Police secretly track cellphones to solve routine crimes
Police secretly track cellphones to solve routine crimes
By Brad Heath, USA TODAY 7:51 a.m. EDT August 24, 2015
BALTIMORE — The crime itself was ordinary: Someone
smashed the back window of a parked car one evening and ran off with a
cellphone. What was unusual was how the police hunted the thief.
Detectives did it by secretly using one of the
government’s most powerful phone surveillance tools — capable of intercepting
data from hundreds of people’s cellphones at a time — to track the phone, and
with it their suspect, to the doorway of a public housing complex. They used it
to search for a car thief, too. And a woman who made a string of harassing
phone calls.
In one case after another, USA TODAY found police in
Baltimore and other cities used the phone tracker, commonly known as a
stingray, to locate the perpetrators of routine street crimes and frequently
concealed that fact from the suspects, their lawyers and even judges. In the
process, they quietly transformed a form of surveillance billed as a tool to
hunt terrorists and kidnappers into a staple of everyday policing.
The suitcase-size tracking systems, which can cost as
much as $400,000, allow the police to pinpoint a phone’s location within a few
yards by posing as a cell tower. In the process, they can intercept information
from the phones of nearly everyone else who happens to be nearby, including
innocent bystanders. They do not intercept the content of any communications.
Dozens of police departments from Miami to Los Angeles
own similar devices. A USA TODAY Media Network investigation identified more
than 35 of them in 2013 and 2014, and the American Civil Liberties Union has
found 18 more. When and how the police have used those devices is mostly a
mystery, in part because the FBI swore them to secrecy.
Police and court records in Baltimore offer a partial
answer. USA TODAY obtained a police surveillance log and matched it with court
files to paint the broadest picture yet of how those devices have been used.
The records show that the city's police used stingrays to catch everyone from
killers to petty thieves, that the authorities regularly hid or obscured that
surveillance once suspects got to court and that many of those they arrested
were never prosecuted.
Defense attorneys assigned to many of those cases said
they did not know a stingray had been used until USA TODAY contacted them, even
though state law requires that they be told about electronic surveillance.
“I am astounded at the extent to which police have been
so aggressively using this technology, how long they’ve been using it and the
extent to which they have gone to create ruses to shield that use,” Stephen
Mercer, the chief of forensics for Maryland’s public defenders, said.
Prosecutors said they, too, are sometimes left in the
dark. "When our prosecutors are made aware that a detective used a
cell-site stimulator, it is disclosed; however we rely upon the Police
Department to provide us with that information," said Tammy Brown, a spokeswoman
for the Baltimore's State's Attorney. "We are currently working with the
Police Department to improve upon the process to better obtain this information
in order to comply with the law.”
Baltimore is hardly alone. Police in Tallahassee used
their stingray to track a woman wanted for check forging, according to records
provided to the ACLU last year. Tacoma, Wash., police used theirs to try to
find a stolen city laptop, according to records released to the website
Muckrock. Other departments have acknowledged that they planned to use their
stingrays for solving street crimes.
As that surveillance became more common — and more widely
known — state and federal lawmakers moved to put new limits on the
circumstances in which it can be used. Some states require the police to get a
search warrant before they can use a stingray, and Congress is considering a
similar rule for the federal government.
Federal officials have said stingrays allow them to track
dangerous criminals. “It’s how we find killers,” FBI Director James Comey said
last year. “It’s how we find kidnappers. It’s how we find drug dealers. It’s
how we find missing children. It’s how we find pedophiles.”
In Baltimore, at least, it’s how the police tracked the
man they suspected stole a phone from the back seat of a car parked outside the
city’s central booking facility in 2009. Two days after the theft, an officer
said in a court filing that detectives found Danell Freeman holding the phone
in the doorway of an East Baltimore public housing complex. The court filing
did not say how detectives knew to look for the phone there, but a police
surveillance log indicates they used a stingray.
Police charged Freeman with misdemeanor theft.
Prosecutors dropped the case a month later.
“The problem is you can’t have it both ways. You can’t
have it be some super-secret national security terrorist finder and then use it
to solve petty crimes,” Electronic Frontier Foundation lawyer Hanni Fakhoury
said.
FBI spokesman Chris Allen said the bureau does not have
the authority to tell police departments how they should use stingrays. It has
asked them to keep that use confidential, requiring them to sign non-disclosure
agreements that prohibit officers from revealing how the phone-tracking
technology works. Baltimore police officials signed one in 2011.
CRIMES LARGE AND SMALL
Baltimore’s police are prolific stingray users. In April,
Det. Emmanuel Cabreja testified that officers had used cell-site simulators
more than 4,300 times since 2007, a figure that easily dwarfs the tallies
reported by the few police departments that have released details of their
usage. The police have not previously identified the crimes they used the
device to investigate or the people they arrested as a result.
By matching court records and a surveillance log from the
police department’s Advanced Technical Team, USA TODAY identified 837 criminal
cases in which the police indicated they had used a device to simulate a cell
tower. The log does not expressly reference cell-site simulators, but
detectives and a police spokesman, Det. Jeremy Silbert, confirmed the language
officers used in the log to indicate a stingray had been used.
Among those cases are some of the most serious crimes the
police were called on to investigate — and some of the least.
In 2010, police used a stingray to track a man they suspected
had kidnapped his girlfriend’s two daughters, ages 3 and 5, and demanded half
of her $6,000 tax refund as a ransom “in exchange for her older daughter’s
life.” He threatened in text messages to throw the older daughter off a bridge
if he didn't get the money, according to court records. Detectives quickly
recovered the children unharmed. Prosecutors quickly dropped the kidnapping
charges against the man, Kwame Oseitutu; he was convicted only of misdemeanor
misuse of a telephone. Prosecutors did not explain that decision.
Officers rely on reports from phone companies to track a
suspect's phone to a particular neighborhood, then use their tracker, known as
a Hailstorm, to pinpoint his location. In one court filing in 2013, an officer
said Advanced Tactical Team detectives received 40 hours of training on using
the tracker and an additional eight hours of "cellular theory"
training from the U.S. Secret Service.
The team's log shows the police used cell-site simulators
in at least 176 homicide cases, 118 shootings and 47 rapes since 2008. Usually
they were searching for suspects, but occasionally, the records show they used the devices to track down witnesses. The
most common use by far was solving robberies. Stingrays are especially
well-suited to that job because robbers frequently take their victims' phones.
“We’re out riding around every day,” said one officer
assigned to the surveillance unit, who spoke on the condition of anonymity
because of the department’s non-disclosure agreement with the FBI. “We grab a
lot of people, and we close a lot of cases.”
Not all of those cases are big. Records show police used
a cell-site simulator to track down a woman charged with stealing credit cards
from a garage and using them to pay two months’ rent at a self-storage unit.
They used it to hunt for a stolen car and to find a woman who sent hundreds of
“threatening and annoying” text messages to a Baltimore man. In each case,
prosecutors ultimately dropped the charges or agreed to pretrial diversion.
In 2011, detectives used a stingray to try to find a man
who took his wife’s cellphone during an argument, telling her, “If you won’t
talk to me, you’re not going to talk to anyone,” according to court records, a
crime the surveillance team classified as a robbery. Police tracked the phone
that day, but by then, it had already been returned to his wife, so they
tracked it to her house.
Police did not find Jarrod Tongue until he showed up in
court a month and a half later, when the case was dismissed. Tongue could not
be reached to comment.
Baltimore police officials declined to comment.
Baltimore's use is consistent with how the police have
used cell trackers in other cities, ACLU lawyer Nathan Wessler said, albeit on
a much larger scale. “We know that they have been purchased widely and used
widely,” he said. “In the few departments that we’ve seen [records from], they
are being used for a wide range of investigations.”
Rochelle Ritchie, a spokeswoman for Baltimore’s state’s
attorney, could not say whether prosecutors had ever dropped a case because of
issues related to such surveillance.
Still, barely half of the cases USA TODAY identified
ended in a conviction. Prosecutors dismissed about a third of the cases
outright, even when suspects had stolen phones with them when they were
arrested. What’s less clear is whether those outcomes were the result of the
secret surveillance or merely reflected the normal ebb and flow of Baltimore’s
clogged criminal justice system.
Prosecutors have certainly agreed to forgo evidence
officers gathered after using a stingray. At a court hearing in November, a
lawyer for a robbery suspect pressed one of the detectives assigned to the
surveillance team, John Haley, for information about how the police had found a
phone and gun prosecutors wanted to use as evidence against his client. Haley
refused to explain, citing the non-disclosure agreement. “You don’t have a
non-disclosure agreement with the court,” Judge Barry Williams replied and
threatened to hold the detective in contempt if he did not answer.
Prosecutors quickly agreed to forgo the evidence rather
than let the questioning continue. “I don’t think Det. Haley wants to see a
cell today,” Assistant State's Attorney Patrick Seidel said.
SECRET SURVEILLANCE
In court records, police routinely described the phone
surveillance in vague terms — if they mentioned it at all. In some cases,
officers said only that they used “advanced directional finding equipment” or
“sophisticated electronic equipment" to find a suspect. In others, the
police merely said they had “located” a
suspect’s phone without describing how, or they suggested they happened to be
in the right place at the right time.
Such omissions are deliberate, said an officer assigned
to the department’s Advanced Technical Team, which conducts the surveillance.
When investigators write their reports, “they try to make it seem like we
weren’t there,” the officer said.
Public defenders in Baltimore said that robbed them of
opportunities to argue in court that the surveillance is illegal. “It’s
shocking to me that it’s that prevalent,” said David Walsh-Little, who heads
the felony trial unit for Baltimore’s public defender office. “We can’t
challenge it if we don’t know about it, that’s sort of the horror of it.”
Defendants usually have a right to know about the
evidence against them and to challenge the legality of whatever police search
yielded it. Beyond that, Maryland court rules generally require the government
to tell defendants and their lawyers about electronic surveillance without
being asked. Prosecutors say they are not obliged to specify whether a stingray
was used. Referring to direction-finding equipment “is sufficient to place
defense counsel on notice that law enforcement employed some type of electronic
tracking device,” Ritchie said.
In at least one case, police and prosecutors appear to
have gone further to hide the use of a stingray. After Kerron Andrews was
charged with attempted murder last year, Baltimore's State's Attorney's Office
said it had no information about whether a phone tracker had been used in the
case, according to court filings. In May, prosecutors reversed course and said
the police had used one to locate him. “It seems clear that misrepresentations
and omissions pertaining to the government’s use of stingrays are intentional,”
Andrews’ attorney, Assistant Public Defender Deborah Levi, charged in a court
filing.
Judge Kendra Ausby ruled last week that the police should
not have used a stingray to track Andrews without a search warrant, and she
said prosecutors could not use any of the evidence found at the time of his
arrest.
Some states require officers to get a search warrant, in
part because the technology is so invasive. The Justice Department is
considering whether to impose a similar rule on its agents. In Baltimore,
police routinely relied instead on what are known as “pen register” orders,
which must be approved by a judge but do not require the same level of proof as
a search warrant. For a time last year, Baltimore officers also started getting
search warrants, then stopped, Haley
testified at a hearing in June.
Few courts have weighed in on stingrays' legality, partly
because so much of the surveillance happened in secret that defense lawyers had
few opportunities to challenge it.
Levi, for example, said she did not realize until USA
TODAY contacted her that the police had used stingrays in at least three other
cases she handled.
In one, police tracked a rape suspect to an address on
the city's west side. Their arrest report didn’t specify how they found him
there, and a disclosure form filed in Baltimore’s Circuit Court did not
indicate that the police had conducted any electronic surveillance. But his
case number and the address where he was arrested appear in the Advanced
Technical Team’s surveillance log with language indicating that a stingray was
used.
Even when stingray cases reach appeals courts responsible
for settling those legal questions, the judges don't always appear to know
about the surveillance.
Two years ago, for example, a Maryland appeals court
heard a case in which the police arrested a robbery suspect after tracking a
stolen cellphone. Kenneth Redmond had been convicted of robbing a high school
student at knife-point; police found him by tracking her stolen phone to a
house. The court’s description of how they did that was vague; detectives found
him by “triangulating the signal from cellphone towers in the area,” the judges
wrote, using “phone company technology.”
In fact, according to the police log, detectives used a
stingray.
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