March 29, 2013

Little-Known Surveillance Tool Called Stingray Raises Concerns by Judges, Privacy Activists

From The Washington Post. Click HERE for original story.

By Ellen Nakashima, Published: March 27

Federal investigators in Northern California routinely used a sophisticated surveillance system to scoop up data from cellphones and other wireless devices in an effort to track criminal suspects — but failed to detail the practice to judges authorizing the probes.

The practice was disclosed Wednesday in documents obtained under the Freedom of Information Act by the American Civil Liberties Union of Northern California — in a glimpse into a technology that federal agents rarely discuss publicly.

The investigations used a device known as a StingRay, which simulates a cellphone tower and enables agents to collect the serial numbers of individual cellphones and then locate them. Although law enforcement officials can employ StingRays and similar devices to locate suspects, privacy groups and some judges have raised concerns that the technology is so invasive — in some cases effectively penetrating the walls of homes — that its use should require a warrant.

The issues, judges and activists say, are twofold: whether federal agents are informing courts when seeking permission to monitor suspects, and whether they are providing enough evidence to justify the use of a tool that sweeps up data not only from a suspect’s wireless device but also from those of bystanders in the vicinity.

In Northern California, according to the newly disclosed documents, judges expressed concerns about the invasive nature of the technology.

“It has recently come to my attention that many agents are still using [StingRay] technology in the field although the [surveillance] application does not make that explicit,” Miranda Kane, then chief of the criminal division of the Northern California U.S. attorney’s office, said in a May 2011 e-mail obtained by the ACLU.

As a result of that, she wrote, “effective immediately, all . . . applications and proposed orders must be reviewed by your line supervisor before they are submitted to a magistrate judge.”

The Justice Department has generally maintained that a warrant based on probable cause is not needed to use a “cell-site simulator” because the government is not employing them to intercept conversations, former officials said. But some judges around the country have disagreed and have insisted investigators first obtain a warrant.

“It’s unsettled territory,” said one U.S. law enforcement official, who spoke on the condition of anonymity because he was not authorized to speak for the record.

In a statement, Christopher Allen, a spokesman for the FBI, said the bureau advises field offices to “work closely with the relevant U.S. Attorney’s Office to adhere to the legal requirements” of their respective districts.

One of the problems is there is “scant law” addressing the issue of cell-site simulators, said Brian L. Owsley, a federal magistrate judge in the Southern District of Texas, who in June wrote a rare public ruling on the issue. He denied an application to use a StingRay, in large part because he felt the investigating agent failed to explain the technology or how it would be used to gather the target’s cellphone number.

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March 29, 2013

San Diego Criminal Lawyer Blog: Brady Discovery Applies Prior to Prelim

In this case, the prosecutor failed to give photographs to the public defender to the preliminary examination. The public defender contended, after he found out about the withholding of evidence, that the pictures were exculpatory and that the failure to disclose them violated Brady (373 U.S. 83).

The California Court of Appeal agrees that Brady applies pre-prelim! "We conclude that a defendant has a due process right under the California Constitution and the United States
Constitution to disclosure prior to the preliminary hearing of evidence that is both favorable and material, in that its disclosure creates a reasonable probability of a different outcome at the preliminary hearing. This right is independent of, and thus not impaired or affected by the criminal discovery statutes."

They do note that Brady operates differently at a prelim: "Accordingly, the standard of materiality is whether there is a reasonable probability that disclosure of the exculpatory or impeaching evidence would have altered the magistrate's probable cause determination with respect to any charge or allegation." This case resolves an issue left unclear in the recently
decided Gutierrez (2013 WL 940786; 2013 Cal.App. LEXIS 192; 2013 DJ DAR
3157; DJ, 3/14/13) case, which described the defense right to Brady "at" the
preliminary hearing.

This California Court of Appeal is quite specific in declaiming our right to discovery "prior to the preliminary hearing." Los Angeles County Public Defender Albert Camacho
was appellate counsel on this big win.

Bridgeforth v. Superior Court; 2013 DJ DAR 3947; DJ, 3/26/13; C/A
2nd, Div. 1

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March 24, 2013

CRIMINAL DEFENSE NEWS: Innocent Man Released After 23 years has Heart Attack

March 23, 2013

Click HERE for ABC news story, and video.

David Ranta has suffered a massive heart attack just two days after being exonerated of murder and leaving prison for the first time in 23 years, his attorney told

Lawyer Pierre Sussman said that Ranta, 58, was being treated in an New York hospital after suffering a severe heart attack Friday night. He did not provide further details.

Ranta was freed from prison Thursday after serving 23 years of a 37.5 year sentence for the murder of Brooklyn rabbi Chaskel Werzberger in 1990.

Ranta left a Brooklyn courtroom Thursday after a judge said he was free to go and his family cheered. On the way out he told reporters that the sensation of walking freely out of the courthouse was "overwhelming."

March 24, 2013

INLAND EMPIRE NEWS: Family Angered that Suspected Riverside DUI Driver Still Not Charged in 3 Deaths

COLTON, Calif. (KABC) -- A grieving father is demanding answers after his daughter, her best friend and the woman driving the two girls were killed by a suspected drunken driver who has not been charged nearly two months after the crash.

Click HERE for link to story.

Kylan Allen, 12, and her best friend, 13-year-old Haven Penman, were being driven by Allen's grandmother, L.E. Mason, to a church gathering on the evening of Jan. 18 when they were struck by another vehicle in Colton.

Penman and Mason died at the scene. Allen was critically injured and died a few days later.

"She was just an innocent lady trying to take her little girls to a church function," said Allen's father, Keith Allen.

The driver of the other vehicle, 29-year-old Michael Hughes, was arrested by Colton police for driving under the influence, but no charges have been filed.

Allen says there are questions about whether or not his mother-in-law failed to yield before the crash, but he wants to know why a suspected drunken driver is free.

"He hasn't been prosecuted for anything yet, no charges have been brought up," the father said. "I can't understand this and I just want some justice for my daughter Kylan, and Haven."

The district attorney's office tells Eyewitness News the case is still under investigation.

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