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Police Surveillance FAQs

Would the Government actually bug the courthouse grounds to eavesdrop on private conversations?

Answer:

Yes, they would, and they did just this by secretly installing microphones in at least three locations outside a California courthouse in 2009 and 2010. A motion was recently filed by criminal defendants who are seeking to prevent the use of hundreds of hours of recorded conversations as evidence against them. With the go-ahead from the Department of Justice and FBI lawyers, the government made the warrantless recordings with electronic bugs hidden in a planter, a wall-mounted metal sprinkler box and vehicles parked near an entrance to the courthouse. This violates a defendant's Fourth Amendment rights of a reasonable expectation of privacy. Or does it? Your home, your car, your lawyer's office are all private places. Are places that are open to the public (even if you think they're private) really private?

While the bugs were placed in public places, they were strategically put in places immediately outside the courthouse, where the government knew they would pick up on conversations between defendants, family members, witnesses, and their lawyers. People's expectation that discreet conversations outside a courthouse would remain private is surely one that society is prepared to recognize as reasonable. Private affairs are routinely discussed as citizens, their lawyers and even judges walk to and from court. Lawyers often take clients aside outside the courthouse (or in the courthouse hallways) for privileged conversations. Common experience and everyday expectations teach that individuals frequently have private conversations near the courthouse despite the public's access to this location. We expect that such conversations are not subject to the types of dragnet electronic eavesdropping that took place in these instances. The court has not yet ruled on whether or not to admit these recorded conversations against the various defendants (my bet is that they'll be excluded, that is, thrown out).

Lesson Learned:

Watch out! This is a new low for law enforcement...but it teaches a valuable lesson. The Feds will stretch common sense and the law in order to get convictions. So never talk with your lawyer or others just outside the courthouse anymore - even though it's a common practice. You never know who might be listening in. Both the federal and state courthouses in Jacksonville, Florida have very nice private conference rooms for lawyers and their clients to use - so take advantage of them, and don't talk about your case in open, public places. Or go to your lawyer's office to discuss confidential matters.


Are more government agencies using undercover operations?

Answer:

Yes, they are. In a front page article in "The New York Times", dated November 16, 2014, the federal government has significantly expanded undercover operations in recent years, with officers from at least 40 agencies posing as business people, welfare recipients, political protesters and even doctors and ministers to ferret out wrongdoing. At the Supreme Court, small teams of undercover cops dress as students at large demonstrations outside the courthouse and join the protesters to look for suspicious activity. At the Internal Revenue Service, dozens of undercover agents chase suspected tax evaders worldwide, by posing as tax preparers, accountants, drug dealers or yacht buyers. At the Agriculture Department, more than 100 undercover agents pose as food stamp recipients at thousands of neighborhood stores to spot suspicious vendors and fraud. As a Jacksonville criminal defense attorney, I have seen undercover cops used in many different situations.

Some agency officials say such operations give them a powerful new tool to gather evidence in ways that standard law enforcement methods do not offer. But the broadened scope of undercover work, which can target specific individuals or categories of possible suspects, also raises concerns about civil liberty abuses and entrapment of unwitting targets. These operations reflect a more aggressive approach to growing criminal activities like identity theft, online solicitation and human trafficking. But undercover work involves, at it's core, government deceitfulness, lying and participation in criminal activity. The Justice Department has issued new guidelines to prosecutors last year to tighten oversight of undercover operations. Defendants who are prosecuted in undercover operations often raise a defense of entrapment, asserting that agents essentially lured them into a criminal act , whether it is buying drugs from an undercover cop or providing fraudulent government services. But the entrapment defense rarely rarely succeeds in court.

Lesson Learned:

Is it then hopeless to fight a criminal prosecution involving an undercover agent? Hardly. One of the first things I ask undercover cops who testify is whether or not they tape recorded their conversations using hidden recording devices. These devices have become almost inconspicuous and can pick up conversations very well. But oftentimes, they are not used by undercover agents, who cite concerns for their safety as the prime reason for not wearing them. While this answer may work when drug dealing is involved, it's less believable when regular citizens are involved. Also, undercover agents usually pay (or overpay) some person for information leading to the criminal wrongdoers. The person paid is usually a criminal himself...and this does not sit well with juries. A good criminal defense lawyer can put the government on trial, so to speak, but examining the way the undercover agent acted. In some instances, jurors become so turned off by the undercover agent and his tactics (think Denzel Washington's character in the movie "Training Day") that they acquit the person charged with the criminal activity.


Can the police track my whereabouts when I use my cell phone?

Answer:

Without a search warrant police tracking is illegal . The Supreme Court of Florida, in Tracey v. State, ruled, on October 16, 2014, that the police cannot access real time cell site location information in order to track a person using his or her cell phone without first having probable cause to do so (and a search warrant). The Court held that a person has a reasonable expectation of privacy in the location signals transmitted by his or her cell phone - even on public roads. As a Jacksonville criminal defense lawyer, I can tell you that the police use this type of surveillance every day.

Whenever you dial a number using your cell phone, your phone connects to (usually) the cell phone tower that you are closest to, in order to complete the call. So for, example, if you are driving from Jacksonville to Tampa and you make five phone calls along the way, your travel can be tracked because your phone will connect to different cell towers along the way. And if the police access this information, they will know the times that you were at each place along the way.

Shawn Tracey was convicted of possessing more that 400 grams of cocaine. The police learned that Tracey purchased cocaine in Broward County for distribution on the west coast of Florida. They got his cell phone number and started monitoring his phone calls. Then, they got information from his cell phone service provider, including real time cell site location information given off by his cell phone when he made phone calls. They used this information to monitor his location. After tracking Tracey to his final location, he was stopped in his car and searched. Cocaine and cash were found in his car. The police did not have a court order for the real time cell site location information they were getting from Tracey's cell phone provider. In short, they did not have a court order to track him. Tracey moved to suppress this evidence. The lower court denied his motion, holding that Tracey did not have a reasonable expectation of privacy in his whereabouts on public streets and highways.

But the Supreme Court of Florida ruled that the use of real time cell site location information to track Tracey violated his Fourth Amendment rights. Accessing this information by the police constituted a 'search' for which they needed probable cause (and a search warrant). As the court noted, our whereabouts can now be easily determined by the police. All it takes is for them to access our cell phone information. The court ruled that we have a reasonable expectation of privacy in our whereabouts, even on the public streets. Tracey's motion to suppress this evidence should have been granted, the court ruled.

Lesson Learned:

This is a groundbreaking decision in favor of an individual's right to privacy in our even increasing electronic age, Simply, put, this type of tracking is an invasion of our privacy. When we use our cell phones we don't expect the government or the police to be tracking us. The electronic monitoring of a citizen's location can generate a comprehensive record of a person's public movements which that person may wish to keep private, such as visits to the phychiarist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club or even the criminal defense lawyer's office. Today, few people venture out without their cell phones. If the police want to track a citizen this way, they must get a search warrant.


Can I be placed at a crime scene with nothing more than cellphone records?

Answer:

Yes, you can. However, the use of cellphone records to place suspects at or near crime scenes is coming under attack in courts nationwide. Cellphone records are often used as evidence, relied upon to trace which cell tower was used to make or receive a call and then determine a caller's whereabouts. But experts say that using a single tower to precisely locate where someone was at the time of a crime has severe limitations. And while good criminal defense lawyers now recognize the problems with such evidence, the FBI continues to rely heavily on this form of 'evidence' in its investigations. As a Jacksonville criminal defense lawyer, I have argued the unreliability of this type of evidence.

In fact, the FBI wants to expand its full-time team of 32 agents dedicated to the analysis of cell-site data and it has trained more than 5,000 state and local police investigators in the basic methodology. But the expert testimony in court is often incorrect and judges are starting to rule that the analysis of cellphone records is not scientifically valid or reliable in locating people, in part because investigators have overstated its accuracy.

The courts, telecommunications and forensic experts point to the case of Lisa Marie Roberts, wrongly imprisoned for nearly 12 years after both Portland prosecutors and her defense lawyer misunderstood cellphone evidence, as an example of how the methodology can be misused. "Complicated telephone technology is frequently oversold and under-defended in the courtroom", says Michael Cherry, a former Bell Labs and NASA consultant. When both prosecution and defense have an equal understanding of cellphone technology-issues which are now much disputed in the courts- then the end result will be a much better understanding of cell-tower technology and better use of cellphone evidence.

In 2012 alone, federal and local law enforcement agencies made more than 1.1 million requests for the personal cellphone data of Americans for a variety of investigative reasons. But that may become more difficult. A federal appeals court ruled, in August of 2014, that law enforcement agencies must obtain a search warrant for cellphone location data.

But how trustworthy is the data? At the heart of the controversy is a debate about how cellphone calls are routed and the range of the cell towers with which the phones connect. Law enforcement maintains that they can place a suspect in a particular area because a cellphone, when making or receiving a call, usually selects the closest tower with the strongest signal and that most towers have a range of no more than two miles. However, numerous experts and telecommunications workers say the FBI analysis techniques are wrong: cellphone signals do not always use the closest tower when in use but instead are routed by a computerized switching center to the tower that best serves the phone network based on a variety of factors. In addition, the range of cell towers varies greatly and tower ranges overlap significantly. One forensic expert stated that "I've seen proof that two individuals, subscribed to the same cellular provider, standing next to each other-on surveillance -can get different towers".

Consider the case of Lisa Roberts. In the summer of 2002, she was thrown in jail in Portland, Oregon and charged with the murder of her girlfriend, who had been found strangled and dumped in a park. Roberts strongly maintained her innocence and demanded a trial. On the eve of her trial the prosecutors revealed new evidence: her cellphone records, showing she used her phone near the park where her body was found. Without examining the evidence, her lawyer advised her to plead guilty, saying the records could "pinpoint" her near the crime scene. Roberts reluctantly accepted a plea bargain for manslaughter and a 15 year sentence. Years later, new lawyers examined her phone records and discovered that the prosecution's cellphone evidence was thoroughly flawed. A judge later threw out her conviction and released her from prison after nearly 12 years behind bars.

Lesson Learned:

Never trust a prosecution expert witness regarding cellphone tower evidence. This evidence is not reliable or scientific and must be challenged by a lawyer who understands this type of evidence. Better yet, if faced with this evidence, hire an expert of your own to contest it. It may be expensive, but it may well mean the difference between freedom versus prison.


Can the police use a stingray to track the location of my cell phone?

Answer:

A stingray is not just a fish that glides around the ocean floor with a long tail. It's also a shorthand term for an IMSI catcher, which simulates a cellphone tower to trick nearby mobile devices (like your cellphone) into connecting with them, thereby revealing their location. A stingray can see and record a device's unique ID number and traffic data, as well as information that points to it's location. By moving a stingray around, the police can triangulate a device's location with greater precision than is possible using data obtained from a carrier's fixed tower location. And yes, the police in Florida can and do use this controversial surveillance tool to track your cell phone. I have seen it done as a Jacksonville criminal defense lawyer.

Can't the police just put a tracking device on your car to see where you go ? Not without a search warrant, they can't. The U.S. Supreme Court, in United States v. Jones, held that affixing a GPS device to a car constitutes a search, for which a warrant must be obtained. In Jones, the police actually did obtain a warrant allowing them to place a GPS tracking device on the underside of Jones' car, but the warrant had expired. The police left the device in place for weeks (after the warrant expired) and it gave them information that ultimately led to the discovery of incriminating evidence of drug trafficking. Jones was convicted, but appealed on the grounds that but for the illegal tracking device, the police would not have discovered the incriminating evidence. The court agreed with Jones and his conviction was overturned.

The Jones case had quite an impact. According to the FBI's general counsel, the agency was forced to turn off about 3,000 GPS devices that had been placed on automobiles without warrants. But now, the police have found another way to track you and gather information (secretly) in the form of a stingray. The bigger question is whether long term remote monitoring violates a person's reasonable expectation of privacy. While the use of stingrays is not a physical intrusion into your car, home or personal property, should the government or police be allowed to remotely track your whereabouts by monitoring your cell phone's movements without first getting a search warrant? Put another way, do people have a reasonable expectation of privacy as to their movements and location - even when the location is public?

If you've learned anything by now by reading my posts, it's that the cops hate going to court and getting search warrants. They would rather operate on suspicion and hunches. The American Civil Liberties Union (ACLU) recently learned that Florida detectives obtain permission to use stingrays simply by filing applications with the courts under Florida's "trap and trace" statute instead of obtaining probable cause search warrants. Trap and trace orders generally are used to collect information from phone companies about telephone numbers received and called by a specific account. A stingray, however, can track the location of cell phones, including private spaces.

Recently, the Tallahassee police department revealed it had used stingrays at least 200 times since 2010 without telling any judge because the device's manufacturer made the police department sign a non-disclosure agreement that the police claim prevented them from disclosing use of the device to the courts. The ACLU has filed numerous records requests with police departments around the country in an effort to uncover how often the devices are used and how often courts are told about them. In Sarasota, Florida, after filing just such a request, the U.S. Marshalls Service seized the documents before the police could release them to the ACLU, claiming, incredibly, that they owned the police records regarding stingrays. The Marshalls service deputized a Sarasota detective and then claimed the documents were federal property. Then, a Marshall from it's Tampa office seized the records and moved them to an undisclosed location.

Lesson Learned:

Do you think the federal government would go to all this trouble to keep the knowledge of the use of stingrays from the public if the police and FBI weren't using them effectively every day all over the State of Florida? As the law currently stands, the police are not required to get search warrants for stingrays... and they want to keep it that way. By secretly tracking your cellphone, the police can secretly track and monitor you and all your movements (who goes anywhere today without their cellphone?)

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