Last summer, as the American Civil Liberties Union was standing side-by-side with Missouri Republicans supporting the passage of a constitutional amendment that sought to protect “electronic communication and data” from unreasonable search and seizure, the St. Louis Metropolitan Police Department was sitting on a secret.
In cooperation with the FBI, the St. Louis police had been using a cellphone tracking device known generically by the brand name of one such device: StingRay. The high-tech gadgets allow police to mimic a cell tower. They screen and track nearby digital data, determining the specific location in a building, for instance, of the cell phone they are tracking.
Last month, as first reported by the Post-Dispatch’s Robert Patrick, prosecutors dropped more than a dozen charges against three defendants in a case where the technology was employed. Defense attorneys believe the charges were dropped because police don’t want to reveal details about their new high-tech toy.
But in Missouri, there may be a bigger problem. It has to do with that constitutional amendment that the strange bedfellows of the ACLU and Missouri Republicans were promoting.
A plain reading of the language of Amendment 9, passed by 75 percent of the voters who turned out on Aug. 5, suggests that it is now unconstitutional in Missouri to use a StingRay device — at least without a warrant that offers significantly more detail about the data being sought.
Tony Rothert, legal director of the ACLU of Missouri, says that as long as police keep up their veil of secrecy surrounding use of the StingRay, they might be jeopardizing criminal cases, like those recently dismissed when public defenders sought information about the technology used to track their clients.
“We weren’t aware the city of St. Louis was using StingRays at the time (we supported Amendment 9),” Rothert said. “But that is precisely the sort of technology we had in mind. StingRays seem to be collecting exactly the sort of information Amendment 9 describes.”
Here’s the wording of the amendment now enshrined in the Missouri Constitution:
“That the people shall be secure in their persons, papers, homes (and), effects, and electronic communications and data, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, or access electronic data or communication, shall issue without describing the place to be searched, or the person or thing to be seized, or the data or communication to be accessed, as nearly as may be; nor without probable cause, supported by written oath or affirmation.”
This editorial page opposed Amendment 9 on the grounds that it was mostly unnecessary, especially given that the U.S. Supreme Court already had enumerated Fourth Amendment protections for electronic records like email and texts. The court said warrants were required, just like for mail or other personal records.
But the previously secret use of high-tech equipment by the St. Louis police department might prove that voters were right in adding the extra layer of state constitutional protection.
Any attempt to use the StingRay without obtaining a warrant that describes the “place to be searched” and the “data or communication to be accessed” would seem to run afoul of the new wording in Missouri’s Constitution. But Mr. Patrick reported that in a deposition taken May 19, public defender Natasha Alladina sought such information from police detective Aaron Harwood. Mr. Harwood cited the city’s nondisclosure agreement with the FBI and refused to offer details.
Many Americans are rightly concerned about massive National Security Agency data mining at the federal level, where ordinary citizens can be swept up in broad searches for potential terrorists. Secret snooping is just as bad when local police are using it against citizens without some sort of reasonable level of judicial oversight. With Amendment 9 on the books, such tactics may result in criminal cases being dropped now that defense attorneys in St. Louis know to look for and challenge information related to StingRay use.
The solution to this dilemma is a fairly simple one, already modeled for Missouri lawmakers by legislatures in Washington, Utah and Virginia.
As those states did last year by overwhelming margins, the Missouri Legislature should define in statute the specific requirements of what police must seek and disclose when using such high-tech tools to track criminals. Part of the problem with StingRays is that they also collect data from people who might have nothing to do with the crime being investigated. Lawmakers need to give the St. Louis police, and any other departments contemplating the use of StingRays, guidance to both protect citizens from government overreach, and prosecutors from having to toss cases for failure to disclose reasonable information sought by defendants.
In the meantime, the St. Louis police department has a problem. If it won’t voluntarily seek warrants with detailed information, and it refuses to disclose investigatory techniques to defense attorneys, then a whole lot of criminals are going to be set free. That cool new technology is worthless if it can’t be used within the confines of constitutional protections that protect American citizens from improper search and seizure without probable cause.
If the police department is unwilling to operate with transparency, then Police Chief Sam Dotson should order the department to stop using StingRay-like technology until lawmakers outline the legal parameters to guide their use.
“That the people shall be secure in their persons, papers, homes [and], effects, and electronic communications and data, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, or access electronic data or communication, shall issue without describing the place to be searched, or the person or thing to be seized, or the data or communication to be accessed, as nearly as may be; nor without probable cause, supported by written oath or affirmation.”
Tony Messenger • 314-340-8382