfortunately, because getting pistol-whipped and relieved of your belongings are integral to protecting this nation against terrorists.

The bureau supplied an April 2014 affidavit from Supervisory Special Agent Bradley Morrison, chief of the Tracking Technology Unit. He wrote that “cell site simulators are exempt from (court) discovery pursuant to the ‘law enforcement sensitive’ qualified evidentiary privilege” and also not subject to freedom of information laws.

Any FBI information shared with local authorities “is considered homeland security information,” he wrote. He warned that targets of investigation could benefit from piecing together minor details, “much like a jigsaw puzzle.”

It's not much of a consolation prize for the victims. In fact, it probably makes things a bit easier for criminals. The "jigsaw puzzle" piece handed over to criminals by this refusal to discuss "techniques" is that cell phone theft has a much better chance of going unprosecuted than criminal activities not involving cell phones. Cell phones are a potential "Get Out of Jail Free" card. Sure, they're also handy tracking devices -- the Narc That Fits in Your Pocket™ -- but if vague but "proven" law enforcement "techniques" are used to obtain warrants or effect arrests, evidentiary challenges and discovery requests have a small chance of resulting in a "screw it" from law enforcement agencies. That's better odds than were in play prior to the widespread use of IMSI catchers.

Certainly the victims of criminal activity are righteous in their anger. But where are the courts? They should be incensed that law enforcement feels it can withhold information from judges and defense attorneys simply because the FBI says so. The FBI doesn't have jurisdiction over courts or law enforcement agencies. The only power it does have is to do what it can to block local law enforcement from obtaining or deploying IMSI catchers if they won't play by its rules.

And where's the DOJ in all of this? It stands to reason the FBI is more concerned with prosecutions than justice, but this is a department wholly dedicated to the premise -- even if its actions often run counter to the "justice" ideal. It sits idly by while its subordinate agency tells law enforcement agencies to conceal Stingray usage and to drop cases rather than risk any national insecurity or additional criminal evasiveness.

This has gone past the point of outrage into the realm of the absurd. Dangerous criminals are being cut loose because certain techniques can't be confirmed or denied -- free to roam the streets like anthropomorphized Glomar responses, only with the potential to cause actual harm, rather than simply acting as existential threats to law enforcement techniques or the nation's well-being.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: law enforcement, stingray, surveillance

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 23 Apr 2015 @ 9:47am

Just think of the man power saved!
Since we are obviously moving towards a state where the evidence collected against you gets to be kept secret, we should just go ahead cut to the chase and let the cops be Judge, Jury, and Executioner...

Courts are now just a formality.
[ link to this | view in chronology ]
- PRMan, 23 Apr 2015 @ 10:20am
  
  Re: Just think of the man power saved!
  Somebody hasn't been watching YouTube lately...
  [ link to this | view in chronology ]
- Anonymous Coward, 23 Apr 2015 @ 10:24am
  
  Re: Just think of the man power saved!
  Who needs a judge and jury? They're already the executioner.
  [ link to this | view in chronology ]
Anonymous Coward, 23 Apr 2015 @ 9:50am

Anybody with a functioning brain cell now assume that carrying a mobile phone allow them to be tracked, and all their use of the phone to be monitored if they come in range of a stingray. Revealing this formally in court will not affect any criminals use of phones. Therefore there is something about stingray use that if revealed will result in the police losing them, so it seems reasonable to now demand that they give them up.
[ link to this | view in chronology ]
Anonymous Anonymous Coward, 23 Apr 2015 @ 10:00am

Implementation
The FBI either needs to come up with a way to explain the whole 'stingray' phenomena without revealing 'sources and methods' or they have to become a whole lot better at the whole 'parallel construction' thingy.

Yup, neither is gonna happen, which means that any criminal with a halfway conscious attorney will go free. See how safety and security go hand in hand?
[ link to this | view in chronology ]
Anonymous Coward, 23 Apr 2015 @ 10:00am

I'm fairly certain these selective law enforcement situations have more to do with government agencies being afraid of legal challenges to the likely unconstitutional means and methods of their Stingray use. And less to do with preventing classified information from being released.

Probably the only classified information the public doesn't know about when it comes to Stingrays. Is how government agencies are flying Stingray equipped drones over people's houses and reprogramming people's phones with malware and spyware for targeted surveillance.

All possible thanks to the NSA stealing the private SIM card keys for everyone's phones from Gemalto. As reported by The Intercept.

https://firstlook.org/theintercept/2015/02/19/great-sim-heist/

Private SIM keys + Stingray equipped UAVs = Total Pwnage of any cellphone phone in the world
[ link to this | view in chronology ]
- James Burkhardt (profile), 23 Apr 2015 @ 10:51am
  
  Re:
  A) the government prefers dragnet survalence to targeted surveillance, B) by having the SIM encryption keys, they don't need malware to surveil your phone, and 3) If they can install malware on your phone wirelessly from a drone, its unlikely the SIM card encryption, which involves how the phone talks to the network, is of any benefit.
  [ link to this | view in chronology ]
  - Anonymous Coward, 24 Apr 2015 @ 12:16am
    
    Re: Re:
    A) targeted surveillance still has great value, B) if someone is using end-to-end encryption software apps on their phone, law enforcement would need malware on their phone, and 3) SIM card keys allows law enforcement to issue remote commands, reflash the phone's firmware, and pretend to the wireless carrier, which is of great benefit.
    [ link to this | view in chronology ]
avideogameplayer, 23 Apr 2015 @ 10:04am

I'm waiting for the day when a high level official is the victim and won't get 'justice' because law enforcement refuses to prosecute the crime...
[ link to this | view in chronology ]
- That One Guy (profile), 23 Apr 2015 @ 2:19pm
  
  Re:
  May I present, 'Evidence laundering', also known as parallel construction. 'We didn't get that evidence from a stingray, we got it from another source, one we also can't disclose the details of.'
  [ link to this | view in chronology ]
I *wish* I were anonymous, 23 Apr 2015 @ 10:23am

Were I inclined to such criminal activity, I might carry a couple of phones on different carriers, just to ensure the StingRay could find me.

Get arrested, tell my public defender to schedule a deposition and mention the device, and walk away with my ill-gotten gains.

For a while, anyway.
[ link to this | view in chronology ]
Tavis, 23 Apr 2015 @ 10:34am

So....
If IMSI cell site simulators can not be used to lead to a conviction, they are useless to law enforcement. It is a waste of money better spent on more effective measures.
[ link to this | view in chronology ]
David, 23 Apr 2015 @ 10:55am

Parallel construction anybody?
If Stingrays are not to be mentioned in court cases, the only way they are useful is after evidence laundering, namely parallel construction.

Which is illegal. So there are no legal means of employing Stingrays for law enforcement. Which means that a police department buying one should be treated the same as a police department buying a pound of cocaine. Even if they do it on "unaccounted" money from asset forfeitures.
[ link to this | view in chronology ]
AnonCow, 23 Apr 2015 @ 10:59am

It looks like SLPD needs a refresher course in writing arrest reports that talk around Stingray use. What is the phrase "alternative construction" or something like that.
[ link to this | view in chronology ]
Anonymous Coward, 23 Apr 2015 @ 11:01am

What's the point of using it, if you're going to drop the case as soon as someone starts asking questions?

Defeats the entire point of catching the criminal in the first place.
[ link to this | view in chronology ]
- Anonymous Coward, 23 Apr 2015 @ 11:13am
  
  Re:
  Stingrays have been in use since 2007 according to what I've read. We've only heard about their use in the past couple of years or so. So they've likely had a fair number of convictions already based on their use.
  
  Deploying a Stingray in a criminal investigation today is certainly risky business. Ideally, the Stingray is used as preliminary investigation tool that allows police to surveil long enough to find some other probable cause for an arrest (aka parallel construction) and then the Stingray is never mentioned as the means they used to obtain probable cause.
  [ link to this | view in chronology ]
- Padpaw (profile), 23 Apr 2015 @ 2:48pm
  
  Re:
  well obviously questioning the police on anything means you are supporting terrorism. Only unpatriotic people would question the police. This is what the police expect from loyal citizens, blind eyes and zipped mouths.
  
  /sarcasm
  [ link to this | view in chronology ]
Haggie, 23 Apr 2015 @ 11:01am

That is a really nice feature upgrade. Now the phone that got you arrested will also set you free!
[ link to this | view in chronology ]
- Anonymous Coward, 23 Apr 2015 @ 11:37am
  
  To bring John 8:32 to the modern day...
  The truth will set you free, because the truth must not be revealed in court.
  [ link to this | view in chronology ]
DannyB (profile), 23 Apr 2015 @ 11:52am

How to commit the perfect crime
1. Commit crime
2. If caught, have your lawyer ask for access to the Stingray evidence
3. Case not prosecuted in order to preserve secrecy of Stingray
[ link to this | view in chronology ]
Personanongrata, 23 Apr 2015 @ 12:32pm

Oath Swearing Frauds, Who Needs Them?
This has gone past the point of outrage into the realm of the absurd. Dangerous criminals are being cut loose because certain techniques can't be confirmed or denied -- free to roam the streets like anthropomorphized Glomar responses, only with the potential to cause actual harm, rather than simply acting as existential threats to law enforcement techniques or the nation's well-being.

This exposes these law enforcement entities as the frauds they truly are.
[ link to this | view in chronology ]
PopeRatzo (profile), 23 Apr 2015 @ 1:07pm

Are we not doing phrasing?
‘law enforcement sensitive’ qualified evidentiary privilege

Holy shit. 'law enforcement sensitive' qualified evidentiary privilege

Jesus wept.
[ link to this | view in chronology ]
Anonymous Coward, 23 Apr 2015 @ 1:32pm

This is beyond suspicious
Every local law enforcement has been handling these cases exactly the same. We know they get guidance from the FBI and US Marshalls on how to respond. But what are their worst fears? We pretty much know how these devices operate. So I see two non-exclusive options here.

1) These devices do more than we are aware of or are part of a greater surveillance program

2) The use of these devices is illegal and bringing a case against the evidence gained by using them would cause a prohibition or restriction on their use

Either way, this behavior is extremely concerning. But who do we ask for help when the perpetrators are law enforcement?
[ link to this | view in chronology ]
- Padpaw (profile), 23 Apr 2015 @ 2:46pm
  
  Re: This is beyond suspicious
  crazy trigger happy nuts? they will get rid of the dirty cops one way or another if the "official" way is dirty as well in regards to arresting these dirty cops
  [ link to this | view in chronology ]
TasMot (profile), 23 Apr 2015 @ 1:49pm

Law enforcement agencies are servants of the Citizens and yet are being allowed to hide contracts from the ones they serve?
One of the problems I see that is not being addressed is that the police departments are agents of the citizens. They are writing contracts that then hide the terms of the contracts from the very ones they represent. Police departments and other law enforcement agencies are not some independent company. They are representatives of the citizens and are writing contracts as their agents. They SHOULD not be allowed to hide the terms of those contracts and their methods from the very citizens they represent.
How do the citizens start reigning in these rogue agencies that are supposed to protect and preserve and yet seem to be more attack and destroy and hide the methods organizations.
[ link to this | view in chronology ]
- Padpaw (profile), 23 Apr 2015 @ 2:45pm
  
  Re: Law enforcement agencies are servants of the Citizens and yet are being allowed to hide contracts from the ones they serve?
  police act more like the mob than police
  [ link to this | view in chronology ]
Zonker, 23 Apr 2015 @ 2:06pm

So does this mean that in a future terrorist attack where thousands of people are killed and a IMSI catcher (Stingray) is used to track the terrorists down, that even as the suspects claim credit for the attack the DOJ will have to drop the terrorism charges when their defense attorney questions the "proven law enforcement technique" used to find them?

If so, how would the Stingray even be of use for its claimed benefit of preventing terrorism or prosecuting terrorists? It seems the only one who benefits from the use of Stingrays is the company that builds and sells them.
[ link to this | view in chronology ]
- Doc, 25 Apr 2015 @ 1:28am
  
  Re:
  The fed/state/local governments and judges/attorneys benefit due to illegal prosecution. Even if you get off, you still must pay bail (which they keep until after sentencing), legal, and court fees - all of which keeps them in business. Even the local lawyers get business from illegal prosecution. Have you ever heard of anyone getting all of their money back for being found innocent? In MOST cases, being found innocent (getting a lawyer smart enough to know about stingray) will cost MUCH more then some idiot public defender that's just playing the "plead guilty & rack up the fines or put them in jail" game. Either way the gub'ment wins.
  [ link to this | view in chronology ]
Padpaw (profile), 23 Apr 2015 @ 2:44pm

can we charge the prosecutor and police with a crime then? If they had done nothing wrong then why are they so desperate to hide it.
[ link to this | view in chronology ]
orbitalinsertion (profile), 23 Apr 2015 @ 4:04pm

In other words, Stingray is ,i>only good for improper use, since charges against actual dangerous criminals get dropped when the data collection method must be revealed. All that money and time for negative outcomes. What will they think of next? How else can we let violent criminals and thieves walk while preserving the privilege to maim and kill random citizens for contempt-of-cop?
[ link to this | view in chronology ]
Pragmatic, 24 Apr 2015 @ 2:33am

Dangerous criminals are being cut loose because certain techniques can't be confirmed or denied -- free to roam the streets like anthropomorphized Glomar responses, only with the potential to cause actual harm

Criminals, you know that movie, The Purge? Turns out it's real until we let the cops have Stingray and stop arguing about the Constitution.
[ link to this | view in chronology ]
Anonymous Coward, 24 Apr 2015 @ 5:09am

Ahh, good old Harris-FBI NDA.
Once again being proven to be supreme to justice, laws and constitutions.
[ link to this | view in chronology ]
Todd Shore (profile), 27 Apr 2015 @ 1:22pm

Guilty plea withdrawn
The person who had guilty has now withdrawn her guilty plea.

It is interesting that the prosecutors office would give in to the political pressure to drop these charges when they can compel the officers to testify.
[ link to this | view in chronology ]