Court Documents Show FBI Had To Bail Out Oakland Police With Its Bigger, Better Stingray

from the stand-back-and-let-the-pros-handle-this,-son dept

Cyrus Farivar of Ars Technica has obtained court documents showing the Oakland Police Department had to call in the feds -- and their IMSI catcher -- to track down a suspect wanted in connection with a shooting of an off-duty police officer.

According to new government affidavits filed earlier this week, the Oakland Police Department (OPD) used its stingray without a warrant in 2013 for several hours overnight as a way to locate a man accused of being involved in shooting a local police officer. The OPD called in the FBI when that effort was unsuccessful. The FBI was somehow able to locate the suspect in under an hour, and he surrendered to OPD officers.

The only reason these affidavits even exist is because the judge presiding over the prosecution of Purvis Ellis ordered the government to submit declarations detailing how the devices were used to locate him. Two declarations -- one from the FBI [PDF] and one from the Oakland PD [PDF] -- shed some additional light on the now-ubiquitous cell phone-tracking technology.

Neither law enforcement agency sought a warrant for their Stingray deployments. Both declarations claim none was needed because of "exigent circumstances." Given that this occurred before the DOJ instituted a warrant requirement for the FBI's Stingray use, it's unlikely any evidence is in danger of being tossed.

The Oakland PD's declaration states the same thing: no warrant was sought because of "exigent circumstances." Similarly, there appears to have been no warrant requirement in place for the Oakland Police Department at that time. That doesn't mean the court won't find that the use of a Stingray device (or, in this case, two of them) requires the use of a warrant, but even if it does, the good faith exception is likely to apply -- especially in the FBI's case, as its warrant requirement was still thee years away. In both deployments, pen register orders were used to obtain subscriber info. Because exigent circumstances dictated the requests, no judicial approval of the orders was needed.

Ellis' lawyers are hoping the judge will find the circumstances surrounding the Stingray deployments to be not nearly as "exigent" as the government claims.

Prosecutors argued that because the three men involved in the altercation were at large, there was a clear exigency. Ellis’ defense, meanwhile, has countered that because the OPD had declared the scene “secure” 14 minutes after Karsseboom was shot, there was no exigency. This issue remains unresolved.

On one hand, securing a crime scene doesn't immediately dispel perceived exigency. As the government points out, the shooting suspects were still free and roaming Oakland. On the other hand, the amount of time that elapsed between the Oakland PD's response to the reported shooting and the eventual location of Ellis by the FBI -- 15 hours -- suggests some of the exigency may have dissipated by the time the FBI fired up its tracking device.

Whatever the case is, the Oakland PD's call for assistance suggests its equipment was already outdated.

“It's unclear from the Oakland declaration how continuous the operation of their equipment was,” Brian Hofer, chair of the City of Oakland Privacy Advisory Commission, told Ars. His newly created commission has been scrutinizing the city’s procurement process for surveillance and has pushed for new policies overseeing its use. “We believe that Oakland only had an older 2G/3G Stingray, based on public records in our possession,” he continued. “It is possible that the FBI already possessed a Hailstorm or similar 4G capable device at this time, or an older 2G/3G system but with enhanced amplification, or maybe Oakland's equipment was simply malfunctioning."

The shooting occurred roughly two years before the PD attempted to secure a Homeland Security grant to pay for the Hailstorm upgrade, which would have allowed it to track the suspect. The FBI's newer version had no such problems. The Oakland PD spent ten futile hours searching for Ellis. The FBI located him roughly an hour after deploying its Stingray. It also deployed something else along with it. From the FBI's declaration:

At one point, in an effort to reduce the error radius and increase the accuracy of the location of the cellular telephone, a cell site simulator augmentation device was deployed into the interior of the apartment building. This device is used in conjunction with the cell site simulator and has no data storage capability whatsoever.

Farivar spoke to Daniel Rigmaiden -- the person who first uncovered government use of Stingray devices in criminal investigations (prior to that, it had only been deployed in war zones by the military) while serving time for tax fraud -- who suggested the "augmentation device" might be something made by KeyW or one of its competitors. These devices passively collect connection info and are small enough to be carried in an agent's hand.

Rigmaiden also points out something else this incident shows, however inadvertently. All the money being spent by local law enforcement agencies might be better off spent on other things. Not having a Stingray device isn't the end of the world -- especially when the FBI is willing to put its devices and technical expertise to use at a moment's notice.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fbi, oakland, oakland police department, privacy, purvis ellis, stingray