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Wednesday, May 20, 2015

St. Louis Police Have Used StingRay Technology for Years -- They Just Won't Talk About It

Posted By on Wed, May 20, 2015 at 8:00 AM

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Carnahan Courthouse - GOOGLE STREET VIEW

For assistant public defender Megan Beesley, her journey down the StingRay rabbit hole began with five little words: "A proven law enforcement technique."

Beesley, who works out of the Carnahan Courthouse downtown, remembers the phrase leaping out at her when she read the police report from the post-Game 5 robberies on October 28, 2013. Her client was one of the men arrested for his role in the string of muggings, and the line was used as the only explanation for how authorities managed to find him and his alleged accomplices in the hotel room in Caseyville.

"A proven law enforcement technique" seemed almost like the cop-speak equivalent of Seinfeld's "yadda yadda yadda."

"It seemed like a very odd sentence to me," she says.

Beesley got the chance to ask about the phrase at a November 7, 2014, deposition of St. Louis police detective John Anderson.

"I just said, 'What does this mean?' The detective acted really weird, looks at the prosecutor, who acts really weird," she recalls. "They go outside and talk. He comes back in and awkwardly refuses to answer."

At a subsequent hearing, Anderson again said he could not answer, Beesley recalls, because of a "non-disclosure agreement that had to do with the FBI. So that confirmed to me that this was probably a StingRay."

In order to use the technology, sheriffs and police chiefs have historically had to sign a non-disclosure agreement with the FBI and the Harris Corporation agreeing not to provide the public with any information about how it works. According to an affidavit given by a supervisory FBI agent in a 2014 case in Virginia, if a prosecutor were to disseminate technical information about StingRay to media with international readership, it could constitute a violation of the Arms Control Export Act, which is a felony. That blanket of silence also covers court proceedings.

St. Louis police refused even to allow the Riverfront Times to view any non-disclosure agreement it may have with its cell site simulator provider or the FBI, declining our Sunshine Act request.

One such agreement, obtained from the Erie County Sheriff's Office in New York State, reads: "If the Erie County Sheriff's Office learns that a District Attorney, prosecutor, or a court is considering or intends to use or provide any information concerning the Harris Corporation wireless collection equipment...the Erie County Sheriff's Office will immediately notify the FBI in order to allow sufficient time for the FBI to intervene to protect the equipment/technology and information from disclosure and potential compromise."

In a handful of incidents around the country, prosecutors have dropped cases, offered plea deals or withdrawn evidence rather than disclose information about StingRay. That happened in Baltimore, Maryland; Tacoma, Washington; and Tallahassee, Florida — and even in homicide cases.

"It is troubling that their use of this extraordinary secrecy is getting in the way of proper government functions," says Wessler. "I suspect part of what this secrecy is protecting is constitutional violations."

Christopher Allen, a spokesman for the FBI Office of Public Affairs, says that the purpose of the non-disclosure agreements is to prevent criminals from learning how the technology works and figuring out a way to avoid it.

"Specific capabilities of certain equipment used by law enforcement agencies are considered Law Enforcement Sensitive, since their public release could harm law enforcement efforts by compromising future use of the equipment," he said in a statement. "As a last resort, after exhausting all other legal means to protect LES information, the NDA does require state and local law enforcement to drop a criminal case rather than compromising the future use of the technique by disclosing LES information."

He insists, however, that the FBI has never forced any jurisdiction to dismiss a case because of the agreement.

Regardless, Beesley is convinced that by dropping charges against her client, the St. Louis circuit attorney is helping honor a non-disclosure agreement signed by the city police. She and her colleagues scoured their current caseload and found the phrase "a proven law enforcement technique" in four different police reports.

"I think that's the closest we've come to the cops acknowledging this," she says.

Riverfront Times contacted several defense attorneys and only found one additional case with the "proven law enforcement technique" verbiage in the police report. Nick Williams, a criminal defense lawyer whose client was arrested and charged in a different robbery case, says he noticed the phrase even before the Post-Dispatch piece and has alerted the prosecutor at the circuit attorney's office to his concerns. His client's next court date is in June.

"It begs the question of whether or not there is an official policy in place, and if so, what is that policy?" says Williams. "The way in which this is being used on a local level is certainly an infringement on an individual's Fourth Amendment rights.

"A person has a right to privacy, and an infringement on that privacy should be protected against."


Although St. Louisans are just waking up to the fact that StingRay is swimming in their back yards, the secrecy surrounding the technology is beginning to drop away across the country. That's starting with increased willingness by local law enforcement to simply admit that they are using the devices.

For example, Baltimore disclosed recently that it deployed the technology 4,300 times since 2007. In Tallahassee, a police investigator admitted they'd used it 200 times. (The Post-Dispatch puts the number of approved pen register applications locally at 80.)

Legislators are showing increasing discomfort with StingRay. Ten states, including Illinois, Florida and Maryland, have passed some kind of legislation designed to force local law enforcement to obtain a warrant before using cell-phone-tracking technology. A bill Daniel Rigmaiden helped to shaped just passed in Washington State.

Even the federal government is paying more than lip service to the idea that its warrantless deployment of StingRay technology may be unconstitutional. Soon after, to the announcement by the DOJ that they will review the usage of the technology, the FBI went even further in a May 14 article in the Washington Post. The agency told the newspaper that its officers will now apply for a warrant before using StingRay, and that it's OK for local law enforcement to acknowledge the use of the technology, as long as details about how it works are kept secret.

"It's kind of throwing local agencies under the bus a little bit," says Wessler. "Now the FBI's saying, 'No, no, no, that's not what we really meant,' which is a helpful clarification now, but there are years' worth of cases where defense attorneys were kept completely in the dark, as well as judges, and that needs to be remedied right now."

Not everyone in the criminal justice system may be on board with the technology's black-box status either. Judge Garvey, who has praised the usage of StingRay, does not agree with the secrecy imposed by the nondisclosure agreements.

"I think the FBI — they're kind of dumb," he says. "They're being overly federal about the whole thing."

When the last of the four alleged Game 5 muggers had her case dropped in a St. Louis courtroom on April 27, Assistant Circuit Attorney Tanja Engelhardt made an interesting statement as reported by the Post-Dispatch. She let slip that though StingRay practices in St. Louis haven't been litigated yet, "They will be. This isn't the case."

In a statement to Riverfront Times, Trager nudged the sentiment slightly further: "The technology has been used around the country and has withstood challenges in the past. The legality of this technology has recently been challenged in this jurisdiction, and we anticipate it will be litigated in a court of law."

As for Brandon Pavelich, he's more confused than ever about his case. If it wasn't dismissed because of StingRay, what happened?

"If that's the big controversial issue, and that's not it, what the heck could it be?" he says. "That feels super sketchy. What are these guys doing?"

Then again, Pavelich says, it's not as though he just had his eyes opened to the fact that the criminal justice system doesn't always function properly. He has two brothers who've been in and out of the prison for years, he says, mostly for non-violent drug offenses and parole violations. He's not naïve.

"I really see the system as being stupid anyway," he sighs. "I'm not entirely surprised these things are happening."

Additional (and crucial) reporting by Chris McDaniel.

Email feedback or tips to the author at Jessica.Lussenhop@RiverfrontTimes.com.

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