The Mecklenburg County District Attorney’s office will review hundreds of criminal cases after a judge unsealed related records that allowed police to secretly track cellphones in their investigations.
The records give the fullest account to date about cellphone surveillance conducted by the Charlotte-Mecklenburg Police Department. They also provide one of the most extensive disclosures about a U.S. police department’s use of a powerful technology, commonly known as a StingRay, which law enforcement agencies and the federal government have fought to conceal from the public.
CMPD sought permission to use cellphone surveillance more than 500 times since 2010, or about twice a week, according to court records revealed Thursday.
Documents and interviews suggest judges rarely, if ever, denied authorization requested by CMPD to use equipment that can intercept cellphone information from criminal suspects and innocent people alike.
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In Mecklenburg County, the documents had remained sequestered in a filing cabinet at the clerk of court’s office. They were sealed at the request of police, who have said they were worried about criminal suspects avoiding detection.
Even the district attorney’s office had not seen the records. Deputy District Attorney Bart Menser said officials would determine what, if any, documents needed to be shared with defense attorneys.
Criminals could potentially challenge convictions if police did not disclose information used to build a case against them.
The Charlotte Observer and its news partner, WBTV, filed a petition last month in Superior Court to unseal Mecklenburg County records dating to 2006. Senior Resident Judge Richard Boner this week ordered the records unsealed.
But many questions remain unanswered.
The files contain no records showing CMPD received court permission to use a StingRay from when it first purchased the device in 2006 until 2010. That means there is no way to readily determine how often police used the device, if they were justified or if they had judicial oversight during that time span.
Senior Deputy City Attorney Judith Emken said during that period, police applied for court orders giving them permission to deploy the device, generically called a cell-site simulator.
Court officials, however, did not file the records in the clerk’s office. Instead, police detectives kept copies in investigative files, which are not open to public inspection.
The arrangement violated the fundamental principle that American courts should be open and transparent, said Linda Lye, an attorney with the American Civil Liberties Union.
“The government was effectively making surveillance law secret,” Lye said. “The government should not be able to get around open records law because of chaotic record keeping.”
She said it would be “remarkable” if police had not shared the information with prosecutors.
Applications for cellphone surveillance filed by CMPD give the suspect’s name, a brief description of the case and boilerplate language connected to phone data.
There is no mention of a StingRay or any indication of how the device would be used.
That is significant because some legal experts question whether the surveillance violates the Constitution’s prohibition against unreasonable search and seizure.
Local defense attorneys say the lack of information means they don’t know whether police investigations were properly conducted. Others simply don’t like government snooping when they’ve done nothing wrong.
“Police don’t want to disclose how it works,” said Nicole Hardin, a Florida attorney. “It’s like fighting a shadow. It’s hard to figure out.”
Officials defend practice
The issue first surfaced last month when an Observer report detailed how CMPD secretly tracks suspects in serious crimes such as homicides, robberies and kidnappings with a cell-site simulator.
The equipment imitates a cell tower. Such devices can provide officers with the serial numbers, location and other information about nearby phones, laptop computers and tablets that connect to a cellular network.
Charlotte City Manager Ron Carlee has strongly defended CMPD’s surveillance of cellphones and other wireless devices, saying officers do not eavesdrop on conversations or store data from innocent people
“It is my conclusion that procedures in place by CMPD are designed to protect constitutional rights and that to deny CMPD the use of this modern investigatory tool would not be in the best interest of public safety for the Charlotte-Mecklenburg community,” Carlee has said.
On Thursday, city officials declined comment. A spokesman said CMPD Chief Rodney Monroe needed to study the documents before commenting.
In past statements, Monroe has said the department uses a cell-site simulator in investigations of serious crimes, adding that his department is “mindful of our community’s constitutional rights while ensuring public safety.”
Menser, the deputy district attorney, said he saw the cellphone surveillance documents for the first time this week.
He said prosecutors are obligated to turn over evidence to defendants through the legal process of discovery. Experts said that step is necessary to assure a defendant a fair trial.
Menser said staffers will review all 529 orders to see whether the information gathered was used to win convictions. In those cases, he said, they would notify defendants and their attorneys about the information. He said he thought that in most cases, cellphone surveillance had been used only to find fleeing suspects who had already been charged, not to build a case against them.
For that reason, he said, he is confident the convictions should stand. “That is our fervent hope,” Menser said.
He said his office would try to determine, “Was it our responsibility to turn it over?”
Prominent Charlotte defense attorney George Laughrun said he anticipates that some criminals will seek to challenge their convictions.
“We’re just waiting on lawyers to get letters from prisoners saying, ‘The state didn’t give me full discovery,’ ” Laughrun said.
He said he did not believe that prosecutors intentionally hid information from defendants and their attorneys.
“They are as much in the dark about this as anyone,” Laughrun said. “It’s a shock to them.”
Federal officials have ordered cities not to disclose details about cell-site simulators. They argue that criminals and terrorists could use the information to avoid arrest.
Privacy groups for years have tried – mostly unsuccessfully – to learn how police deploy the technology. They say the secrecy prevents the public from knowing whether officers followed the law.
Judge Boner said he ordered the CMPD cellphone documents unsealed this week because the cases are closed and arrests had been made.
“There was no good reason to keep them sealed,” he said.
Boner said police have long sought sealed court orders for cellphone surveillance, but he did not require the records be kept in the clerk’s office until 2010. That’s when he attended a judicial conference at the UNC School of Government and learned that all orders judges sign must be filed by clerks.
Before that, he would sign orders authorizing cellphone surveillance and give the paperwork back to police.
“I wasn’t aware we weren’t keeping it,” Boner said. “It’s not something I spent a lot of time thinking about.”