Federal Judge Blasts FBI, Agent For Breaking The Law When Seeking Stingray Warrants

from the to-catch-lawbreakers-you-gotta-break-a-few-laws dept

While it's good the FBI is seeking warrants for Stingray deployments, there's some bad news. This story from Cyrus Farviar from Ars Technica shows FBI warrant procedures are incredibly flawed -- so severely flawed they break state law when they're put to use.

California law does not allow state judges to sign off on warrants for federal agents, something that this particular FBI agent, Stonie Carlson, apparently did not know.

"But the two warrants were plagued by numerous errors, reflecting a pattern of systematic recklessness by law enforcement that militates in favor of suppressing the evidence (and against applying the 'good-faith exception' to the exclusionary rule)," US District Judge Vince Chhabria wrote in a July 3 order. "This ruling is published separately to put the relevant actors in the criminal justice system on notice that California law prevents state judges from issuing search warrants to federal law enforcement officers, which means that federal law enforcement officers are not permitted to execute such warrants."

The FBI put its Stingray to use to track cellphones used by people suspected of engaging in credit card fraud. The order [PDF] suppressing the evidence is an entertaining read -- one that doesn't pull any verbal punches excoriating the federal agents involved in this law-flaunting trip through a California courthouse.

FBI Agent Stonie Carlson brought two warrants to the Alameda County Courthouse -- one intimately familiar to the FBI. The judge signed off on the warrants despite state forbidding this practice. The FBI is also not allowed to use state judges for federal warrants, something Carlson apparently didn't know. As the order [PDF] points out, this ignorance alone might have been enough to salvage the warrants and evidence… if that's all there was to it.

A federal agent's mistaken belief that he could be issued a search warrant by a California state judge is likely not, on its own, a basis for suppressing evidence obtained during the search (at least before the publication of this ruling). That is arguably good faith negligence. But the two warrants were plagued by numerous errors, reflecting a pattern of systematic recklessness by law enforcement that militates in favor of suppressing the evidence (and against applying the "good faith exception" to the exclusionary rule).

But no good faith will be awarded here. Judge Chhabria wants to make it crystal clear no more of this "negligence" is welcome in his jurisdiction.

This ruling is published separately to put the relevant actors in the criminal justice system on notice that California law prevents state judges from issuing search warrants to federal law enforcement officers, which means that federal law enforcement officers are not permitted to execute such warrants.

As was noted earlier, state/county judges can issue certain warrants to federal and local law enforcement. But only local law enforcement is allowed to execute search warrants issued by local judges. If a federal agent wants to engage in a search or an arrest, they need to get their warrants approved by federal judges. The DEA's inability to follow California law has cost it a few cases over the years. The FBI is going to have the same problem if it doesn't train its agents correctly.

Even if it was a lapse in training, Judge Chhabria isn't interested in forgiving Agent Carlson for his agency's failings. This results in one of the harsher bench-slaps handed out to a federal agent.

At the evidentiary hearing, Carlson claimed that his decision to seek the warrants from state court judges, rather than a federal magistrate judge, was based partly on training his colleagues received from that office. This statement by Carlson may or may not accurately reflect whatever his colleagues learned or told him, since Carlson's general conduct in this case, as well as his testimony at the evidentiary hearing, shows that he is neither well-trained nor particularly concerned with complying with the law in conducting his enforcement activities.

The ruling isn't just issued for the FBI's benefit. It's also there to tell state judges to do their job correctly. But it cuts the judge in this case some slack, but only by suggesting Agent Carlson may have muddied the warrant water deliberately.

[T]he two state court judges who issued the warrants may have been unaware of the legal limits on Carlson's ability to insert himself into the state criminal justice system. The record is not clear on this point. As discussed in the separate unpublished ruling, although the state court judges likely should have known that Carlson was seeking authorization for himself and other federal officers to execute the searches, it is possible they were misled by the paperwork Carlson submitted to them.

The FBI is finally using warrants for Stingrays -- just as the DOJ stated back in 2015. Agents are just doing it as incorrectly as possible, which isn't a huge improvement. Considering the way this one was botched, Agent Carlson may as well have not even bothered filling out an affidavit.


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  • icon
    That Anonymous Coward (profile), 25 Jul 2018 @ 11:59am

    How badly you gotta screw up the paperwork to get the high holy halls of good faith exceptions to not smile upon you?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jul 2018 @ 12:11pm

    Agent Carlson may as well have not even bothered filling out an affidavit.

    Indeed. If he had neglected to fill it out, he could have more readily pled ignorance of procedure and might have had a better chance of winning a good faith exception. That he tried to get a warrant can support the inference that he knew warrants were required. From there, it's fair to infer that he should know how to get one properly, or at least know to go read up on how to get one properly.

    From another angle, had he neglected to secure a warrant, the agency might have been more inclined to engage in evidence laundering (euphemistically "parallel construction"), and kept quiet what he had actually done.

    reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 25 Jul 2018 @ 2:24pm

    Deputized

    While California law does not generally allow for federal agents to serve warrants, federal agents *can* be deputized by local, county, or state law enforcement agencies-- usually as part of a task force or some other joint operation-- and once so deputized, the legal barrier to serving state warrants goes away.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jul 2018 @ 2:28pm

    Funny how ignorance of the law by citizens is not a valid excuse, but for the police and FBI it is!!!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 25 Jul 2018 @ 4:10pm

    That's going to sting

    This statement by Carlson may or may not accurately reflect whatever his colleagues learned or told him, since Carlson's general conduct in this case, as well as his testimony at the evidentiary hearing, shows that he is neither well-trained nor particularly concerned with complying with the law in conducting his enforcement activities.

    That, coming from a judge... ouch. When even those that are supposed to be as professional as they can be are willing to hand out condemnation like that in their ruling you know you really screwed up.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jul 2018 @ 5:13pm

    Typo detected: FBI comma Agent

    reply to this | link to this | view in chronology ]

  • identicon
    ME, 30 Jul 2018 @ 6:24am

    Judges - corruption in Virginia

    Judge Arenda L. Wright Allen is one of the most criminal judges in federal court history. She has allowed no less than a dozen felonies to be perpetrated by lawyers on the dockets she oversees. The fourth circuit court of appeals is no better ruling citizens don't have a constitutional right to be free from torture. Traxler, Duncan and Wynn said they didn't have jurisdiction due to the judge not issuing a final order on several defendants - but she did. The two defendant she didn't issue a final order on, they gave a final order. The fact is I did serve the officer in question - two attorneys - Bradford and Migley refused the subpeona = federal obstruction of justice - a felony. So many felonies have been perpetrated on these judges dockets. I have been to so many attorneys around the world. What I hear is - these courtrooms are so corrupt, I couldn't charge you. Obviously these judges are criminals themselves. You have to read them to believe them. Judge Allen, Traxler, Duncan and Wynn are so criminal it shocks the conscious of any law abiding citizen. Yep, I am going to take them to court and ask the Supreme Court is justice for everyone or can judges be bought and sold like a prostitute.

    reply to this | link to this | view in chronology ]


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