We’ve known for some time that police departments sometimes keep secret their surveillance methods, even from courts and defendants in criminal trials. But thanks to the ACLU, we now have a crystal clear picture of just how often one police department employs "parallel construction" to hide from the public and sometimes even criminal defendants where evidence used against them really comes from.
Newly disclosed court documents provide new insight into the domestic use of one particularly creepy surveillance technology: stingray cell phone sniffers. The devices act like cell phone towers, forcing all phones within range to connect to them instead of to the phone company’s towers, enabling law enforcement to track people’s locations and even intercept their cell phone traffic. Police departments, the Department of Justice, and the corporation that manufactures the stingray, Harris Corporation, have gone to great lengths to keep secret how often and in what ways law enforcement has been using the tool domestically.
Now public court testimony from a Tallahassee police officer assigned to the Tactical Operations Unit reveals that his department has been using the invasive tool since March 2007, and employing parallel construction to cover his tracks. Over approximately three years, the detective personally used the stingray device—which he claims his department does not own—over 200 times. But according to his testimony, despite having used the stingray over 200 times in three years, police in Tallahassee have not once used stingray-derived information to establish probable cause for purposes of obtaining a search warrant.
Below I’ve copied the relevant portion of Officer Corbitt's testimony. He is talking about how, after he used stingray technology to locate the suspect’s apartment, he and other police officers on the scene discussed what to do next [emphasis added].
Q: What were the techniques that were discussed while you were deciding what it is you’re going to do after you found where you believe the phone is located?
A: Well, there are various things discussed as far as whether a search warrant would be obtained, or whether a legal method would be used to enter the apartment, discussion as far as our time sensitive nature of my equipment and being able to continually reliably say that the handset was inside.
You know all of those things are discussed from the simplest number of people that we want present for safety to all those things.
Q: Do you recall what was discussed with respect to obtaining a search warrant?
A: I know that there was discussion about a search warrant. I had indicated to the investigators that I believed probable cause existed to say that property belonging to the victim was within that apartment and was willing to complete an affidavit for a search warrant. We began—I began taking notes. That’s what I referenced here when he asked me the apartment number. I began taking notes as to the legal description for the apartment in anticipation of obtaining a search warrant. And that was eventually determined, that a search warrant was not necessary based on other factors.
Q: What were those other factors, if you recall?
A: Consent to enter.
Q: Was there any discussion of doing a protective sweep of the apartment?
A: I believe there was. Again, I was not present at the door; I did not hear those specific conversations and I don’t—I could not comment on that.
Q: What were the legal methods that were discussed when you’re having your group discussion or pow wow—if you will—before you actually made contact with the apartment.
A: I could only comment to what I was providing. And that was that again, I believed probable cause existed and was willing to articulate that, if necessary.
As always, we prefer that alternate legal methods be used, so that we do not have to rely upon the equipment to establish the probable cause, just for not wanting to reveal the nature and methods. And that was my input to the conversation.
Q: Have you in the past obtained a search warrant, as a result of you executing an affidavit in reliance upon this equipment in a situation similar to what we’re talking about here?
A: We have not obtained a search warrant, based solely on the equipment.
Q: And as I understood what you just said, in part because you would like to maintain the proprietary nature of what it is you’re doing. Is that correct?
A: That’s correct. It’s not because I do not believe the equipment cannot establish probable cause. I believe that it can very effectively and I believe that my training and experience with the equipment allows me to do that. We prefer not to do that, simply for having to reveal that in a document.
There you have it. Even though the Tallahassee police department has used the stingray device hundreds of times to track suspects, it hasn’t once admitted in a search warrant application to having used the technology to develop probable cause. The reason? Secrecy is paramount.
Last year we learned that the DEA has been deploying a tactic called "parallel construction" in domestic drug cases. In this scheme, sometimes known as evidence laundering, agents obtain intelligence leads directly from AT&T’s 26 year-old database of call records, and then pass on tips to local police. In order to protect the dragnet from judicial review and public outrage, officers are instructed to come up with other reasons to stop, search, and arrest the target of the sting. In some cases this is as simple as instructing cops to pull over a certain car at a certain time—something law enforcement officers have little difficulty doing, no matter how professional a driver is the target of the operation.
Now, thanks to the ACLU, and to a clever defense attorney, we know the extent to which parallel construction is being used by local police departments to hide their stingray surveillance operations.
In his appeal to compel (albeit sealed) testimony on the stingray issue, the criminal defense attorney in the Tallahassee case explained exactly why it's crucial that defendants hear a full explanation of how the government built evidence against them:
…the officers in this case went to [my client's address] because—was based, I’ll respectfully suggest 100 percent based—upon the information and the techniques utilized by Investigator Corbitt. And without knowing what those techniques are and whether or not those techniques are legally permissible…[i]t puts us—and I say the defense when I say us, Your Honor—at a disadvantage in understanding the legality of what was done and the reliability of what was done…
If there was an anonymous tip provided to somebody that a crime was being committed at a particular place at a particular time and law enforcement went to the location there would be some sort of follow up, if you will, to determine the reliability of the anonymous tip…I would suggest to the Court that the rules of discovery, as provided for in the Florida Rules of Criminal Procedure, provide for the disclosure of this information. The Florida, United States Constitutions, the due process provisions would require the disclosure of this information.
The stingray is a powerful surveillance tool. Devices like it have been used by spy agencies and militaries for many years. But domestic law enforcement isn’t spy work, and it’s not war. When police want to use these powerful, espionage-style surveillance tools to track criminal suspects in domestic law enforcement investigations, they need to respect the fact that they operate in the framework of an open society, not a military or police state. Criminal defendants should have the right to know where information used against them comes from, and how it was obtained.
Besides, what are the cops so afraid of when they try to hide from the public and from criminal defendants the fact that they've used stingrays? It’s not like people are going to stop using cell phones. Could it be instead that police fear the public will reject law enforcement use of this invasive tool, and push for public policy that would ban it? If so, the secrecy around stingray use smacks of an authoritarian impulse that has no place in an open society.