CHARLOTTE, NC (WBTV) - It was March of 2012. Charlotte City Council was getting down to business at its regularly scheduled meeting. Buried deep inside the consent agenda was a request from Charlotte Mecklenburg Police. There was no debate, no discussion on item number 41, just a rubber stamp vote. CMPD got the okay to use a federal grant to spend $357,442.38 on "vehicular based and manned portable surveillance equipment."
The Democratic National Convention, with its security risks, was just a few months away. It seemed no one gave the buy a second thought, until earlier this year. Reports started trickling out of police departments around the country using high-tech surveillance equipment. It was being used as close at Wilmington and as far away as Sacramento, California. One thing became clear, those police departments using the equipment didn't want to talk about it.
In June, WBTV News put in a public records request with the city of Charlotte to learn more about the March 2012 vote. WBTV asked for invoices, contracts and policies of use for the equipment purchased. It would take three months of back and forth emails for the city to respond. WBTV received heavily redacted documents at the end of September. The invoices showed the purchase of equipment from Florida-based, Harris Corporation, but the specifics like model numbers and names were blacked out. Judy Emken, an attorney for CMPD, wrote in an email to WBTV, CMPD "has purchased from the Harris Corporation cell site simulator equipment."
The equipment is known as a "Stingray." It is a piece of electronics, no bigger than a suitcase.
"It's more powerful than anything else that we have seen," said Mike Meno with the North Carolina Chapter of the American Civil Liberties Union. "With my cell phone they could find me in this room."
"I heard rumor that this technology existed," said Charlotte Defense Attorney George Laughrun. "Big brother is truly there, I mean at every step."
The Stingray is a tracking device. Police say they use it to find missing persons and suspects in violent crimes by honing in on their cell phones. Normally, when a person uses their cell phone the signal goes to the nearest cell phone tower. The Stingray tricks the phone, into sending it's signal to the cell-site simulator and with that police have the user's location. The issue for many is the Stingray doesn't discriminate. It is gobbling up everyone's location information within the device's radius, whether they are part of the investigation, or not. It's not know how big the radius is.
"The government doesn't need to be tracking where all of us are going," said Meno. "Your location data tells a lot about who you are. What we say is if the government knows where you are they know who you are, they know what doctors you are visiting, they know if your attending certain religious, or political activities, they know where you spend the night."
The public doesn't know much more about the device's use or it capabilities. Police departments that have purchased the equipment sign non-disclosure agreements with Harris Corporation as well as with the FBI. The Bureau has gone to court to keep the Stingray's use exempt from public records requests. The FBI argues release of information "would reveal sensitive technological capabilities" and could mean an "inability to protect the public from terrorism and other criminal activity because through public disclosures, this technology has been rendered essentially useless for future investigations."
Citing those non-disclosure agreements, CMPD declined our request for an on-camera interview, but in a memo to Charlotte City Manager Ron Carlee, CMPD Police Chief Rodney Monroe said the equipment does not allow police to collect, or monitor phone conversations. CMPD also says it does not identify, or keep numbers of phones not connected with an investigation.
"When the government says trust, without telling us why they are doing it, we shouldn't take it at face value," said Meno.
The public largely does have to take the police department's word that it is using the device in ways it describes. Use of it and information collected by the Stingray isn't subject to a search warrant. CMPD only seeks an order from a Superior Court Judge. It's a much lower legal burden.
Judge Richard Boner says CMPD comes to him usually at least once a week, sometimes more. He says the requests are straightforward. He says they say police are looking for a suspect in a crime, which is described, and that they need to use the Stingray to find the person. The order is open-ended.
"There is no time-limit that I can recall," said Boner. "It's basically until they give up, or until (CMPD) finds them."
An open-ended order is different than a search warrant which expires after 48-hours. Probable cause is also required in a search warrant and whatever is found is reported back to the court. The order allowing the use of the Stingray has no reporting requirement.
"I don't know how the extraneous data is disposed of," said Boner. "My gut reaction, if it's not someone they are looking for there is no use made of it."
Judge Boner likens it to a detective personally surveilling outside a suspect's home. He says he is perfectly comfortable with the use of the tracking device and sees no cause for concern.
Defense attorneys like George Laugrhun do have questions.
"Never seen (Stingray evidence) in a discovery package," said Laughrun.
He says the Mecklenburg County District Attorney's Office has always been transparent about evidence. It is all released to defense teams prior to trial. It allows lawyers to poke and prod, it's part of getting a fair trial, but Stingray orders have remained under seal. They are not attached to any case. They are locked ways in the clerk of court's office, out of sight.
"The question becomes has the DA ever seen it?" said Laughrun. "My guess would be with as transparent as the DA's office is on discovery they give you everything they have."
Mecklenburg County District Attorney Andrew Murray in a statement to WBTV says he knew CMPD had this tracking technology. He wouldn't say if his office knew the specific cases in which it was used.
"The office does not comment on police investigative techniques, but prosecutors provide all evidence provided by law enforcement and identified as discoverable by law to the defense in every case," said Murray's statement.
WBTV along with its new partners "The Charlotte Observer" have gone to court, asking a judge to unseal the orders allowing the use the tracking device. CMPD, in a letter to Judge Boner said it will not stand in the way of the request.
"We had originally sought to have these documents sealed to prevent suspects from interfering with the criminal investigation until they were captured. After conferring with the FBI and reviewing the materials, the Charlotte-Mecklenburg Police Department has no objection to the unsealing of these documents at this time," said Monroe.
Judge Boner has indicated to WBTV he has no issue either with releasing the documents. He is in Davidson County this week and will consider the motion when he is back in Mecklenburg County.