Gail Fry | Black Voice News & IE Voice Contributor
In litigation between the Electronic Frontier Foundation (EFF) and the San Bernardino Superior Court, the San Bernardino County Sheriff’s Department and District Attorney’s Office that rose to the California Supreme Court, the County claimed a need to protect confidential informants, yet an unsealed search warrant exposes a confidential informant’s identity and reveals a domestic violence victim.
The unsealed search warrant was one of nine released by the San Bernardino County District Attorney (SBCDA) to the Electronic Frontier Foundation (EFF) then provided to the IE Voice and Black Voice News.
Before the 4th District Court of Appeal (Appellate Court), the San Bernardino Superior Court (SBSC) at the behest of the San Bernardino County Sheriff’s Department (SBCSD) and District Attorney (the County) claimed the search warrants and related documents (search warrants) should remain sealed indefinitely, because of sensitive information about confidential informants and the need to protect them as well as “official information.”
Official information is “acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public.”
The search warrants sought by EFF involve law enforcement’s use of cell-site simulators known as “Stingray” devices, which mimic cell towers, capture data from cell phones of criminal targets, and from all cell phones in range. Additional information can be found at: https://www.eff.org/document/cell-site-simulators
In 2017, the SBCSD had the most search warrant applications seeking digital property per resident in the state as well as the SBCSD’s request for and SBSC’s granting and indefinite sealing of those warrants caught EFF’s attention.
EFF argued that Stingray Devices are highly invasive surveillance tools used with little oversight or transparency by the police while capturing details of both criminal suspects and innocent people. In their lawsuit, EFF claimed that the public has the right to access these search warrants, claiming sensitive information can be redacted.
Privacy concerns
EFF explained that these search warrants raise privacy concerns and that the public has the right to know how these devices are used and whether their cell phone data was swept up in a surveillance.
During the litigation, the County unsealed and released nine search warrants to EFF, all authorizing the use of Stingrays. However, it withheld 80 out of 120 pages of search warrant material arguing that they should remain indefinitely sealed.
Search Warrant Exposes Confidential Informant
In reviewing the released search warrants, the IE Voice and Black Voice News discovered that in one case, Sheriff Deputy Rudy Delgado requested a warrant be sealed but did not check the boxes “official information” and/or “informant protection,” the grounds required for sealing. SBSC Judge Gregory Tavill denied the sealing request.
On page 7 of the search warrant, under SEALING ORDER/SERVICE OF WARRANT, the words “Add addition information to HOBBS the PROBABLE CAUSE” were written.
Hobbs refers to a 1994 California Supreme Court decision where a defendant sought the identity of a confidential informant to unseal and quash a search warrant and suppress evidence. The defendant’s motion was denied by the Yuba County Superior Court.
When the case was appealed, the Appellate Court ruled that the defendant had due process rights to reasonable access of information to challenge a search warrant’s validity. The California Supreme Court ruled that Yuba County Superior Court’s examination of the warrant and its basis was sufficient.
In the Delgado related search warrant, The IE Voice/Black Voice News is releasing, criminal Ameno Bun was arrested for stabbing his girlfriend several times in the back, and on an outstanding felony warrant.
Although the unsealed search warrant was redacted, on page 6 of 9, no redactions occurred, and there are at least five words that expose the victim’s name as well as the identity of the confidential informant.
The IE Voice and Black Voice News is fully releasing this search warrant to the public here but is redacting 15 words to protect the confidential informant, and the girlfriend’s identity.
Red underlining added by Black Voice News and IE Voice to highlight key points in the document. (Document Source: Superior Court of San Bernardino).
EFF Attorney Mackey explained that even if the informant and victim’s names could be redacted, other portions of the affidavit show the public can learn information about law enforcement’s investigation and warrant request using redactions, instead of sealing the entire document.
“We believe the warrant you identified is an example of how that is possible,” Mackey said. “I agree it raises questions about why the majority of the affidavits had to be sealed in full when this affidavit was fully public.”
The test was on whether the Superior Court’s legal test was valid before sealing the warrants indefinitely, Mackey said, explaining that the Appeals Court found the legal test sufficient.
Additionally, the IE Voice and Black Voice News is releasing the cell phone numbers in these warrants to inform the public and ask whether the targets were ever notified as legally required.
The cell phone numbers were: (760) 541-6617, (909) 534-1881, (909) 499-7934, (909) 645-4771, (909) 709-9719, (909) 787-9285, (626) 755-8234, (909) 486-1227, (657) 227-6016, (701) 260-9947.
The SBCSD asks the court for a 90-day delay in notifying the targets explaining otherwise, it would endanger the life or physical safety of an individual; lead to flight from prosecution; destruction or tampering with evidence; intimidation of potential witnesses, or seriously jeopardize an investigation or delay a trial or lead to an adverse result.
Notification of the criminal target is required at the execution of a warrant, unless ordered by the court.
When asked for comment, SBCSD PIO Public Affairs Division Mara Rodriguez said “Sheriff Dicus/the Sheriff’s Department has commented on this matter multiple times in the past and has no additional comment at this time.”
“I can share with you that our policy information on Cell-Site Simulators is available on our public website. Also, the warrants which were withheld in this case were ordered sealed and related to an active case,” Rodriguez said. “The Sheriff’s Department provided EEF an example of an unsealed warrant, which authorized the use of the cell [site] simulator.”
“In regards to the warrant in question SW18 0850, our Office did not object to the release of the search warrant, as there was never a sealing order for the warrant or its material from the Court,” San Bernardino County District Attorney’s Office public affairs officer Jacqueline Rodriguez told BVN/ IE Voice.
Electronic Frontier Foundation’s Lawsuit
EFF’s lawsuit against San Bernardino County, its sheriff, and its district attorney seeking to unseal search warrants authorizing the use of the Stingray began on October 23, 2018. After obtaining some warrants, EFF dismissed the case and filed a new complaint on October 8, 2019 against the SBSC, the County of San Bernardino, and its district attorney.
On January 15, 2021, SBSC Judge Dwight Moore denied EFF’s petition, explaining these specific warrants relate to a multi-defendant gang murder case and two others, unsealing would complicate state interests, sources and methods, and pose dangers to confidential informants.
In March of 2021, EFF appealed to the 4th District Court of Appeal. EFF explained “When courts authorize law enforcement’s use of surveillance technologies to sweep up innocent people’s private data, the public’s rights of access to judicial records is critical.” IE Voice and Black Voice News Executive Editor S.E. Williams and Contributor Gail Fry submitted Friend of the Court Briefs in support of EFF’s appeal.
The County argued the search warrants, described as so-called “Hobbs affidavits,” should remain sealed indefinitely, due to sensitive information about confidential informants and “official information.”
After oral arguments, the Appellate Court ruled in favor of the County, finding an exception to the public’s right to access court documents, and ruling that when a search warrant affidavit contains a confidential informant, the affidavit may be sealed to protect their identity.
The court reasoned that the affidavits provide information about and facts learned from confidential informants, and the County’s investigations and investigatory techniques, finding a “line-by-line redaction” of the affidavits is “not practicable.”
It explained that while granting EFF access to the Hobbs affidavits had some public benefits, such as enabling greater public oversight of county law enforcement, they were outweighed by the harm to the criminal investigatory process.
The California Supreme Court
After the Appellate Court agreed with the San Bernardino Superior Court’s decision, EFF filed a Petition for Review at the California Supreme Court, asking it to resolve conflicting Appellate Court opinions and/or de-publish the Appellate Court’s opinion.
EFF reasoned that the Supreme Court should review the lower court’s decision as it conflicted with the public’s basic rights of access to warrants, affidavits, and returns under Penal Code Section 1534(a), California Rules of Court 2.550-2.551 regarding the sealing of records, the common law, and the California Constitution, which require courts to favor transparency.
On January 11, 2023, the California Supreme Court denied EFF’s petition.
“EFF is disappointed that the California Supreme Court declined to hear the case, as it will make it harder for the public to understand when and how law enforcement use invasive surveillance technology,” Mackey said. “This ends our case and lets the appellate court’s decision stand, so unfortunately, there is no next step, as the case is over.”
This covert surveillance technology is known to be used by law enforcement agencies in the states of Alaska, Washington, California, Nevada, Arizona, New Mexico, Texas, Oklahoma, Louisiana, Florida, Georgia, North Carolina, Tennessee, Virginia, Maryland, New Jersey, Delaware, Pennsylvania, New York, Massachusetts, New Hampshire, Michigan, Indiana, Illinois, Wisconsin, and Minnesota. See this map for details.