TALLAHASSEE — The case against Tadrae McKenzie looked like an easy win for prosecutors. He and two buddies robbed a small-time marijuana dealer of $130 worth of pot using a BB gun. Under Florida law, that was robbery with a deadly weapon, with a sentence of at least four years in prison.
But before trial, his defense team found investigators had used a secret surveillance tool, one that raises significant privacy concerns. In an unprecedented move, a state judge ordered the police to show the device — a cell-tower simulator sometimes called a StingRay — to McKenzie’s attorneys.
Rather than show the equipment, the state offered the defendant a plea bargain.
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McKenzie, 20, is now serving six months’ probation after pleading guilty to a second-degree misdemeanor. He got, as one civil liberties advocate said, the deal of the century.
His case is emblematic of the growing, but hidden, use of a sophisticated surveillance technology borrowed from the national security world for use by local law enforcement. It shows how a gag order imposed by the FBI — on the grounds that discussing the device’s operation would compromise its effectiveness — has left judges, the public, and criminal defendants in the dark on how the tool works.
That secrecy in turn has hindered debate over whether the StingRay’s use respects Americans’ civil liberties.
The StingRay is a box about the size of a small suitcase — there’s also a hand-held version — that simulates a cellphone tower. It elicits signals from all mobile phones in its vicinity. That means it collects information about the communications of potentially hundreds of law-abiding citizens as well as of any suspected criminals.
The Tallahassee Police Department used the StingRay or a similar device in 250 investigations from mid-2007 through early last year, according to records provided to the American Civil Liberties Union.
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That’s 40 or so instances a year in a city of 290,000, a surprisingly high rate given that the StingRay’s manufacturer, Harris Corp., has told the Federal Communications Commission that the device is used only in emergencies. At least 48 state and local law enforcement agencies in 20 states and the District of Columbia have the devices, the ACLU says.
The secrecy surrounding the device’s use has begun to prompt a backlash in cities across the country, including Charlotte, N.C, and Baltimore.
In Tacoma, after a local newspaper investigation found judges in almost 200 cases had no idea they were issuing orders for the StingRay’s use, the court set new disclosure rules for law enforcement officials.