Rather than have police disclose the controversial ‘stingray’ surveillance practices that lead to the arrest of an armed robber, state prosecutors in Tallahassee, Florida have opted instead to grant the man a plea deal in order to keep from having to reveal the methods they used to catch him.
20-year-old Tadrae McKenzie and two buddies robbed a small-time pot dealer of $130 worth of weed using a BB gun, the Washington Post reports. Under state law, that was robbery with a deadly weapon, punishable by a mandatory minimum of four years in prison.
Before trial however, McKenzie’s legal team uncovered that investigators used a controversial surveillance tool called ‘Stingray’ to obtain his arrest. In an unprecedented move, a state judge ordered police to show the device to the attorneys.
Rather than show the equipment and disclose the methods taken to procure McKenzie’s arrest, the state offered him a plea deal. McKenzie is currently serving six months’ probation after pleading guilty to a second-degree misdemeanor.
A USA Today investigation published late last year revealed that at least 25 police departments across the country own and operate whats been dubbed a “Stingray.” Stingrays are portable devices that mimic a cell tower and trick nearby cell phones to connect to it.
The Stingray then captures the connected devices’ data, allowing law enforcement to track users’ locations. They are relatively small and easily transportable.
Florida law enforcement agencies have stonewalled public records requests by the American Civil Liberties Union about their use of the technology, Watchdog.org previously reported. This culminated with US Marshals raiding the offices of police in Sarasota to confiscate Stingray records in order to prevent their release.
The FBI has since placed a gag order on discussing stingray technology on grounds that revealing the device’s operation will compromise its effectiveness.
The ACLU has identified 48 agencies in 20 states and the District of Columbia that own stingrays, but because many agencies continue to shroud their purchase and use of stingrays in secrecy, much is still unknown regarding the use of stingrays by law enforcement agencies nationwide.
The FBI and Tallahassee police say that the device is used only with an appropriate court order and that they do not collect call or text-message content. The FBI recently said however, that search warrants aren’t required to deploy the technology.
The Supreme Court has ruled using GPS devices to track people without warrants is unconstitutional. They have ruled that warrantless cellphone searches are unconstitutional. But they have not particularly looked at warantless cellphone tracking.
The Fifth Circuit Court of Appeals however, ruled last year that individuals have no reasonable expectation of privacy over their location data. The decision states that location data is a “business record” created by private companies with the implicit consent of cell phone users and therefore are not subject to privacy protections.
The rationale was that cell phone companies are not required by the government to create or retain this data and that citizens are not required by the government to carry or use cell phones, thus making this data subject to the Third Party Doctrine and removing any expectation of privacy.
A ruling in June of last year, from the 11th Circuit Court of Appeals, contradicted that ruling finding that police “must obtain a warrant before collecting cellphone location data.” The opinion affirms that acquiring records of what cell towers a phone is connected to, and when it was connected to them, constitutes a Fourth Amendment search.
In its reasoning, the court noted that while the Fourth Amendment has traditionally been applied to property rights, it’s gradually expanded to protect much more, including communications.
“In the 20th century, a second view gradually developed,” the court wrote, “that is, that the Fourth Amendment guarantee protects the privacy rights of the people without respect to whether the alleged ‘search’ constituted a trespass against property rights.”
While the 11th Circuit ruling can’t overturn the Fifth Circuit ruling because of their separate jurisdictions, it adds critical precedent to a privacy question that’s still far from decided across the country.
To see the police departments in your state that have been documented using stingrays CLICK HERE.