The Supreme Court of Wisconsin upheld a murder suspect’s conviction this week after police located the man using a controversial cellphone surveillance tool known as a Stingray.
A decision published by the court on Thursday found that police were well within their right to use the tracking device in their search for (and eventual location of) murder suspect Bobby Tate in 2009 because authorities had first obtained a court order to locate the phone, and thus the suspect.
While the court order was not a specific warrant, it acted in the same way, the state supreme court ruled.
The decision upholds those of Wisconsin’s appellate and district court, both of which found the tracking of Tate’s prepaid cellphone in a murder investigation was legal. The state has since passed a law requiring a narrow, specific probable cause warrant before police can track the cellphone of a suspect, but the law was not in effect at the time of Tate’s investigation.
In 2009, Milwaukee police used eyewitness account and surveillance video to tie Tate to a fatal shooting outside a store. Before the shooting, surveillance video at another store showed a striped-polo wearing Tate purchasing a prepaid cellphone. According to eyewitness testimony, the man who purchased the phone identified himself as “Bobby.”
Authorities used the information to obtain a court order allowing them to search for the phone. Armed with a Stingray device, police went to an apartment complex, knocked on every door and eventually located Tate wearing the same clothing from the surveillance video.
After losing a motion to suppress the evidence gathered from the Stingray, Tate pleaded no contest to first-degree homicide. However, he appealed the decision from the motion to suppress to a higher court. When that court upheld the decision, he took his case to the state’s supreme court, which ruled against him last week.
The case is one of the few in which a court ruled directly on the merits of using a Stingray device, though the decision is likely to have little effect on similar cases in other parts of the country, notably those cases in which police did not obtain a warrant, attempted to cover up Stingray use or both.
Last month, the Associated Press reported that the Obama administration had been pushing local law enforcement to stay quiet about their use of the devices, many of which are obtained by municipal police departments through Department of Homeland Security grants intended for anti-terrorism programs. The administration’s guidelines prompted many law enforcement agencies — including at least one that TheBlot Magazine has been in contact with — to heavily redact or outright reject open records requests on the subject.
But at least one court has compelled police to detail their use of the device.
Last year, a Florida appellate court overturned the petty theft and sexual battery convictions of Tallahassee resident James Thomas after police failed to acknowledge their use of a Stingray device in the man’s apprehension. Testimony later released by a Florida judge pursuant to a lawsuit filed by the American Civil Liberties Union revealed that law enforcement officials used a Stingray and a portal device known as a Kingfish in order to locate the suspect — all without a warrant.
It wasn’t the only time: According to testimony at a court hearing on the matter, Tallahassee police acknowledged conducting warrantless searches using a Stingray device “over 200 times” within a three-year period.
Many law enforcement agencies that have Stingrays have cited a confidentiality agreement with the manufacturer of the spy tools, Florida-based Harris Corporation, as their reason why they can’t disclose their use of the surveillance devices.
Indeed, at least one invoice from Harris obtained by Sacramento TV station KXTV and reviewed by TheBlot sports a warning that the sales slip is forbidden from disclosure under federal law covering trade secrets and security matters. But an older invoice obtained by TheBlot for a separate story on Stingrays lacks the warning, suggesting that Harris only recently started covering all documentation related to the sale and use of Stingray devices under a non-disclosure agreement.
Matthew Keys is a contributing journalist for TheBlot Magazine.