A Tacoma man was prepared to mount what is thought to be the first legal challenge against Pierce County law enforcement’s use of a controversial secret surveillance tool, but his effort was rendered moot last week when he reached a tentative plea bargain agreement with prosecutors.
In what might take some by surprise, the Pierce County Prosecuting Attorney’s Office did not intend to oppose Eddie Smith’s contention that police use of a cell-site simulator in his case was improper.
In court pleadings filed before the plea agreement was reached, Smith’s attorney, Kent Underwood, contends law enforcement’s use of a so-called Stingray — a brand of cell-site simulator — to track down and arrest Smith last spring violated his constitutional right to be free from unreasonable searches and seizures.
Underwood had asked Superior Court Judge John Hickman to dismiss the charges against Smith or, at the least, throw out any evidence detectives gathered after deploying the device.
Because police never told a judge they intended to use the Stingray, its deployment constituted a warrantless search, the attorney wrote in pleadings.
“There was no warrant,” Underwood wrote. “It is imperative that this court not condone the active manipulation of state and federal law so as to make evidence admissible that would be otherwise inadmissible or not obtained.
“This court should not condone the secret use of the Stingray.”
Prosecutor Mark Lindquist said last week he agrees with Underwood that the use of the Stingray in Smith’s case did not meet constitutional muster because police did not alert a judge that they intended to employ the device.
Lindquist said his office wouldn’t fight Underwood’s efforts to have evidence gained by use of the Stingray thrown out.
“The warrant is deficient,” Lindquist said.
The decision to concede the deficiency of the warrant likely would have meant local law enforcement officers wouldn’t have been forced to testify about the Stingray and how it works.
They have refused to discuss publicly details of the Stingray, citing a nondisclosure agreement with the federal authorities who provided them with the tool.
Prosecutors in other jurisdictions have been willing to dismiss cases outright rather than subject law enforcement officers to testifying under oath about their use of it.
A St. Louis prosecutor was suspected of doing so earlier this month in the case of three suspected robbers caught with the help of a Stingray-type device, The Post-Dispatch newspaper reported.
Lindquist and his chief criminal deputy, Stephen Penner, said they would continue to prosecute Smith, even without the Stingray evidence, and Underwood told The News Tribune on Saturday that his client would enter into a plea agreement either Monday or Tuesday.
Smith, 50, is charged with possessing an explosive device, second-degree assault, unlawful manufacture of explosives, intimidation with an explosive and threat to bomb or injure property.
“We have plenty of evidence to prosecute,” Penner said. “We’ve got a witness who saw him throw an explosive device.”
Prosecutors allege Smith threw a homemade bomb at his ex-girlfriend’s subsequent beau in 2014. The bomb did not go off, and no one was hurt.
Smith, who has pleaded not guilty, contended he was just trying to scare the man, whom he suspected of abusing the ex-girlfriend, court records show.
Stingrays and other cell-site simulators are electronic devices capable of tracking a person’s cellphone. Some models can intercept phone calls and texts. Some can even be used to make another person’s cellphone ring.
The devices act as mobile cellphone towers, tricking phones in the area into connecting to it.
Tacoma police have had access to one since at least 2007, according to public records analyzed by The News Tribune, but kept the device secret until the newspaper learned of the device’s existence and published a series of articles on it last year.
Police have deployed it more than 150 times to try to track down missing people or find others suspected of crimes.
Use of the devices can be controversial. Some civil libertarians contend they unreasonably and unlawfully invade people’s privacy and that police often use them without getting a warrant.
Tacoma police told The News Tribune last year they always got a warrant before deploying their Stingray.
However, the newspaper learned the warrants police obtained were standard “trap-and-trace” warrants that made no mention that investigators had a cell-site simulator or intended to deploy it.
That finding alarmed Superior Court judges, who didn’t know police had a Stingray. In October, they insisted that police begin telling them in search-warrant applications when they intended to use the device.
Police agreed to abide by the demand.
Lindquist, who also learned of the Stingray’s existence last year, said last week his office took part in those discussions and that he supported adding Stingray language to search-warrant applications.
In addition, the state House and Senate have approved a bill that would require law enforcement agencies to get a warrant specifically for cell-site simulators before they deploy one.
NO MENTION OF STINGRAY
Smith’s case predated the new arrangement.
On April 23, 2014, a man called 911 to report Smith had tried to blow him up with a homemade bomb, court records show. The man still had the bomb, which failed to detonate.
Law enforcement officers, including Pierce County sheriff’s deputies and a special agent of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, were sent to investigate.
They learned Smith was the suspect and where he might have gone, the records show.
Law enforcement officials sought judges’ permission to search several addresses, Smith’s cellphone and his truck, the records show. None of the warrant applications mentioned the Stingray.
Authorities eventually tracked Smith to the house of a friend and arrested him there. He then gave statements that led to further evidence against him, records show.
Underwood later discovered authorities had used the Stingray during the search for his client.
“After the defense conducted several interviews, it was learned that Tacoma Police Department officer Terry Krause employed the use of a cell-site simulator (brand name, Stingray) to locate Smith,” Underwood wrote in pleadings. “It is not known exactly how Krause became involved in the investigation.
“Nevertheless, in the defense interview, Krause acknowledged that he had employed the use of the Stingray.”
Law enforcement officers knew Smith’s cellphone number at the time, Underwood said.
“The Stingray determined Mr. Smith’s cellphone was in (his friend’s) residence,” the attorney wrote. “Law enforcement contacted Mr. Smith and ordered him to come out.
“There was no warrant for Mr. Smith’s arrest. There was no search warrant for (his friend’s) residence. There was no warrant for the use of the Stingray.”
As such, Smith’s arrest was unlawful and any evidence obtained from him thereafter is inadmissible, Underwood said.
Lindquist concurred with Underwood’s contention that the evidence was inadmissible in court.
“We agree Stingray language should have been included in the warrants,” he said.
Underwood went on to say police committed “outrageous governmental conduct” when they did not disclose to the court that they had a Stingray and intended to use it.
“The governmental action in this case is egregious and violates the core values of our Constitution and legal system,” Underwood wrote. “Law enforcement scoffs at the court and the rule of law.”
Lindquist said his office expects more such defense challenges and would review carefully any case in which the Stingray was used before October 2014, when local judges began demanding to know if and when the device was to be deployed.
“We’d want to look at each warrant on a case-by-case basis,” he said.
Warrants that did not contain Stingray language would undergo heightened scrutiny, Lindquist said.