On January 11, 2023, the California Supreme Court declined to hear the Electronic Frontier Foundation’s Petition for review on the issue of whether San Bernardino County could indefinitely seal search warrants, when a confidential informant was at its source.
In a legal dispute between the Electronic Frontier Foundation and the San Bernardino Superior Court, the San Bernardino County Sheriff’s Department and District Attorney’s Office that went to the California Supreme Court, the County alleged it had to secure the safety of confidential informants, now The San Bernardino American News has discovered an unsealed search warrant that reveals the identity of a confidential informant and a victim of domestic violence.
The San Bernardino County District Attorney (SBCDA) released the unsealed search warrant, one of nine search warrants released, to the Electronic Frontier Foundation (EFF) during their legal dispute, EFF gave a copy of the search warrant to The San Bernardino American News.
When they were arguing in front of the 4th District Court of Appeal (Appellate Court), the San Bernardino Superior Court (SBSC) through attorneys for the San Bernardino County Sheriff’s Department (SBCSD) and District Attorney (The County), the County defended its position that the search warrants needed to be sealed indefinitely to protect any confidential informants and official information.
Official information is described as information, that was not open, or officially disclosed to the public, obtained in confidence by a public employee while doing their duty as a public employee.
EFF wanted to obtain copies of search warrants where law enforcement used a cell-site simulator, known as a “Stingray” device, which acts like a cell tower, re-routing the Wifi for people’s cell phones to its cell tower, where it can then capture data from cell phones of criminal targets, and all cell phones in range. Additional information can be found at: https://www.eff.org/document/cell-site-simulators
SBCSD got EFF’s attention by having the most search warrant applications seeking electronic records per resident in the state, and that the San Bernardino Superior Court was granting SBCSD’s requests to indefinitely seal those search warrants from public view.
EFF argued that the public should have a right to see these search warrants, that the county can redact sensitive information, allowing the public some oversight over what EFF views as highly invasive surveillance tools used by law enforcement that gain electronic data from both the criminal and innocent people.
The public has the right to know how law enforcement is using these devices and whether their cell phone data had been captured in a surveillance, and what happened to their data. EFF explained these search warrants raise privacy concerns.
During the lawsuit, the County released nine search warrants to EFF, all authorizing the use of Stingrays, while withholding 80 out of 120 pages of search warrant material leaving those 80 pages sealed.
One of those search warrants released by the county was never sealed. A review of the search warrant by The San Bernardino American News found SBSC Judge Gregory Tavill denied sheriff deputy Rudy Delgado’s request for sealing because it appears he failed to check the boxes “official information” and/or “informant protection” the grounds required for sealing.
The San Bernardino American News noticed under SEALING ORDER/SERVICE OF WARRANT the words “Add addition information to HOBBS the PROBABLE CAUSE” were written on page 7 of the search warrant.
Hobbs is a 1994 California Supreme Court decision in a case where a defendant sought the identity of a confidential informant to challenge a search warrant. The Yuba County Superior Court denied the defendant’s motion, and it was appealed.
The Appellate Court upheld the defendant’s due process rights to access information needed to challenge a search warrant’s validity. The California Supreme Court overruled the Appellate Court’s decision finding Yuba County Superior Court’s examination and basis of the warrant sufficient.
The San Bernardino American News is releasing the unsealed search warrant and all the cell phone number in the warrants that were released to inform the public and ask whether the targets of the surveillance were ever notified as legally required.
The cell phone numbers were: (760) 541-6617, (909) 534-1881, (909) 499-7934, (909) 645-4771, (909) 709-9719, (909) 787-9285, (626) 755-8234, (909) 486-1227, (657) 227-6016, (701) 260-9947
The SBCSD asks the court for a 90-day delay in notifying the targets claiming otherwise it would endanger an individual; cause the target to flee prosecution, allow the target to destroy evidence, or intimidate potential witnesses, or jeopardize an investigation or delay trial or result in an adverse result.
Notification of the criminal target is required at the execution of a warrant, unless ordered by the court.
In the unsealed search warrant, the criminal, Ameno Bun, was accused of stabbing his girlfriend in the back numerous times, and had a felony warrant.
The unsealed search warrant although redacted, did not have any redactions on page 6 of 9, where there were at least five words that reveal the name of the victim and reveal the confidential informant.
To protect the confidential informant, and his girlfriend’s identity, The San Bernardino American News is redacting fifteen words, otherwise, we are releasing this search warrant to the public.
Click below to see search warrant.
EFF Attorney Mackey told The San Bernardino American News that the court could make the search warrant available to the public by redacting the informant and victim’s names, while the public could learn about law enforcement’s investigation from the unredacted pages of the search warrant material.
“We believe the warrant you identified is an example of how that is possible,” Mackey reasoned, explaining, “I agree it raises questions about why the majority of the affidavits had to be sealed in full when this affidavit was fully public.”
The Appeals Court found the San Bernardino Superior Court had a valid basis for their indefinite sealing of these search warrants, Mackey voiced.
In an interview with The San Bernardino American News, SBCSD PIO Public Affairs Division Mara Rodriguez explained, “Sheriff Dicus/the Sheriff’s Department has commented on this matter multiple times in the past and has no additional comment at this time.”
Rodriguez continued, “I can share with you that our policy information on Cell-Site Simulators is available on our public website.” Link to website: https://atlasofsurveillance.org/a/aos2603-san-bernardino-county-sheriff-s-department-cell-site-simulator
“Also, the warrants which were withheld in this case were ordered sealed and related to an active case,” Rodriguez reasoned, countering, “The Sheriff’s Department provided EEF an example of an unsealed warrant, which authorized the use of the cell cite simulator.”
San Bernardino County District Attorney’s Office public affairs officer Jacqueline Rodriguez explained, “In regards to the warrant in question SW18 0850, our Office did not object to the release of the search warrant, as there was never a sealing order for the warrant or it’s material from the Court.”
EFF’s complaint against San Bernardino County, its sheriff, and its district attorney sought public access to search warrants involving the use of the Stingray started on October 23, 2018. EFF obtained a few of the warrants, dismissed the lawsuit, and filed a new lawsuit on October 8, 2019, against the SBSC, the County of San Bernardino, and its district attorney.
SBSC Judge Dwight Moore ruled against EFF’s petition, on January 15, 2021, reasoning these particular warrants involve a multi-defendant gang murder case and two others, making these warrants public would impede state interests, sources and methods, and endanger confidential informants.
EFF appealed to the 4th District Court of Appeal in March of 2021. EFF explained “When courts authorize law enforcement’s use of surveillance technologies to sweep up innocent people’s private data, the public’s rights of access to judicial records is critical.”
Attorney Aaron Mackey shares the importance for the public to view search warrants that involve the use of Stingray devices.
The County claimed the search warrants and affidavits, characterize them as so-called “Hobbs affidavits,” which contain confidential informants and official information, therefore, should remain sealed indefinitely.
Attorney Aaron Mackey described the county’s arguments for the warrants to remain sealed.
After hearing from the parties, the Appellate Court ruled in favor of The County determining the public, while having a right to court documents, does not have that right when a search warrant affidavit includes a confidential informant, then the affidavit can be sealed.
The court determined a “line-by-line redaction” of the affidavits is “not practicable.” The Court reasoned that the injury to the criminal investigatory process, overrides the rights of the public to access search warrants and affidavits, or their ability to have better public oversight of law enforcement.
Following the Appellate Court opinion in support of the San Bernardino Superior Court, EFF submitted a Petition for Review to the California Supreme Court seeking clarity on conflicting Appellate Court opinions and/or to de-publish the Appellate Court’s decision.
EFF believed the lower court’s decision conflicted with the public’s basic rights of access to warrants, affidavits, and returns under Penal Code Section 1534(a), California Rules of Court 2.550-2.551 covering the sealing of records, the common law, and the California Constitution, which call for siding on transparency.
On January 11, 2023, the California Supreme Court declined EFF’s Petition.
When the California Supreme Court rejected EFF’s petition, EFF attorney Aaron Macky worried, “[I]t it will make it harder for the public to understand when and how law enforcement uses invasive surveillance technology.” (source: eff.org).
“This ends our case and lets the appellate court’s decision stand, so unfortunately, there is no next step, as the case is over,” Mackey confirmed.