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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April 7, 2010


In T.L.O. (469 US 325), the US Supremes said that school officials could conduct a search if it was reasonable, even if there was no probable cause. Here, the police called the school to tell them that this minor had illegal pills on him. The vice principal searched the minor with the police present. The Court of Appeal that T.L.O. controls here, although you
might think that the school was merely acting as the agent of the police.

In re K.S.; 2010 DJ DAR 4459; DJ, 3/26/10; C/A 1st, Div. 5

January 11, 2010


A curtilage just isn't what it used to be. Ah, we long for the good old days. Here, the defendant was being investigated on drug charges. Agents placed a mobile tracking device on his Jeep while in his driveway. The driveway had no special features that raised an expectation of privacy necessary for curtilage protection under the 4th Amendment. There were no barriers or fences, or enclosures, or a lack of visibility. There were no "No Trespassing" signs or warnings. (hint, hint) The driveway was open to the public, and was used to approach the house. The attaching of the device in the early morning -- between 4 and 5 am -- did not raise the expectation of privacy to the driveway's physical nature. The 9th Circuit Court of Appeal followed precedent (McIver) in holding that the undercarriage of the car was the exterior; and that parking the car on the public street was outside the curtilage. Finally, the mobile tracking device is permitted by the Supremes. Bummer.

U.S. v. Pineda-Moreno, No. 08-30385 (1-11-10).

December 1, 2009


This case is insanity at its worst. ere, the oficer saw the defendant driving a car with no license plates. He stopped the car and determined that the defendat was DUI, leading to a search and finding a firearm and methamphetamine. The officer was asked if he saw a temporary permit in the rear window; the officer did NOT say that there was no permit; he said he didn't remember.

Here's the incredible fact: the AG CONCEDED! We win, right? Wrong. The California Court of Appeal says that the officer saw that the car didn't have plates. They say that there was no evidence that the officer SAW a temporary permit, and they reject the contention that the officer had to make a reasonable effort to determine whether there was a permit. This is just wrong.

Remember Butler (202 Cal.App.3d 602), the case saying the police can't stop a car to determine whether tinted windows in the car are illegally tinted; they have to have PC to think that the windows were illegally tinted in order to make the stop. The California Court of Appeal says that there was no evidence that the defendant was displaying a permit, or that the ofr. saw it, so the suspicion raised by the absence of plates was not dispelled. This is totally
wrong, totally contrary to Hernandez (45 Cal.4th 294) and Butler, wrongly places the burden on the defense, and misses the point: the police need PC in order to stop in the first place!

But by far the best part of this case is that the AG conceded, so the California Court of Appeal has to make snarky comments about the contentions of ... the AG! They call their position
"facile." They complain that the AG cites no authority. You know, all the kind of language we typically see used to slam us. Sweet! And yet an outrage.

People v. Dotson; 2009 DJ DAR 16738; DJ, 12/1/09; C/A 3rd

November 15, 2009


This California Court of Appeal ends up upholding the search in this case based on exigent
circumstances. The details are long and exhausting, but essentially the Court of Appeal says that there are exigent circumstances when a reliable missing person report is made under circumstances strongly suggesting that the missing person is injured or worse, and where a reasonably cautious person would believe the action was appropriate.

The Court of Appeal also upholds a car search, relying on Ross (456 U.S. 798). Maybe if a car is an undriveable motor home, Ross might not apply, but this was just a regular car (with dismembered body parts of the victim inside), so the Ross exception for cars applies.

People v. Hochstraser; 2009 DJ DAR 15299; DJ, 10/28/09; C/A 6th

November 3, 2009


The defendant rented a private postal box. The police went to it and asked an employee if the defendant received mail at that facility. The clerk responded by reaching into the defendant's postal box, retrieving three letters, and displaying them without opening them to the police. One showed a bill from AT&T. The police then directed a warrant for cell phones records to AT&T and got evidence of defendant's involvement in a kidnapping.

The Court of Appeal says that the 4th Amendment doesn't apply to an employee's removal of mail from a postal box at a private mail facililty because the back of the box was open and the staff had complete and unfettered access to its contents, and the police didn't search the
postal box or direct the clerk to reveal its contents. The staff has already seen and handled the mail, so there's no limitation on the staff.

People v. Reyes; 2009 DJ DAR 15589; DJ, 11/3/09; C/A 4th, Div. 3

April 25, 2009


In a week with perhaps the best case of the year (Arizona), we also get an outrage of the week, perhaps the outrage of the year. The California Court of Appeal has to really struggle even to come up with a traffic infraction to justify the detention in this case; get this, the headlights were out of alignment.


Alrighty, then. But the detention was illegally prolonged, under McGaughran (25 Cal.3d 577). Atwater (532 U.S. 318) says that the 4th Amendment isn't violated by a state law permitting a custodial arrest for a fine-only infraction.

This California Court of Appeal mangles Atwater and comes up with a rule that the 4th Amendment permits custodial arrests for infractions, and concludes that McGauhran isn't the law, so illegally prolonged detentions don't require uppression under the 4th Amendment.

Don't believe me: "if the law enforcement officers had probable cause to believe defendant
committed traffic infractions, then detaining him longer than necessary to simply cite him did not violate the Fourth Amendment." So they ignore a case from the California Supremes and essentially permit extended detentions justified by the most trivial of traffic violations.

Oh, and they skillfully don't even mention the binding cases from the U.S. Supremes barring illegally prolonged detentions, U.S. v. Sharpe (470 U.S. 675) and U.S. v. Place (462 U.S. 696).

And anyway, what does the scope of a custodial arrest have to do with an illegally prolonged detention prior to an arrest? What was searched? Sure enough, the police searched the car after the defendant was arrested and removed from it, violating our new winner, Arizona v. Gant, just decided by SCOTUS.!

People v. Branner; 2009 DJ DAR 5507; DJ, 4/21/09; C/A 3rd

April 21, 2009


It seems that every few years we get an observation post case. Here's this year's bad boy. The officer watched a claimed drug sale from a surveillance location. The DA claimed the EC 1040 privilege.

The court sustained the privilege and imposed no sanction. We ought to be winning these, but here we lose. The Court of Appeal stresses that the trial court here permitted extensive cross about distance and angle of view and only barred questions about the exact location where the ofr. was when he saw what he claimed to have seen.

Here is a critical point that we have to emphasize: essentially, the defense was only barred from asking the ultimate question. But the Court of Appeal goes nuts, trying tomake the distinction between relevance and materiality. Sure, it would be relevant to know where the officer made the observations from.

But material? The Court of Appeal finds lack of materiality because the officer's testimony about observations from the location were sufficiently corroborated by independent evidence, so there was no realistic possibility that disclosure would have enabled the def. to raise a
reasonable doubt.

Right, we're sure the defendant is guilty, so nothing you slimy defense lawyers could do would do you any good anyway, so we're just not going to let you do it. Nothing like a presumption of guilt.

People v. Lewis; 2009 DJ DAR 5321; DJ, 4/15/09; C/A 1st

April 21, 2009


The officer contacted the defendant and found out that he was on parole. Sanders (31 Cal.4th 318) permits a parole search. The only limitation on that search is em>Reyes (19 Cal.4th 743), which says that the search can't be arbitrary, capricious, or harassing.

The defense claims that this was a public strip search, and was thus harassing. The Court of Appeal goes to some pains to rule that this was not a public strip search. The search, though in public, was conducted in the back of a hotel parking lot in an area that didn't face the street.

They describe the search as the officer. lowering the defendant's pants a foot or so, then pulling back the elastic waistband of his underwear, permitting a visual search of his crotch area. The
only item of clothing the officer removed was the defendant's belt, the defendant's private parts were not exposed, and there's no evidence the officer touched the defendant's private area, he simply retrieved the bag of drugs. We're going to have to argue that had the officer done much more than this, it would qualify as harassing.

People v. Smith; 2009 DJ DAR 5224; DJ, 4/10/09; C/A 1st

March 26, 2009


The Defendant was instructed to follow police to room in office space where he worked while his office, home and car were being searched (with a warrant).

He was questioned with the door closed, but specifically told he was not under arrest, and that he would walk out when "we're done," but was not told he was free to leave.

The questioning was mostly friendly, though at one point the defendant asked the officer not to yell. Held, he was not in custody.

Was he really free to leave having been instructed (otherwise known as "ordered") to go to the office, placed in a closed room, and told he could leave "when we're done" (the converse of which is you can't leave until I am through with you)? Yeah, right.

United States v. Bassignani (9th Cir., 3/25/09, 07-10453) 09 C.D.O.S. 3766

March 26, 2009


Even though the trial court erred in ruling that the Defendant did not have standing to complain of a violation of wiretap laws in the monitoring of her boyfriend's phone, which she also used, Defendant was not entitled to suppression because "Ms. Ahamad never sought a hearing based on the claim federal law enforcement authorities utilized the drug trafficking warrant as a stratagem to discover evidence relating to the shooting of Mr. Larrainzar.

Nor did Ms. Ahamad challenge the federal court disclosure orders which resulted in the Los Angeles homicide detectives learning of the ongoing federally authorized electronic surveillance."

People v. Reyes (2nd Dist., 3/24/09, B201294) 09 C.D.O.S. 3803

March 12, 2009


Where prosecutors moved to dismiss misdemeanor charges against defendant due to lack of evidence after trial court granted defendant’s motion to suppress evidence, prosecutors could not appeal adverse ruling on suppression motion.

People v. Gallagher - filed January 30, 2009, San Mateo Superior Court, Cite as 2009 SOS 1525

February 16, 2009


Is the Supreme Court About to Kill Off the Exclusionary Rule?
Published: February 15, 2009. Click HERE for New York Times article.

In 1957, the Cleveland police showed up at Dollree Mapp’s home looking for a bombing suspect. Ms. Mapp would not let them in without a search warrant, but they entered anyway. The police did not find the bomber, but they came across a trunk containing “lewd and lascivious” books and pictures.

Ms. Mapp was convicted of possessing obscene materials, even though the evidence was taken without a warrant. She was tried in state court, like the overwhelming majority of criminal defendants. So it did her no good that federal courts had applied the so-called “exclusionary rule” since 1914 to bar the use of illegally seized evidence.

In 1961, in Mapp v. Ohio, the Supreme Court reversed Ms. Mapp’s conviction and adopted the exclusionary rule as a national standard. The court acknowledged that the rule might let some criminals go free, but it underscored that it was more important to compel the nation’s police forces to obey the law.

The court carved out exceptions over the years, but the basic rule laid down in Mapp has endured for nearly five decades. Now, Chief Justice John Roberts’s conservative majority on the Supreme Court is working to undo the exclusionary rule in a more fundamental way. It’s been a longstanding interest of Mr. Roberts’s. As a young Reagan administration lawyer, he worked on what he described in a memo as a “campaign to amend or abolish” the rule.

[COMMENTARY: Doesn't this warrant his recusal from any case addressing this issue?]

The Mapp decision has had both effects that were predicted when it came down. Some criminals had convictions thrown out, or avoided being charged, because evidence was obtained illegally or found by relying on illegally obtained information. But Mapp also changed the incentives for the police. It gave them less reason to enter a home or tap a phone without a warrant.

The exclusionary rule has always had critics. Long before Mapp, Judge Benjamin Cardozo said it allowed the criminal to go free “because the constable has blundered.” In recent years, it has become Exhibit A for those who argue that defendants get off on technicalities.

In 2006, in Hudson v. Michigan, Chief Justice Roberts assigned the majority opinion to Justice Antonin Scalia, who wrote a sweeping assault on the rationale for excluding illegally obtained evidence. Justice Scalia argued that “the increasing professionalism of police forces,” the increased availability of civil rights lawsuits, and other checks on police wrongdoing have sharply reduced the need for such measures.

Last month, the court eroded the rule still further in Herring v. United States. Writing for the majority, Chief Justice Roberts declared that evidence need not necessarily be disqualified if it was illegally obtained because of errors in police databases. Isolated mistakes of this sort, he insisted, are not among the exclusionary rule’s “core concerns.”

Justice Ruth Ginsburg, in dissent, was right to point out that in the modern age database errors can lead to many people’s rights being denied. The harm to a citizen who is arrested and searched on the street because a bureaucrat has made a computer error, she noted, is just the sort of invasion the founders worried about when they drafted the Fourth Amendment.

After Hudson and Herring, critics of the exclusionary rule have high hopes that the Roberts court will take the ultimate step of overruling Mapp v. Ohio. That would be a great setback for the rule of law.

Despite Justice Scalia’s claims, police misconduct is rampant. In the last few years, the Atlanta and Oakland police departments have had major scandals over officers’ lying to obtain search warrants. In this same period, of course, the federal government engaged in an illegal domestic wiretapping program, the extent of which is still unknown.

The exclusionary rule does more than simply put a check on police misconduct. It protects the integrity of the judicial system. If courts put people like Ms. Mapp in prison based on the actions of lawless, marauding police officers, respect for the law suffers.

There is no denying that the exclusionary rule allows a small number of criminals to go free because the police have blundered — which is certainly no minor matter. But the more faithfully the rule is applied, the more likely the police are to collect evidence lawfully.

As important as it is to convict criminals, the Supreme Court in Mapp rightly insisted that the Constitution must not be trampled in the process. “Nothing can destroy a government more quickly,” the court noted, “than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

February 2, 2009


I'm scared. I'm very, very scared. While I have always championed personal financial sanctions on police officers who violate the Fourth Amendment rather than exclusion of evidence (seems a stronger deterrent to me), the courts have historically thought otherwise. Now, if a cop violates your Fourth Amendment rights, the evidence he subsequently learns of as a result of the illegal search or seizure is suppressed and cannot beused in court against you.

Will our chief justice, who championed such causes in the past, lead the Supremes to total expungement of Fourth Amendment remedies?

Take a look at the URL below. Maybe so.

December 13, 2008



We were worried that the Supremes would wipe out Butler (202 Cal.App.3d
602). Butler says an officer can't stop a car to determine whether tinted windows in the car are illegally tinted. The officer can't detain to find out if there's a violation of law; the officer has to have reasonable cause to believe there's a violation. However, Butler lives to fight another day!

Both these cases involve stops for cars with temporary permits. In Raymond C., the officer sees a car with no license plates and no temporary permit in the rear window. The Supremes uphold a stop, even though it turned out that there was a permit in the front
window. The Supremes say that the stop was reasonable because driving past the car to see if there was a permit in the front window might have been dangerous. However, in Hernandez, the officer saw a car with no license plates which DID have a temporary permit in the rear window.


The officer stopped the car because a lot of stolen cars have forged temporary permits. The Supremes rule that this search was illegal, because the officer had nothing specific to support his belief. So I think Raymond C. is narrow, and Butler survives.

In re Raymond C.; 2008 DJ DAR 18112; DJ, 12/13/08; Cal. Supremes (we

People v. Hernandez; 2008 DJ DAR 18109; DJ, 12/13/08; Cal. Supremes
(we win)


November 25, 2008



Hold your horses. It's gonna be a tough ride. Here we go and buckle of for this piece of dribble.

FACTS: The police unlawfully stop the defendant. So this is an unlawful traffic stop. It is. There is no question. It's wrong and it's illegal. Get it?

During the stop, before any search, the police find that the defendant has a warrant. They arrest the defendant, search, and find drugs. Result? You're probably going to say that the unlawful stop invalidates the search. You would be wrong.

The Cal. Supremes say that the discovery of the warrant is an intervening circumstance that attenuates the taint of the antecedent unlawful traffic stop. Say that three times fast. Um, is this tort law or something. This seems incredible to me. They note that evidence of purposeful or flagrant police misconduct would require suppression, as would a stop undertaken as a fishing expedition.

They distinguish Sanders (31 Cal.4th 318), which held that an unlawful search can't be justified by later discovery that the defendant is on probation or parole with search conditions, saying that no search occurred here until after the police found the warrant.

People v. Brendlin; 2008 DJ DAR 17352; DJ, 11/25/08; Cal. Supremes


August 1, 2008


The defendant was arrested. He is transported to the police station. An hour after the arrest, the police seize the defendant's cell phone. Thirty minutes later, during interrogation of the defendant, the police access the phone's text message folder and retrieve an incriminating message.

The Court of Appeal has no trouble with this as a "search incident to arrest". You can see that the search wasn't contemporaneous with the arrest, but the Court of Appeal assures us that this doesn't matter. Searches incident to arrest are just fine, to protect the officer and to search for evidence of the crime.

People v. Diaz; 2008 DJ DAR 11973; DJ, 8/1/08; C/A 2nd, Div. 6

July 2, 2008


From the Los Angeles Times

Los Angeles judge drops Hollywood drug case after video contradicts police testimony
In echoes of Rampart scandal, defense attorney says officers planted cocaine on man accused of being a gang member. On surveillance tape produced at trial, one officer tells another: 'Be creative in your writing.'

By Jack Leonard
Los Angeles Times Staff Writer

July 1, 2008

A Los Angeles judge abruptly ended a trial and exonerated a man of possessing cocaine Monday after a courtroom confrontation in which a defense attorney produced a surprise video of his client's arrest that sharply contradicted the testimony of two police officers.

Superior Court Judge Monica Bachner dismissed charges against Guillermo Alarcon Jr., a grocery store worker, after prosecutors reviewed the tape and acknowledged that it was inconsistent with the officers' sworn testimony.


Los Angeles Police Department officials said they had launched an internal affairs investigation of the officers. Additionally, prosecutors said they would refer the matter to a division within the Los Angeles County district attorney's office that investigates police misconduct cases.

During the trial, which began Friday, the officers told jurors that they had chased Alarcon, 29, into his Hollywood apartment building last year and seen him throw away a black object. They testified that one of the officers picked up the object a few feet from where Alarcon was standing and discovered powder and crack cocaine inside.

But footage from the grainy video, which Alarcon's attorney said came from an apartment building surveillance camera, shows that it took the two officers more than 20 minutes to find the drugs. They were also aided by other officers in their search.

The quality of the tape, a copy of which was obtained by The Times, is poor and it is difficult to clearly hear what is being said. But at one point, an officer seems to make a reference to the arrest report that needed to be filled out.

"Be creative in your writing," the officer appears to tell another after the discovery.

"Oh yeah, don't worry, sin duda [no doubt]," comes the reply.

In allegations echoing misconduct from the Rampart corruption scandal of the late 1990s, Deputy Public Defender Victor Acevedo said the cocaine was not Alarcon's and described the prosecution's case as "completely trumped up."

"They have two officers who came into court and blatantly lied and planted evidence," he told Bachner on Monday.


March 27, 2008


The United States District Court for the Northern District of California has set the standards for strip searches occuring in the field, away from a jail or police station. Foster v. City of Oakland, 2008 U.S. Dist. LEXIS 24610 (N.D. Cal. March 27, 2008):

What is not clear is the extent to which a strip search may be conducted in the field. There is no case law suggesting that such a search may be performed in the absence of an arrest. All of the cases are premised on there being an arrest, not merely a detention or a stop for questioning.

An arrest must be based on probable cause and may thus justify some type of search depending on the circumstances. However, detentions and stops that are short of an actual arrest will not support a strip search or, indeed, any kind of search except for a Terry search when the standards of Terry v. Ohio, 392 U.S. 1 (1968), justify a Terry stop.

Given the limits on strip searches even in a jail setting, certainly the limitations are greater when the search is in the field pursuant to a valid arrest.


It is clear that the "full search" authorized by Robinson is ordinarily conducted for the officers' safety. A "full search" incident to arrest, however, does not permit a strip search or bodily intrusion. Like the searches in Fuller, the searches in the instant case are unrelated to prison security.

Field strip searches by definition occur before a suspect has arrived at a detention facility. And even after the arrestee has arrived at the facility, security concerns may not be great enough to justify invasive searches upon reasonable suspicion if the detainee is not to be admitted to the general jail population or the search is merely for evidence. Fuller, 950 F.2d at 1448. Only after an arrestee has arrived at a detention facility does institutional security become a factor, thereby permitting searches for weapons or contraband based upon reasonable suspicion. Prior to his arrival at the facility, an arrestee poses no threat to prison security, and officers in the field are adequately protected by their ability to perform security searches incident to arrest.

Therefore, the court concludes that officers in the field are generally limited to a search incident to arrest as described in Robinson and that strip and more invasive searches in the field may only be performed under exigent circumstances and with probable cause which may, consistent with the above, require a warrant.

In sum, the court concludes that the Fourth Amendment requirements for the three types of strip searches performed in the field--strip search, visual body cavity search and physical body cavity search--are as follows:

1) there must be exigent circumstances;

2) the search may only be performed on persons who have been lawfully arrested on probable cause and may not be performed on anyone for whom there is no probable cause to arrest;

3) the search requires probable cause that is independent of the probable cause found for the arrest;

4) the search may only be performed when there is probable cause to believe that the arrestee is in possession of weapons, drugs or dangerous contraband; and

5) additionally, physical body cavity searches require a warrant authorizing the search and must be administered by an authorized medical professional.


March 11, 2008


CALCRIM 362 (formerly CALJIC 2.03) tells the jury that they can consider a willfully false or deliberately misleading pretrial statement made by the def. in order to show consciousness of guilt, but that the jury can't convict solely based on such a statement.

The Court of Appeal rejects a challenge to CALCRIM 362, saying that it doesn't unfairly pinpoint one piece of evidence.

On a second issue, the Court of Appeal says that the court doesn't have a sua sponte duty to instruct on lack of flight by the defendant.

Comment: We search high and low for the case that says that the judge does have to instruct the jury that lack of flight shows consciousness of innocence, because the other side gets the opposite instruction that goes against us. But there's no such case. The closest is People v. Williams, 55 Cal.App.4th 648, which says that the judge has discretion to give such an instruction.

People v. McGowan; 2008 DJ DAR 3393; DJ, 3/11/08; C/A 3rd