By Linda Lye

In response to a lawsuit brought by the ACLU, the Sacramento sheriff has now admitted that it used intrusive cellphone surveillance technology – commonly known as a “StingRay” – without obtaining court approval. Days after this stunning admission, the sheriff publicly announced a new policy for the use of StingRay technology. While having an actual policy in place is certainly a step in the right direction, the new policy raises serious concerns.

First, the sheriff’s announcement implicitly acknowledges but sidesteps two important and troubling revelations. Before this week, the sheriff had no policy in place for using this surveillance technology. And as a matter of practice, the sheriff routinely used the device without obtaining any court authorization at all. Law enforcement should not be deploying powerful surveillance technology on an ad hoc basis and with no court oversight. That’s just not the way our constitution works.

Second, the sheriff only says that he will seek judicial review before using a StingRay. It doesn’t say that the sheriff will seek a warrant based on probable cause.
Because StingRays are indiscriminate, highly intrusive devices that obtain information from innocent third parties, and not just the target of an investigation, there is a serious question whether they can ever be used consistent with the Fourth Amendment. But at a minimum, the Fourth Amendment requires a warrant for their use because StingRays can pinpoint cell phone users’ location, even when they are inside their homes or other private spaces.

The policy should require the sheriff to obtain warrants, in other words, to demonstrate to a court probable cause to believe that a suspect has engaged in criminal wrongdoing. Obtaining some unspecified “judicial authorization” based on weak information isn’t enough.

Third, the policy states that data from the StingRay “shall not be used to support probable cause for a search warrant or arrest. Officers from the department and allied agencies shall develop independent probable cause for any search warrant or arrest.” This means that the sheriff’s office will use the result of a StingRay search in the course of an investigation, but then create a parallel paper trail (“independent probable cause”) to justify the conclusions they came to based on StingRay surveillance.

This highly problematic practice seeks to insulate the sheriff’s warrantless use of a StingRay from constitutional challenge. We’ve seen federal agencies create parallel paper trails in order to avoid legal challenges to troubling forms of surveillance. The sheriff is trying to do the same thing. But due process means that people accused of a crime have a right to know the actual steps taken in an investigation – including whether questionable surveillance tools were used to create a case against them.

Although the sheriff has said he started developing the policy in May – shortly after the filing of the ACLU’s lawsuit – in an “effort to maintain public trust,” the policy still has a long way to go.

Linda Lye is senior staff attorney at the ACLU of Northern California.

Law enforcement officers across the land are taking property and cash from people without even having to prove that person guilty of a crime.

Today, Sept. 10, the state assembly will vote on SB 443, a bill that would rein in civil asset forfeiture. CALL your state assemblymember now and urge them to vote YES on SB 443 to end "theft by cop."

Read these true stories.

LA music producer

Last year, in 2014, a Los Angeles music promoter had his cash seized twice. He had sent his staff to collect the door receipts at big Mexican music concerts that he promotes and organizes. In both cases, a simple traffic stop turned into a loss of property, even though there was no evidence of a crime. In neither case was a driver charged with a crime. In Shasta County, $13,000 was taken, and in Woodland, Oregon, $32,000. In both cases, after lengthily delays by both local law enforcement and then federal prosecutors, the funds were returned to the lawful owner, but only because they had the means to hire lawyers to fight their case. In the Shasta case, he knew that the legal fees might exceed the recovery, but he was so angry, he wasn’t about to let it go.

Elizabeth James — East Palo Alto

When Elizabeth James (first name changed at her request) retired after thirty-one years at the phone company, she looked forward to finally taking a trip across the country with her husband. She’d worked hard, raised two kids, and cared for a developmentally disabled sister whom she put up in a house she bought and renovated two blocks away from her modest East Palo Alto bungalow. Mrs. James is still waiting to take that trip. In 2009, East Palo Alto police, working with the US attorney, arrested James’ son for his involvement in a drug ring.  He’d been living along with his aunt in the home his parents had purchased for her. The government evicted the aunt and proceeded to forfeit the house. As they went after Elizabeth James’ property, federal prosecutors never charged her with a crime; they didn’t even allege that she knew her son was selling drugs. The James fought for over a year and a half to get their property back. As the legal bills piled up, Mr. James, a machinist, took out additional credit cards. With no end in sight, their lawyer advised them to accept a deal. In exchange for a guilty plea from their son, the government dropped its forfeiture of their house, but declined to reimburse their legal fees or the cost of repairing the damage left behind when police kicked in the doors of the house and ransacked it. Mrs. James says the ordeal cost them close to $70,000. Not only were the Jameses, senior citizens, left to take care of three young grandchildren after their son was sent to prison for selling drugs, Mr. James has borrowed against his future retirement income to pay off the debt they incurred to get their house back. Mrs. James feels betrayed. “The government, they can come in and just take anything. They have no respect for a person who works all their lives,” she says. “I need to move on with my life, I want to travel. I want to do something before I leave this world,” she says. But she doesn’t know when that day will come. “I don’t think I’m going to pay off the debt in this lifetime unless my husband hits the lotto.”

U.S. versus $10,000 — Los Angeles

A taco truck owner had $10,000 taken by LA Sheriff’s Department near Lancaster. He answered honestly that he was carrying a large sum of money. Why wouldn’t he?  He wasn’t breaking the law, he was traveling with his own money, from his own legal business. There were no drugs in the car, no evidence of a crime, but a K9 keyed on the money. The driver was not arrested or charged. But his property was seized and put into forfeiture proceedings. And even though he got a CA lawyer, and went to a CA court, and had a CA judge order the return of his money, the LASD declared that it had already been transferred to federal jurisdiction.  At that point he was advised by his attorney to drop the case, because  fighting the US Government is too expensive, and has been known to morph from asset forfeiture, into deportation investigations of relatives, IRS involvement  such is the interlocking and overwhelming power of the federal government.

Tony Jalali — Anaheim

When Tony Jalali fled Iran in 1978, he came to America seeking protection of the rule of law, due process, and justice. He never would have imagined that 35 years later he would be battling in federal court to save the small office building that represented his family’s life savings. Mr. Jalali had previously rented an office space to a medical marijuana dispensary. And although Mr. Jalali was never been charged with any crime nor were his tenants, the Anaheim Police Department and the federal government attempted to use civil forfeiture to take his entire $1.5 million commercial building. His modest building was also the home to an insurance company, a dentist and the business office of a car dealer. Neither he nor the dispensary were ever charged with a crime, and he would have lost his life savings, except that the Institute of Justice provided him with pro bono legal help. It took 2 years of heartache and intimidation. Mr. Jalali was able to survive, but only because he had significant legal support.