
Judge threatens contempt for declining to reveal cellphone tracking methods - driverdan
http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-stingray-officer-contempt-20141117-story.html
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belovedeagle
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.

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

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

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

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elwin
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.

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

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PhantomGremlin
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.

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jholman
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."

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pXMzR2A
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.)

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charonn0
How illegal it must be if prosecutors are willing to do so much to keep it
secret.

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

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schoen
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.

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schoen
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.

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Shinkei
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?

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talmand
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?

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Shinkei
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.

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acveilleux
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.

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aqme28
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?

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mikecb
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.

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res0nat0r
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.

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mikecb
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.

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rblatz
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.

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

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

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noedig
"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."

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kevin_thibedeau
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.

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lotsofmangos
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.

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gph
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.

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thawkins
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...](http://www.rtl-sdr.com/receiving-decoding-decrypting-gsm-signals-rtl-
sdr/)

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

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fabulist
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.

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

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fithisux
Judge threatens contempt for not providing sources with drivers.

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sgnelson
McNulty.

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tadfisher
You don't know Lester Freamon.

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msandford
Kinda reminds me of this: [http://www.penny-
arcade.com/comic/2006/01/20](http://www.penny-arcade.com/comic/2006/01/20)

