Charlotte-Mecklenburg police and prosecutors will disclose more details to judges, criminal defendants and the public about a once-secret cellphone surveillance program.
Defense attorneys and privacy groups had complained that officers gather phone data from both suspects and innocent bystanders without proper oversight.
Among the changes:
The changes come less than four months after an Observer investigation revealed that CMPD uses a device called a StingRay that mimics a cellphone tower. The device provides serial numbers, location and other information about nearby phones, laptop computers and tablets that connect to cellular networks.
In response to the newspaper’s reporting, Mecklenburg County Senior Resident Superior Court Judge Robert Bell said judges began more closely scrutinizing surveillance requests and asking when officers planned to use a StingRay.
“There is no question they are being upfront,” Bell said of police. “You know what they are asking for.”
Bell said CMPD’s revised documents tell judges when officers want to deploy a StingRay, which he described as a positive move.
Judges also have said that CMPD has discussed a system to routinely unseal the documents after a period of time, a departure from the previous practice. The department said it supports releasing records in closed cases.
CMPD and city officials defend how officers conduct cellphone surveillance, saying they do their jobs while respecting privacy rights. The department said that police do not eavesdrop on conversations or store data from innocent people when they use a StingRay.
But the secrecy surrounding the surveillance has made it difficult for judges and defense attorneys to protect the public from potential police overreach, said George Laughrun, a prominent Charlotte defense attorney.
“Judges probably didn’t understand” how the technology worked, Laughrun said. “I didn’t understand it. What is it? What does it do? What do you get from it?”
Defendants seek information
Experts said it is rare for local police departments to even acknowledge they own the technology because federal authorities have ordered them not to divulge information. The FBI has said disclosing even minor details could help criminals learn how to avoid detection.
But some defense attorneys are asking Mecklenburg County prosecutors to turn over evidence gathered from StingRays.
The requests will test North Carolina’s open discovery law, which is among the broadest in the country.
To ensure fair trials, the law says defendants should be allowed to examine nearly all evidence used against them.
Defense attorneys said they did not know details about CMPD’s cellphone surveillance until an Observer investigation published in October revealed the department had owned a StingRay for eight years.
The Observer and its news partner, WBTV, filed a petition to unseal records related to CMPD cellphone tracking dating to 2006. Mecklenburg Senior Resident Superior Court Judge Richard Boner later ordered the documents connected to past cases unsealed.
Defense attorneys said the secrecy denied them the chance to challenge evidence in court. Some questioned whether StingRays violate the Constitution’s prohibition against unreasonable search and seizures.
Laughrun said he and other lawyers have revised their discovery requests to demand information about cellphone tracking. Now, Laughrun said, prosecutors cannot sidestep the issue by saying defense attorneys failed to request the information.
“The question is, did the police give it to the district attorney’s office?” Laughrun said. “It’s no excuse. They have a duty to know about it.”
In an email, a spokeswoman for Mecklenburg County District Attorney Andrew Murray said the office has always followed discovery laws.
The D.A.’s office has launched an ongoing review into hundreds of cases to determine if the information gathered by phone tracking was used to win convictions. In those cases, officials have said, they would notify defendants and their attorneys.
Prosecutors said they believed 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.
That is why officials said they are confident the convictions should stand.
Charlotte-Mecklenburg police Chief Rodney Monroe has denied vigorously that the department abused discovery laws.
CMPD gave prosecutors court records related to cellphone surveillance in some cases, Monroe has said.
In other instances, he said, officers did not provide documents because the department believed it was not required under the law. In those cases, the use of cellphone tracking was not central to charges against a suspect, Monroe said.
CMPD: More clarity
CMPD told the Observer it has revised court papers that judges review before granting officers permission to track phones in an effort to “improve the effectiveness of the process and provide greater transparency.”
The agency would not provide examples of the new documents, but said the applications more clearly describe investigative tactics, including cellphone tracking.
CMPD says it now includes definitions for each type of equipment officers deploy in its applications to judges. Documents also provide more information in each case about the legal grounds for an officer to make an arrest or search a property.
Jeff Welty, a professor of public law and government at the UNC-Chapel Hill School of Government, said when officers ask for court authorization to perform surveillance they should always make clear what they are seeking permission to do. If the application pertains to technology, he said it should be clear what technology is being used.
In the past, experts told the Observer, applications CMPD submitted to the court were too vague for judges to provide meaningful oversight.
They said that the court orders did not mention StingRays or the more generic term cell-site simulators. Documents also did not spell out how police tracked phones.
Judges most likely had no idea how investigators would monitor phone data, experts said.
More transparency increases the chance that judges will reject requests from CMPD to conduct cellphone surveillance, experts said.
Documents and interviews suggest Mecklenburg judges rarely denied authorization. Monroe said he could only recall one time when a department request has been rejected.
Asked about CMPD’s changes to court papers, legal experts said it is impossible to know if the department is now practicing more transparency because officials did not disclose the new wording.
“There hasn’t been a lot of candor with the judiciary,” Nicole Hardin, a Florida attorney who consults defense lawyers about StingRays. “I find it kind of troubling they won’t let anyone see the language.”
Anthony Scheer, a Charlotte defense attorney, said the change amounts to a “bare minimum first step” toward transparency.
“If you want to ask a judge to perform an intrusion, you should at the very least be honest with the judge and tell them what the intrusion is,” Scheer said. “Telling the judge what you’re doing is a basic part of the job.”