Police likely will face more questions when they ask the court for permission to secretly track cellphones during their investigations, Mecklenburg County’s incoming senior judge says.
Superior Court Judge Robert Bell told the Observer he believes recent media coverage will prompt local judges to ask police when they plan to use a surveillance device, commonly called a StingRay, that law enforcement and the federal government have fought to shield from public view. It mimics a cellphone tower and collects phone data from both crime suspects and innocent people.
Bell also said he would be willing to consider changes to how the court oversees the surveillance if defense attorneys, police or others initiate proposals.
His remarks come after recently released documents spurred a review into whether Charlotte-Mecklenburg police and prosecutors disclosed enough information about how officers pursued suspects.
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Legal experts raised doubts about whether the applications police use to obtain permission for cellphone tracking give necessary details for judges to provide meaningful oversight.
Privacy groups and others who reviewed the documents at the request of the Observer said it is apparent the courts did not know when police were using a StingRay or that officers gathered phone data from innocent bystanders.
Bell credited a series of Observer reports with increasing awareness among judges about the issue. They now realize their decisions could come under scrutiny, he said.
“After your stories, any judge is going to ask” if police plan to use a StingRay, said Bell, who will become senior resident judge in January. The title gives him designated powers and duties that other superior court judges do not share. “It’s the responsibility of the judges to ask questions if they don’t have enough information.”
Bell said that he could not recall ever denying police permission to perform cellphone tracking but that there were cases where he voiced concerns.
“I have said, ‘This request doesn’t make any sense; you need to get me more information,’ ” Bell recalled.
Documents and interviews suggest that CMPD requests for cellphone surveillance have been denied just once. Judges have approved more than 500 applications for tracking since 2010, records show.
Chris Soghoian, principal technologist and senior policy analyst for the American Civil Liberties Union, said that shows police were not transparent with judges about the impact on innocent bystanders when officers used a StingRay. The device can capture cellphone data from anyone in the vicinity of the target, raising privacy concerns.
It also can interfere with cellphone service, run down phone batteries and jam more secure cellular networks in a given area, Soghoian said.
“Police are getting approvals because they are hiding the information from judges,” he said.
A spokesman for CMPD said city attorneys and other officials were unavailable for interviews because of the holiday weekend.
The department issued a written statement, saying that officers appear before judges when applications for cellphone surveillance are submitted for approval. They answer questions from the judges.
“The Charlotte-Mecklenburg Police Department is prepared to address any additional inquiries from the court during the process that would assist us in capturing these dangerous suspects,” the statement says.
Records prompt review
The Charlotte Observer and its news partner, WBTV, filed a petition in October to unseal records related to CMPD cellphone tracking dating to 2006. Mecklenburg Senior Resident Superior Court Judge Richard Boner earlier this month ordered the documents unsealed.
Records revealed that CMPD asked the courts for permission to use cellphone surveillance an average of twice a week. Police Chief Rodney Monroe has said the court orders allow investigators to get a range of cellphone information, and they used a cell site simulator, also known as a StingRay, in less than half the cases.
Court officials failed to keep records of court orders from 2006, when the city first purchased a cell site simulator, until 2010. That is significant because there is no way for the public to see how often police used cellphone surveillance or how judges responded during those four years. Only records since 2010 were kept by the court.
StingRays can provide officers with serial numbers, location and other information about nearby phones, laptop computers and tablets that connect to a cellular network.
Privacy groups have tried for years to learn how law enforcement uses the technology. They question whether the equipment is so intrusive it violates the Constitution’s protections against unreasonable search and seizure.
Monroe and Charlotte City Manager Ron Carlee have defended how officers use the device, saying they have balanced constitutional rights and public safety. They have stressed that police do not eavesdrop on conversations or store data from innocent people.
Records show that Charlotte-Mecklenburg police used cellphone surveillance to make arrests in high-profile cases including arresting the ex-boyfriend of Bianca Tanner this summer and charging him with first-degree murder in the death of the second-grade teacher.
But after the court orders were unsealed, the Mecklenburg County District Attorney’s office said it would review hundreds of cases to determine what, if any, information should have been shared with defense attorneys and their clients.
Criminals could challenge their convictions if they can prove police did not reveal evidence used against them through a legal process called discovery. The right to discovery is meant to ensure fair trials for defendants.
Monroe has insisted CMPD did nothing wrong. In most cases, he has said cellphone tracking was used to locate suspects who already had been charged with crimes. Monroe said that means the tracking was used to bring a suspect into custody and the government had no obligation to share those records.
Legal experts, local defense attorneys and even Judges Bell and Boner have disagreed with that view.
“In general, our statute says any information from the (police) file should be turned over,” said Jeffrey Welty, a law professor at the UNC School of Government. “On its face, we would require it be turned over.”
Some experts who reviewed documents granting CMPD authorization to perform secret cellphone surveillance said it is unclear whether the court orders legally give officers authorization to use a cell site simulator to track a suspect’s location.
They noted that the court orders do not mention StingRays or cell site simulators. Judges likely had no idea how investigators would collect data, they said, because the applications are broad and the language is vague.
Some said judges might be confused because the documents look like applications for pen registers, which trace signals from phones but do not capture their contents or precise location. StingRays are considered more intrusive because they can give police real time location information about a suspect and are powerful enough to penetrate a home’s walls.
Courts often consider approval for pen registers routine since police only need to show the information is relevant to their investigation to receive permission.
“Maybe they told the judges verbally, but they clearly omitted from their paperwork identifying the device or specifying the activity (the police) intended to engage in, and it looks like they omitted it for the purpose of concealing what they were doing in case anyone ever saw these documents,” said Anthony Scheer, a Charlotte defense attorney.
The information is vital for judges because they need to weigh public safety and privacy rights in each case, Scheer said.
Stephanie Pell, an assistant professor at the U.S. Military Academy’s Army Cyber Institute, said the surveillance applications should be more explicit in describing what police are asking the courts to approve.
“From a judge’s perspective, it would be difficult to know what I am authorizing,” said Pell, a former federal prosecutor. “It raises a lot of questions.”
She noted the orders do not make it clear when police intend to use a StingRay. It’s an important distinction since the law is unsettled on whether police should obtain search warrants before using real-time cellphone data to track a suspect’s whereabouts.
“There are legitimate questions about StingRays collecting information and the breadth of the information they collect,” Pell said. “They are not in lockstep with pen registers.”
Mary Fan, a law professor at the University of Washington, said the applications for court orders provide information about what police plan to do. She pointed out that the language suggested police would intercept cellphone signals to locate suspects.
“Is it the obligation of police to sit down with a judge and break down the technology?” Fan asked rhetorically.
She said it should come as no surprise nearly all the applications for cellphone surveillance in Mecklenburg County were approved since 2010.
“When it comes to the application, there is a level of trust between the judge and law enforcement,” said Fan, a former federal prosecutor. “They see the same agents.”
But she acknowledged that in recent years, the courts have grown more skeptical about the legality of police using cellphones to track a person’s location in real time.
“There’s been a shaking up of the law,” Fan said. “The case law and the guidance from the court is lagging the technology.”
In Pierce County, Wash., superior court judges recently decided to require police to state in phone surveillance applications when they plan use a cell site simulator, according to The News Tribune in Tacoma.
Police also must swear in their affidavits that they will not store data collected from people who are not the target of the investigation, the newspaper reported.
Judge Bell said legislators make the laws. He wouldn’t commit to making any changes himself.
“My job is to carry out what the law is, not what I wish it to be,” Bell said.