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Secret cellphone tracking device used by police stings civil libertarians

Secret cellphone tracking device used by police stings civil libertarians
GLENN E. RICE, The Kansas City Star
PUBLICATION: Kansas City Star, The (MO)

SECTION: technology

DATE: September 5, 2015
For more than two hours, Kansas City police frantically searched for a distraught man threatening to hang himself in woods near Arrowhead Stadium.

At one point, he called 911 and reported he was hanging on, barely, to a broken tree branch. A noose tied overhead encircled his neck.

Eventually, police sought help from a top-secret cellphone tracking device. It guided officers right to the 42-year-old man, intoxicated and sobbing, still clinging to that broken branch.

Kansas City police purchased the portable cellphone tracker, called a StingRay, in 2011. As a condition of purchase, it promised the FBI not to reveal its existence, in part to keep criminals in the dark.

Since then, they’ve used it nearly 100 times, a Police Department spokesman told The Star.

In 76 cases, they obtained a judge’s approval to use it while searching for fugitives, murder suspects or other violent criminals.

In 21 cases, they activated it to find missing persons, victims of kidnappings or other people in peril when police lacked time to obtain a court order or warrant.

“We use it within the confines of the law and only under the direction of a court order or in emergency or extenuating circumstances,” said Capt. Tye Grant, a Kansas City Police Department spokesman.

But as civil libertarians, defense lawyers and others across the country have learned about the devices, they’ve waved red warning flags.

The StingRay enables police to determine a cellphone’s location by posing as a cellphone tower. But because it collects data on nearly every cellphone near it, not just criminals’ phones, it invades the privacy of law-abiding citizens, the critics say.

“They are just a mindless eating machine of electronic data,” said Doug Bonney, chief counsel and legal director of the American Civil Liberties Union of Kansas. “And that is the problem.”

Critics also complain that law enforcement agencies across the country have:

▪ Kept much about the device secret — including what it looks like, what it costs and how it works — for years.

▪ Hidden its use from suspects, defense lawyers and even judges.

▪ Sometimes used it illegally, without a warrant, in a criminal investigation.

Critics argue that, at an absolute minimum, police need to get a probable-cause warrant and provide full disclosure to judges, defense attorneys and the public about how and when they use the technology.

Recently, the secrecy lifted some.

Just five months ago, Kansas City police would not confirm or deny details about the device to the ACLU, saying: “It is poor practice to highlight for criminals the equipment used by the agency.”

But last month, saying its position had changed, Kansas City gave the ACLU some documents.

On Friday, the police outlined for The Star brief information on the 97 times it has used its device to find phones.

The list showed at least 29 homicide cases and a mix of other investigations, including assaults, robberies, sex crimes, domestic violence and gang squad cases. The list also showed that Kansas City police collaborated with at least 12 other local, state or federal agencies in cases where they activated the device.

On Thursday, the Department of Justice that appeared to have been drafted, at least in part, to answer some of the nationwide criticisms. The policy included background on how the devices work — to clear up confusion and incorrect perceptions, the document said.

Probable-cause search warrants now are required in all but “exigent circumstance,” or emergency cases, where use of the device could save lives or prevent serious injury, the policy said.

By the ACLU’s count, at least 54 nonfederal law enforcement agencies in 21 states have the devices.

Other law enforcement agencies borrow the equipment from state police, neighboring local jurisdictions or federal agencies, which began using the device in the mid-1990s, said Nathan Wessler, a lawyer for the ACLU.

In Baltimore, a police detective admitted in court in April that his department had used a StingRay device 4,300 times but never disclosed those details to prosecutors or judges, according to the Baltimore Sun.

On Friday, a Baltimore defense attorney filed a motion saying the state’s attorney in Maryland had colluded with Baltimore police to hide StingRay discovery material from defendants. As many as 2,000 cases could be jeopardized, .

In St. Louis, prosecutors against four defendants accused in a series of violent robberies rather than have a police detective testify how investigators used the StingRay.

“In that case, clearly, they used it illegally,” said Terence Niehoff, an attorney who represented one of the defendants.

Police would not have caught the robbers without the device, Niehoff said. Their mistake was that they went into East St. Louis without getting a warrant in Illinois, he said.

“Had they used it legally … there would not have been any problems,” Niehoff said.

He also dislikes the fact that the devices provide police with data about every nearby cellphone.

“Instead of eavesdropping on one conversation, they are eavesdropping on everybody’s conversation, and there is a problem there,” Niehoff said.

According to Grant, Kansas City police have not used the StingRay to eavesdrop on conversations or read text messages.

The Department of Justice policy released Thursday says its devices are to be configured in a way that does not allow collection of such information.

Kansas City police officials just recently acknowledged to The Star and the ACLU their use of the tracking device, including in the 2012 case where they searched for the suicidal man near Arrowhead Stadium.

Homicide detectives last used it as part of an investigation in May, Grant said. He declined to provide details of how it was used in that or other homicide cases.

However, The Star identified two of the homicide cases from the list Grant provided.

After someone gunned down Travelers Inn clerk Kassandra S. Peters in June 2012, it took prosecutors two months to charge a man, Dayqwaun M. Sykes, in her killing. But at some point during the investigation, police used the StingRay to track a cellphone location.

In another 2012 case, detectives identified a homicide suspect within days of a killing, but relatives of the victim tried to conceal that they also knew his identity. When police found out, they moved to quickly arrest the person. Although court records do not mention the StingRay, the records say police found the person coming out of a south Kansas City motel.

When the department sought to purchase its first StingRay equipment in 2011, the Kansas City Board of Police Commissioners supported the request and expressed no concerns about the device’s intended use.

Police already had the ability to get cellphone records from providers showing where a phone had been. But the StingRay would allow them to track it in “real time,” or where the phone was as soon as they activated the tracker.

“The nature of investigative tools is that they are not out in the open,” said Pat McInerney, an attorney who served on the police board from 2009 to 2013. “… This is a very useful tool in the investigative process.”

Kansas City police spent $499,184 in August 2011 on StingRay equipment and training. The money came from a federally funded Urban Areas Security Initiative program.

Since then, the department has spent about $270,00 on equipment upgrades from the Florida-based manufacturer, Harris Corp.

Jim Burke, a company spokesman, declined to comment to The Star about its product or the company’s relationship with the Kansas City Police Department.

Purchase orders, invoices and payments obtained by The Star and the ACLU reveal few details.

Page after page shows only the total purchase amount and the vendor’s name. Police redacted nearly everything else, including item description, costs per unit and, often, who within the Police Department requested the purchase.

On one Kansas City police budget document, the line item refers to the devices as “minor equipment.”

The sales documents from Harris carry a lengthy warning, in all capital letters, that starts: “Disclosure of this document and the information it contains are strictly prohibited by federal law.”

Missouri law allows that information to be withheld from the public, Kansas City police said in an August letter to the ACLU.

“The public interest in nondisclosure outweighs the public interest in disclosure of such records,” Jamie L. Cook, the Police Department’s associate general counsel, wrote to the ACLU. “Identifying the specific type of software would defeat enhanced precautions that the Department takes to maintain confidentiality of covert operations and sensitive equipment.”

Back when Kansas City bought its device, the FBI required police departments to sign nondisclosure agreements first. The agreement Kansas City signed in 2011 prohibited police from publicizing the “purchase of, acquisition of, or use of the Harris Corporation equipment/technology.”

“This prevents criminals from coming up with countermeasures, which could harm law enforcement’s efforts by compromising future use of the technology,” said Bridget Patton, a Kansas City FBI spokeswoman.

The secrecy level concerned some local defense lawyers.

“What’s troubling, other than the obvious intrusion upon citizens’ Fourth Amendment protections, are the deceptions used by law enforcement officials in not disclosing their use of this intrusive technology to defendants during warrantless searches,” said John Picerno, a criminal defense attorney.

He called the use of the technology “scary stuff.”

However, prosecutors say the tracking devices can be important investigative tools when used with constitutional safeguards that protect an individual’s privacy.

“Technology is rapidly evolving, and so are the ways in which criminals use technology to commit crimes,” said Boone County Prosecutor Dan Knight, who is president of the Missouri Association of Prosecuting Attorneys. “Along with this comes the challenge of applying 18th-century constitutional standards of search and seizure to 21st-century criminal investigations.”

A year ago, a woman called Kansas City police upset that her husband had tried to kill himself with a gun but failed. She had just learned that he had purchased a helium tank. She feared he wanted to suffocate himself.

Police tracked his cellphone to a Northland home, entered through an unlocked door and found him with a plastic bag over his head. A tube ran from the helium tank to the bag.

He would have died within five minutes if officers had not rescued him, hospital workers later told police.

The attempted suicide near Arrowhead Stadium happened a week before Christmas in 2012.

Two officers dispatched to the area called the man’s cellphone and kept him talking while they drove around looking for him. They sounded their siren and listened on the phone to hear if they were getting close.

He claimed he didn’t want help — that mental health experts had failed him in the past.

The officers called in the police helicopter and other officers. Later, the man dialed 911.

“The branch just broke,” he said.

Still, police could not find him.

Two hours later, after using the cellphone tracking device, they spotted him standing in a tree about 6 feet off the ground with the noose around his neck. He wanted officers to call his girlfriend and report he was going to kill himself.

Instead, an officer climbed into the tree, grabbed the man and lowered him to safety.

The one-page report about the incident does not mention the StingRay.

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