Judge threatens contempt for declining to reveal cellphone tracking methods | Hacker News Reader

Judge threatens contempt for declining to reveal cellphone tracking methods

baltimoresun.com

296 pointsdriverdan74 comments

IANAL, but I don't see why the detective shouldn't be held in contempt anyways, along with the prosecutors. It's nothing short of a blatant attempt to deceive the court to present "evidence" in the first place when you're not prepared to observe the defendants' due process right to confront witnesses and have access to evidence. As soon as the so-called evidence was put before the court, the detective and prosecutors should have had but two options: provide all details to the defense or go to jail. It's highly preferable that a murderer go free than the government be allowed to claim private contracts with domestic spying providers, contracts to which the detective and prosecutors aren't even party, are "national security" issues. It's disgusting how the detective on the stand expected those magic words to waive the defendant's rights when told to the judge, if the article is to be believed.

IANAL either but I do have some experience with court proceedings. I'm surprised the defense didn't jump on this opportunity to file a motion to dismiss the case for lack of evidence (or maybe they did after the article was written). Given what little information about the case itself is presented in the article, it sounds like the cellphone evidence and anything gathered as a result of it, made up the bulk of the case against the kid.

The article did say the prosecution also claimed to have a confession from the defendant.

I thought that was the other juvenile defendant, the one not being tried as an adult; maybe I misread it.

Edit: I did misread it, sorry. It was Taylor who confessed. I wouldn't be surprised though, if the defense still uses the near-contempt and the overall lack of evidence to try to plead down or even still seek a dismissal.

If you give up a confession when confronted with inadmissible evidence that should not be brought before a court, should the confession count as admissible?

A public defender of my acquaintance has a client who's in prison for a murder he definitely did not commit, because the police showed him a bunch of entirely falsified evidence, snowed him into thinking he'd gone crazy and then forgotten afterwards, and took down his bewildered "I guess I did do it" as a confession.

FWIW, here in the UK we have an entertainer called Derren Brown. He specializes in psychological "magic". A while ago he did a show where he set up a punter to believe he had committed murder. The mark reacted exactly as your friend client. IIRC, he actually gave himself up to the police, really believing was guilty. IMO, very disturbing and going by the TV episode, even though Im sure it didnt show everything, too simple.

If any one is interested in tracking it down, Derren Brown - The Experiments. Episode The Guilt Trip.

http://en.wikipedia.org/wiki/List_of_works_by_Derren_Brown#D...

Added: Sorry, the point is that Im shocked that you are saying your police actually do this, in this way. When watching these shows its easy to assume that there is some extra trickery going on, so it cant happen to a real person in real life. Your case shows that it can.

I have long lost trust that anything Derren Brown does is legit. I was already suspicious it was bullshit and then he "predicted" the lottery numbers

I now have no reason to believe any of it is anything but actors and TV magic

Well, i found the explaination of him winning against a group of chess grandmasters by playing them against each other and only playing the weakest player quite convincing, and memorizing 10 moves as well as playing a good game of chess isn't really too far out there. The little bit of predictive magic with the number of pieces is almost certainly trickery though.

That's incredibly disturbing. I guess a lot of the criminal justice system has a bedrock, usually unstated, assumption that people know what they did and didn't do. That assumption is already questionable some of the time, but I suppose falls apart further when evidence can be fabricated to an extent that makes defendants doubt their sanity.

I wonder if this will occur more frequently in an era when people can start to create highly realistic video that appears to be of a particular person performing a particular act (so someone can show you full-blown "surveillance camera footage" of you doing something that you didn't do).

From the little I understand of psychology, essentially all you need to do is get the accused to doubt their memory, then push them over the edge. Consequently, I think that high quality CCTV wouldn't be necessary. A blurry hint would be enough to convince a softened defendant.

Under our current system... yes.

Cops can lie to you to extract a confession.

"Anything you say can and will be used against you a court of law..." means exactly that. Anything you say will be used against you, and will never be used to help you. Even if you talk and it would "help" your case, it will be thrown out as "hearsay".[1]

[1] "In Praise of the Fifth Amendment Right to Not Be a Witness Against Yourself": http://youtu.be/6wXkI4t7nuc

It's best to assume that cops will lie to you. I sat on a jury for a murder trial where the defendant confessed while high. His lawyer was totally incompetent as well, but the confession pretty much did him in.

The confession is admissible as evidence, it doesn't result in an automatic conviction.

Now that the defence knows about the stingray they will paint the rest of the case as fruit from the poison tree. They just need a reason to call the officer and ask about the stingray. The prosecutor can't withdraw the defences' questions.

The defence will merely reintroduce the evidence as evidence of police misconduct, this isn't going away anytime soon.

Shouldn't the confession be thrown out too? Fruit of the forbidden tree of cellphone data. The police are allowed to lie during interrogations, but they're not allowed to search/seize private property (without probable cause) to fuel their interrogations.

This guys lawyer should have left that court room, and went immediately to federal courthouse and filed a civil rights violation suit. the ACLU still should

But you have to be careful with this lest this incentivizes the creation of parallel-reconstruction-like fabrications of the source of evidence.

What? That's like saying that prosecuting perjury too harshly will incentivize better fabricated story coaching by lawyers. Or, in general, prosecuting crimes incentivizes more perfect crimes.

For those unfamiliar with parallel construction (like I was) an intro:

Using thermal imaging to scan neighborhoods for the lights used to grow marijuana is considered a "search" by the courts and police have a warrant to do this. Let's say the police ignore this and go around secretly scanning cities without a warrant. They find out that John is growing weed in his basement, but they can't arrest him because this evidence is inadmissible. They follow John for a while and see that he interacts with Pete. Pete has a warrant out on him based on some unpaid parking tickets. So the cops arrest Pete, find weed, and get him to finger John as the source. Now the cops can get a warrant, search John's house, and "oh hey look there's all this marijuana growing here!"

This evidence is normally inadmissible as it was derived from an illegal search. It's very difficult to catch unless the police stupidly submit it to the court (as in the OP). Not using this tactic requires a high-degree of morality and/or oversight of police officers.

http://en.wikipedia.org/wiki/Parallel_construction

Even if the only result is tossing the evidence that will still incentive Parallel Construction, which has been going on for a long long time.

The legal System is setup to encourage this. The only way to prevent that would be independent audits of all investigations which would be both expensive, time prohibitive, and over time the "independent" auditors would be corrupted leading to the need for auditors of the auditors, etc etc etc

it is the "who watches and watchers" problem, you find a solution to this you let me know because you will be a very rich person.

"If we punish crime, criminals will get smarter!"

Touche. Didn't think that my argument would sound like that, but it does.

It's significant that, rather than disclose their cell tracking methods, the police and prosecutors prefer to discard the evidence. This suggests that obtaining evidence is not the primary purpose of the tracking technology.

Or maybe it suggests that the technology is only useful if it can be used for the illegal gathering of evidence.

Deleted comment

And maybe that's just fud to cow the citizenry.

The federal government doesn't want its sources and methods exposed. They have allowed moles supplying info to the Soviets to go unprosecuted because nabbing them would have tipped off the Russians that their communication channels weren't secure.

And that's probably fine, because national security is more important than a singular crime.

If the federal government doesn't want certain sources and methods exposed in criminal court cases against non-spy citizens, then the federal government mustn't allow the use of those sources and methods against non-spy citizens in criminal court cases.

Can you explain how it suggests that?

The most plausible explanation here seems to be the simplest: If the methods were exposed, the prosecutors it would have probably been ruled a warrantless search.

Why do they even have the Stingray equipment from the FBI, if they can't use its output in court?

In this case is obvious that Stingray was used, but in other cases (Plenty of examples in the discussion) it might not be easy to probe that the police obtained the info that lead to the investigation illegally.

They've had it since 2009 and this apparently is the first time they've been called out on how they actually got the evidence. Pretty good ROI, illegal or not.

It seems another conclusion is that they hope to somehow continue using these methods to gather more evidence in the future. By sacrificing this bit of evidence they may think they are saving untold oodles of future evidence. The argument maybe a little thin, seems like the judge maybe setting some sort of precedent here which would require them to always reveal their gather methods if they want to enter the evidence.

Great quip in the linked article by a lawyer with the ACLU about nondisclosure agreements:

   "You can't contract out of
   constitutional disclosure obligations"

I think that about sums up the "people's" side of the war.

Even better, these two quotes from the judge:

"You don't have a nondisclosure agreement with the court"

and

"I mean, this is simple. You can't just stop someone and not give me a reason."

Getting off the hook by simply discarding the evidence is quite questionable.

For all we know, they had tortured someone to get to that evidence and the torture method was the subject of that 'non-disclosure' arrangement.

(I believe high-ranking American Psychological Association members had such non-disclosure agreements with the federal government for their employment and 'consultancy' in Guantanamo torture sessions.)

How illegal it must be if prosecutors are willing to do so much to keep it secret.

If they really did sign NDAs, their hands are probably tied.

It's likely that civil enforcement of an NDA to recover damages for answering a judge's question in a judicial proceeding would be barred by a court as against public policy, even if the NDA didn't contain an explicit provision allowing disclosure in a judicial proceeding. The theory would be that public policy prevents enforceability of contractual terms that require someone obstruct justice or to disobey court orders.

It's not the most perfect example, but

"In McKenzie v. Lynch, 133 N.W. 490 (Mich. 1911), a husband settled a civil claim with a man who had engaged in "criminal conversation" with his wife. As part of the settlement, the husband promised not to "do anything whereby this matter will acquire any publicity whatever." Id. The court found this provision unenforceable because it could prevent the husband from "becom[ing] a complaining witness, in a criminal proceeding" against the other party to the contract. Id. at 491."

(Alan E. Garfield, "Promises of Silence: Contract Law and Freedom of Speech," Cornell L. Rev. 83, 261.)

That is to say that under these circumstances, one party could not sue the other for breaching a non-disclosure agreement by testifying as a witness in a criminal trial. I'm sure there's more recent and more relevant legal authority out there somewhere.

I agree with the decision. I'm kind of confused about the amount of resources going into this robbery--not to mention the level of defense the defendant is getting. I've heard of murder suspects getting less defense! Couldn't the phone record of the cell used to make the initial call provide enough information for the warrant? IANAL but it seems like the prosecution doesn't even need to introduce this evidence... plus doesn't the article say Taylor has already confessed? Why is this even on trial?

Just because a suspect confesses doesn't mean they skip the trial process. The normal procedure at that point is to plead guilty and head into sentencing. The police can have the defendant clearly on video describing the crime in exact detail but if he pleads not guilty you get a trial.

Which, even though it might seem odd at first, this is a good thing because how many people in the past were coerced to provide a confession to a crime they did not commit?

Yeah I agree. I guess that's what confused me is that maybe he recanted his confession or they weren't willing to bargain his sentence down to something he was willing to accept.

Maybe the confession does not support the specific charges they wanted to bring. And now the lack of the phone evidence might let the defendant off the hook for some of the charges.

My theory is that FBI is providing cities with some of these technologies as a sort of dog fooding. To iron out the kinks in their tracking technology. It does seem over kill to use something like that for a robbery, in a city like Baltimore.

I know your post was more about the defence and the trial.

How does this not throw the case into "fruit of the poisoned tree" territory? If they used illegal tracking to further gather evidence, shouldn't all of that evidence be thrown away?

Yes and no. There are a number of ways in which illegally obtained evidence, or FOTPT evidence can still be admitted. These are: attenuation, independent source, inevitable discovery, and good faith. Roughly stated, attenuation is when something is too far down the line of causation, time, or there is a voluntary act of free will by the defendant to separate the illegality from the evidence, and the balance rests in favor of admission. Independent source is kind of like parallel construction: if the investigator also discovered the evidence in a legal way completely independent of the illegal search, the evidence will be admitted. Inevitable discovery extends this to evidence which, despite not being discovered legally, would have discovered the evidence regardless of the illegal search. Finally, the good faith exception will allow in evidence where law enforcement is relying in good faith on a warrant which is defective, or that they are proceeding legally pursuant to common law or statute. I've mostly summarized here the sides of the coin that will admit evidence poisoned by an unlawful search, but there are other doctrines that will tip it into the excluded category.

Has the cellphone collection they used been ruled illegal? I just thought they withdrew because they didn't want to share the tech they are using to collect the evidence.

AKAIK no, that does seem to be their tactic. I just wanted to give an overview of the law surrounding the exclusionary rule, especially since many here think parallel construction and similar tactics equal automatic and sure exclusion.

In the article it says the prosecutors dropped the evidence found from the resulting home search.

"Finally, Seidel said prosecutors would drop all evidence found during the search of the home — including, authorities have said, a .45-caliber handgun and the cellphone."

That could be why they backed off, withdrawing that evidence rather than reveal their tracking methods.

It did. They dropped all evidence found during the search of the home, including the phone itself and a handgun found inside.

It's obvious that departments have these devices, and everyone assumes they know how they work and what they do.

So then why the secrecy? If we know what they do and how they work and that law enforcement has them what are they hiding?

I propose all this secrecy is to hide the fact that they can either update the baseband firmware OTA or exploit it OTA and basically root the phone. As an extra incentive to shut up if they disclose any info in court they stop getting new exploit updates and/or baseband updates.

I don't understand why the Federal government is muzzling the police about this. The use of Stingray is not exactly a secret.

I believe that if they admit to using a Stingray, then the Stingray's legality can be challenged. At this point, nobody actually knows that a Stingray was used, so I don't think anybody can bring a case like that. They are trying to avoid giving anyone standing for a case that they might lose.

Thanks, that sounds plausible.

Honestly I think it still is to the majority of the public. Sure another engineer who is at all concerned with privacy knows about these devices, but I doubt a kid who is robbing a pap john's driver at gunpoint is aware.

If you bothered to RTFA, it's not stingray.

"Defense attorney Joshua Insley still believes that police used a stingray to find Taylor. He cited a letter in which prosecutors said they were prohibited by the Department of Justice from disclosing information about methods used in their investigation.

The portable device was developed for the military to help zero in on cellphones. It mimics a cellphone tower to force nearby phones to connect to it.

Records shows that the Baltimore Police Department purchased a stingray for $133,000 in 2009."

It is quite likely that there are passive devices that monitor cell phone channels without tricking them into connecting to a phony base station. These technically wouldn't be "stingrays". That is basically what the SIGINT satellites do. It could certainly be miniaturized for local area monitoring. In any case, the cell providers have basic details of what phones communicate with their towers. It doesn't seem like that avenue wasn't used in this case though.

I think it's more probable that they're covering their corporate friends, who have agreed to supply consumer data illegally. Were they using a stingray, they probably would have said as much.

Sure, if you take the word of the detective possibly covering up illegal actions.

What I really do not understand is why the secrecy over methods at all. A cellphone is giving out an identifiable radio signal. Any half decent electronic engineering degree student should be able to cook up something that could track cellphones.

Maybe in the '90s. Today's students are busy cooking up ways to use ambient radio signals ("illuminators of opportunity") as passive radar to see into houses.

I'm not an expert an the matter, but surely something like that could be challenged under privacy laws or even unlawful search and seizure.

The legality of stingrays hasn't been brought before a court yet as far as I'm aware, and it sounds like law enforcement and prosecutors are in no hurry to allow it to be.

Passive radio location and broadcast stream decoding of the gsm announcements made by the phone, should be feasable, i dont see why the phone has to be tricked into a conversation with a fake cell tower to locate it. Under those circumstances would it still be a search, is it not the same as the owner of the phone wearing an audio system that broadcast loudly thier name.

See:http://www.rtl-sdr.com/receiving-decoding-decrypting-gsm-sig...

Anyone want to speculate on what the secret is? Is it the fake cell tower vehicles?

I'd wager they can pick up the cell phone pings to the tower. I don't know if these messages are encrypted; if they are, perhaps they also hold the keys, and that is the real secret.

What happens if the prosecution breaks the law. Can the judge toss the case?

Judge threatens contempt for not providing sources with drivers.

McNulty.

You don't know Lester Freamon.

Kinda reminds me of this: http://www.penny-arcade.com/comic/2006/01/20

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