The public’s right to know vs. protecting law enforcement’s sources and methods

Attorney Jim Terrell cited a Federal Bureau Investigation communication to the San Bernardino County District Attorney’s Office objecting to the San Bernardino County Sheriff’s Department illegal use of StingRay Devices 303 times without a warrant and raising the question as to the San Bernardino County District Attorney’s Office’s lack of prosecution.

Gail Fry/Contributor 

   At a January 15, court hearing attended by The San Bernardino American News, San Bernardino Superior Court Judge Dwight Moore ruled in favor of keeping eight search warrants and their affidavits sealed indefinitely, warrants authorizing the use of StingRay Devices, a device that secretly allows law enforcement to intercept cell phone data.  

   The dispute over the public’s right to know where search warrants are open for public inspection and law enforcement’s rights to protect its sources and methods where search warrants can be sealed from the public indefinitely, began with a lawsuit filed on October 23, 2018, by the Electronic Frontier Foundation (EFF) against the County of San Bernardino and its Sheriff John McMahon.  

   EFF’s original lawsuit was dismissed after receiving some of the records sought, and the issue elevated when EFF filed a new complaint on October 8, 2019, adding the Superior Court for the State of California, County of San Bernardino as well as the San Bernardino County District Attorney’s Office and seeking to specifically unseal eight (8) search warrants related to searches conducting using StingRay Devices.  

   EFF, the leading nonprofit organization defending civil liberties in the digital world, championed the Electronic Communications Privacy Act, Penal Code Section 1546.1, signed by then California Governor Jerry Brown October 8, 2015, effective January 1, 2016, provided for a “uniform warrant rule for law enforcement access[ing]” electronic and digital information.  

   Prior to the passage of the Electronic Communications Privacy Act, law enforcement agencies were not legally required to obtain a search warrant in order to intercept cell phone data of unsuspecting cell phone users.  

   However, what most cell phone users don’t realize is that when a StingRay Device is used to target a suspect and gather cell phone data, the device acts as a cell tower and captures all cell phone data within a certain range of that device, thereby, gathering cell phone data of innocent cell phone users in the area and violating their privacy rights.  

   The California Constitution, Article 1, Section 1, gives each citizen an “inalienable right” to pursue and obtain “privacy.”

   Due to the indefinite sealing of these StingRay Warrants from the public, members of the public and/or civil rights advocates have no avenue available to the public to determine if in fact their privacy was violated by such a device. 

   San Bernardino County Superior Court Judge Judge Dwight Moore justified his decision to keep these eight search warrants sealed indefinitely explaining they are tied to a multi-defendant gang murder case and two other cases where even partial release of these search warrants could “unwind the identification of a confidential informant” and opining “some of the information should never get out” as it would reveal “intelligence sources and methods” and “create a danger to somebody.”

   “I am not at liberty to disclose what is in an affidavit, that should not be released now or ever, not for a very long time,” Judge Moore reasoned concluding that EFF had not shown the legal basis to support his petition “I am not finding laws or case laws that I can create a new precedent.” 

   Risher argued that while he appreciated the sensitivity of the matter, it was hard to believe that a general description of a person who swears to an affidavit’s attributes would be so sensitive it needed to be kept from the public; and based on the Fourth Amendment of the United States Constitution, California Penal Code Section 1534, and Rules of Court 2.551, there was no legal basis allowing the indefinite sealing of a search warrant.

   “A declaration to seal is typical in San Bernardino County, the largest county in the nation, with lots of agencies where the detectives use different search warrant formats,” Judge Moore acknowledged justifying the continued sealing of certain search warrants and their affidavits when those documents include information that, if made public, would be given to the defendant’s attorneys revealing “lots of stuff law enforcement uses” that  should be kept far from “members of the public and it should stay that way.”

   San Bernardino County District Attorney Mark Vos pushed further for a ruling from Judge Moore that would deny standing to EFF or members of the public the right to obtain access to search warrants that include the identity of a confidential informant.  

   Judge Moore responded that he was “not in a position to make a ruling along those lines” clarifying that his ruling would only apply as to this case.  

   In what he described as his last ruling as a superior court judge, Judge Dwight Moore explained that these specific warrants “complicate state interests, sources and methods, or danger posed to confidential informants, there is no other remedy but to keep these warrants sealed” reasoning “if information gets into the wrong hands” in criminal cases, “People die.”  

   Following the court’s ruling, EFF Attorney Michael Risher requested Judge Moore to make a record for a potential appeal including the stipulation and order to partially unseal search warrants as well as the eight search warrants and affidavits.

   In an interview with The San Bernardino American News, EFF Attorney Michael Risher explained no decision has yet been made whether EFF would appeal the judge’s decision.  

   As to the multi-defendant gang murder cases as a basis to keep the eight search warrants and affidavits sealed indefinitely, Risher explained the argument to keep the documents sealed lessens when a prosecution starts, and all the cases have been filed, one ended with a guilty verdict, another reached a guilty plea and one is awaiting trial. 

   Risher explained the usual process would be for the Court to “redact a few things; and submit an attachment that would remain sealed that contains all the sensitive information” and make the records, warrants, affidavits open to inspection.   

   “It violates the law,” Risher declared when describing the practice of San Bernardino County to request “indefinite sealing in almost every warrant that is submitted” as “too many sealing orders” more than in any other part of the state and “in my opinion, courts are granting too many of them” and “we don’t know how they are being used.”  

   “The First Amendment provides a qualified right of access to all sorts of court proceedings and court documents with limited exceptions,” he said, adding that the California Supreme Court has held that in general civil, and criminal proceedings and documents are open to the public, as well as California Rule of Court 2.551, and Penal Code Section 1534, explaining the First Amendment “protects not only the right to speak freely but also the ability to obtain the information you wish to speak about.”

   San Bernardino County Attorney Jim Terrell told The San Bernardino American News that law enforcement has “eviscerated the idea that a person’s home was their castle” explaining there are “so many exceptions, any officer can create an exigent circumstance for the judge.”

   The Fourth Amendment of the United States Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

   In a dissenting opinion in the United States Supreme Court decision in Kentucky v. King, issued May 16, 2011, Justice Ruth Bader Ginsberg opined, “The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.”

   Terrell shared in his career as a criminal attorney, he and other members of the defense bar he heard from declared they have never seen the use of a StingRay Device as the “original source” of the probable cause for the criminal charge leading him and other defense attorneys to suspect every day law enforcement in San Bernardino County are illegally using these devices to “spy illegally, illegally obtain the information and then give a redacted version of the information” as the probable cause for search and arrest warrants.

   Terrell explained that the San Bernardino County Sheriff’s Department’s contractual agreement with the manufacturer of the StingRay devices that it has a proprietary interest in the StingRay devices, therefore, law enforcement is legally obligated to not disclose its existence in law enforcement investigations and are trained to do so.    

   Terrell alluded to the existence of a Federal Bureau of Investigation communication exposing San Bernardino County Sheriff’s Department’s excessive abuse of the StingRay devices to obtain cell phone data on at least 303 occasions, known to the FBI, when no legal warrant existed. 

   “That suggests to me there were far more,” Terrell reasoned while questioning why these law enforcement officers weren’t held accountable for violating the law, “I don’t know of any citizen who could go out and commit 303 felonies and nothing happens.”  

   Terrell pointed to the oath of office that all government officials take where they raise their hand to support the constitution to say they will support the constitution yet none of our public officials have been “concerned there have been violations of the Fourth Amendment, no one is concerned about transparency, or the importance to trust in our law enforcement officers, to trust in the system, and trust that everything is being done correctly, fairly and constitutionally.”  

   Terrell shared that his experiences as a defense attorney in San Bernardino County have led him to question the truthfulness of law enforcement, and questioning the role of the Court in secreting the information from the public so the public will never know.  

   “We have a conspiracy, more than one person intending to violate the law,” Terrell alleged and when we try to find out the information, the judge says” we don’t want the public know like it would be the worst day in America if the public knew what really goes on.”     

  “What we really need to be spending our money on are the dash cams for the units and body cams for the officers and let’s get them in use,” Terrell testified, warning due to lack of transparency we are in “danger of losing our faith in our institutions” and opining many government officials have violated their oath to uphold the United States Constitution.

Leave a Reply

%d bloggers like this: