EFF, ACLU And Public Records Laws Team Up To Expose Hidden Stingray Use By The Milwaukee Police Department

from the acronyms-to-the-rescue! dept

The EFF and ACLU — along with the assistance of a very fortuitous public records request by Stingray-tracker extraordinaire Mike Katz-Lacabe — have uncovered more hidden use of IMSI catchers by law enforcement. A criminal prosecution relying on real-time tracking of a suspect’s cell phone has finally led to the admission by Wisconsin police that they used a Stingray to locate defendant Damian Patrick.

The information wasn’t handed over to the court until the EFF, ACLU, and Katz-Lacabe’s FOIAed documents forced the government to admit it used the device. Up until that point, testimony given by officers gave the impression that tracking Patrick down only involved the use of records from his service provider. They also claimed the information pinpointing Patrick’s location in a parked vehicle was just a tip from an “anonymous source.”

As we’ve seen in other cases involving Stingrays, the government did everything it could in this case to hide the fact that it used a Stingray—from the court that issued the pen register/trap and trace order, the court that heard Patrick’s motion to suppress the evidence, and even from Patrick, himself. In police reports, the officers said only that they “‘obtained information’ of Patrick’s location; . . . had ‘prior knowledge’ that Patrick was occupying the vehicle; . . . [and] ‘obtained information from an unknown source’ that Patrick was inside the vehicle at that location.”

This charade continued through an evidentiary hearing, where the judge refused to allow the defense to coax more specific information out of the testifying officer.

[E]ven at an evidentiary hearing where officers admitted to cellphone tracking, they would only acknowledge, cryptically, that they’d received “electronic information” confirming Patrick was in the vehicle. When Patrick’s attorney asked what “electronic information” meant, the officer on the stand would say only that it involved “tracking [a] cell phone.” The judge cut off any further questioning at that point.

And that’s where Katz-Lacabe’s FOIA request played a significant role. Katz-Lacabe had obtained Stingray logs using Wisconsin’s public records laws. Contained in those logs were Stingray deployments matching up to the government’s tracking and locating of Damian Patrick. The government has now begrudgingly admitted as much, via a letter from the DOJ to the court regarding the Milwaukee Police Department’s Stingray deployment.

Per our conversation last week, the government has determined that on October 28, 2013, the Milwaukee Police Department used a cell site simulator to locate Damian Patrick. At this time, we do not intend to seek leave to supplement the record pursuant to Federal Rule of Appellate Procedure 10.

The government is still arguing that the MPD complied with the Fourth Amendment, even if it never obtained a search warrant to deploy the Stingray. In any event, the affidavit it submitted (for what appears to be a pen register order, rather than a warrant) did not mention the use of a Stingray. Still, it argues no evidence should be suppressed… because circular reasoning.

[T]he government also argues it didn’t violate the Fourth Amendment in this case because it actually got a warrant—or maybe, in the alternative, the equivalent of a warrant (the police had a warrant to arrest (not search) Patrick and a court order (not a search warrant) to track Patrick’s phone). In a confusing and somewhat circular argument, the government asserts that because it submitted a “sworn affidavit” in support of its request for the pen/trap order, the order must have actually been a search warrant—if it hadn’t been a warrant, then it “wouldn’t have needed a finding of probable cause, which it contained.”

Dumping probable cause into a pen register application is a nice nod to the Fourth Amendment, but it’s not required and it doesn’t turn a court order into a warrant. An arrest warrant is not a search warrant, and it’s likely the MPD would not have been able to serve its arrest warrant without the use of its Stingray-obscuring pen register order. The admission that Stingray surveillance should require the use of a warrant is, again, a nice nod to the Fourth Amendment, but it means nothing if that’s not how the Milwaukee PD actually operates. And, yet again, the long battle to uncover evidence of Stingray tracking makes it clear the PD is hiding this information from judges when applying for court orders and warrants.

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Comments on “EFF, ACLU And Public Records Laws Team Up To Expose Hidden Stingray Use By The Milwaukee Police Department”

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That One Guy (profile) says:

And then some

And, yet again, the long battle to uncover evidence of Stingray tracking makes it clear the PD is hiding this information from judges when applying for court orders and warrants.

Not to mention lying about it’s use in court, but I suppose when you’ve got spineless judges who don’t care when they’re lied to so long as the one doing it has a badge, and telling the truth might open up your evidence up to challenge why not lie?

Anonymous Coward says:

Re: Re:

They also know that lying to the court is okay, and they know that lying to the public often gets them the benefit of the doubt too.

The corruption of law enforcement is pretty much an open secret right now. They don’t even try to hide it, they can just shoot you right in the face as they say that “this is not what you think it is” and act like no one has a right to say or believe otherwise while people are dying.

JoeCool (profile) says:

TV shaping our lives

I can imagine many of the police are confused at why they need a warrant. Many of them probably (like myself) watched TV shows where the cops use something to track the bad guy’s cell phone, then swoop in for the arrest. Cue dramatic music. Case closed – bad guys 0, good guys 1.

Ever watch “Criminal Minds”? The FBI have this one team member whose specialty is finding info on the internet (naturally, she was a hacker they before joining the FBI). She runs through all the databases out there, pulling private info from any source on millions of people, singling out that one person who may just be the killer. But we never see a single warrant on any of the searches. All we see is she finds the bad guy, the team rushes in, and it’s bad guys 0, good guys 1, again.

These shows are teaching people to cheer for unlimited global surveillance, even if they don’t realize it. Anything can be found about anyone at any time, all without need of warrants, while we cheer in the background.

Uriel-238 (profile) says:

Re: Maybe we should stop watching those shows.

Frankly, they it makes me sad when TV cops angst over their shady methods, and feel unclean when they get the bad-guy through illegal hacks, lies qnd unwarranted searches. Or when a TV cop shoots a bad guy in self defense who is later vindicated of the bigger crime.

In the real world, all that is standard operating procedure. No tears are shed for innocents gunned down. There is no guilt for perjury in a court of law, so long as they get the collar.

Better still if masses of assets were seized.

Wendy Cockcroft (user link) says:

Re: Re: Re: Maybe we should stop watching those shows.

Where do you think they get the idea that due process is an impediment to justice?

We are reaping the consequences of the “Throw the rulebook out of the window” mentality as people get away with serious criminal offences because they were prosecuted under the wrong statute, dodgy methods are used to gather evidence, and people get locked up for decades — or even put to death — for crimes they didn’t commit.

The entertainment industry has been pushing this line for years and we very rarely call them out for it. I think it’s time we did; people who accept these messages because they’ve been cleverly dramatised end up believing them and when they do they act on them. So repeat after me: “Due process is not an impediment to justice.”

Believe me, when people start accepting that principle as true we will see changes. The trouble is that, at the moment, they don’t.

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