Crossing a state highway patrol officer who had seized my client’s tractor-trailer filled with narcotics at the suppression hearing, he testified to something different than he wrote in his report. The wheels turned as I carefully framed the question so he couldn’t weasel out of his hole, and closed the trap. He responded:
Well, I couldn’t put that in the report because the judge wouldn’t like it.
Nailed. I had him. Caught the cop dead in a lie, and it doesn’t get any better than that. It was one of those fist pump moments, and I imagined the judge ripping the prosecution a new one for outright lying to the court. So what happened.
Suppression denied. Not another word about it. Move along.
After the United States Marshals snatched the materials that, hours later, were to be disclosed to the ACLU in response to its FOIA request of the Sarasota Police Department on its use of Stringray for cell tower spoofing, Wired reported that the feds were in deeper than anyone was aware.
But the emails released Thursday show police in Florida are going even further to conceal their use of the equipment when they seek probable cause warrants to search facilities where a suspect is located, deceiving the courts about where they obtained the evidence to support their application for the search.
The concealment of the use of Stingray is one thing. The deceptive claim that Stingray is little more than a trap and trace device is another. But these emails go to a different place. It’s not just the government concealing their cool, secret devices from the public. Not even from criminal defense lawyers. They are lying to the courts about using them.
In the past, and at the request of the U.S. Marshalls [sic], the investigative means utilized to locate the suspect have not been revealed so that we may continue to utilize this technology without the knowledge of the criminal element. In reports or depositions we simply refer to the assistance as “received information from a confidential source regarding the location of the suspect.” To date this has not been challenged, since it is not an integral part of the actual crime that occurred.
They lied. They lie. The U.S. Marshals asked them to lie, and they lie. They use Stingray, but they put in their reports and probable cause applications they “received information from a confidential source,” and it is a bold-faced, total, complete, absolute lie.
outrage silence from the bench is deafening.
The rationalization for the concealment, the lie, is to keep knowledge of this tool from “the criminal element.” You know, criminal defense lawyers and such. After all, if the truth gets out that there are these devices called Stingray, and they are being used without a warrant because they’re just a new name for that old stand-by, the trap and trace device that courts let cops use without a warrant because reasons, then the criminals will circumvent this clearly critical tool to prevent criminals from raping your daughters.
And the judges nod their heads up and down, muttering “uh-huh, sure, we get it, Daughter rapers.”
Where is the outrage? Where are the judges throwing warrant applications back in the faces of cops and prosecutions, screaming about their integrity and due process and, well, lying to the court?
Sure, a judge here and there might take umbrage about being treated as so untrustworthy that he can’t be told the truth and expected to cooperate in law enforcement’s concealment from the criminal element, and maybe there will even be a judge somewhere who is offended enough to say “no.” But there will be no tidal wave of judges refusing to accept the old “confidential source” malarkey in lieu of actual information upon which warrants are issued.
Indeed, as the email says, “[t]o date this has not been challenged.” Since it’s a warrant application, and there is no defense lawyer in the room, the only person who could question it would be the judge. “To date this has not been challenged.” Cool story, judge.
And even though the emails explaining that this has all been a lie, at the request of the Marshals, have been made public, don’t expect judges to wake up and burn with anger at the idea that they have been lied to. Don’t expect judges to ponder whether this lie is but one of many, a series of deceptions perpetrated on the judiciary by scheming law enforcement and prosecutorial agencies bent on making sure that their secrets remain that way, even from the court.
One might think that judges would be concerned about being treated like untrustworthy fools by law enforcement. And no doubt they are, to some extent. But judges understand why law enforcement felt the need to do this. They understand that probable cause affidavits will eventually be disclosed to defense counsel, who will then share them with their clients, and information about the technological marvel that saves our daughters will spread among the criminal element like wildfire.
We can’t have that. Secrecy and technological marvels are critical to our safety. As much as judges may dislike being kept in the dark, they are attuned to the myriad secrets of law enforcement that allow them to sleep well at night. They can swallow their pride for the good of society, and what allows law enforcement to keep us safe is good.
And as the follow-up line to “no challenges” says, “it is not an integral part of the actual crime that occurred.” That a crime occurred is taken for granted. That the guy the cops arrested is the guy who committed the crime is taken for granted. That the police need to lie to the judge to protect society is taken for granted.
That judges can live with this is also taken for granted. And as the crickets demonstrate, the U.S. Marshals are correct on all counts.