DEWITT, Mich. – A former director of Michigan State Police Forensic Science addressed the serious allegations FOX 17 uncovered, which accuse the Attorney General’s office and state prosecutors of influencing state police crime labs to falsely report marijuana; essentially turning misdemeanors into felonies.
Former MSP Forensic Science Director John Collins told FOX 17 that he resigned from this role in 2012 due, in part, to these crime lab reporting issues: politics working to trump science.
“In my experience, it was just a non-stop political game that really got frustrating, and it wore down the morale of our staff, and it quite honestly, it wore me down.”
Collins served as director 2010 through 2012, when he said he surprised the agency by resigning; even after the 2012 success of helping earn MSP Forensic Science international accreditation with the American Society of Crime Laboratory Directors/Laboratory Accreditation Board.
“It was really a big deal for me to let people understand that our laboratories were not in the prosecution business, they’re not in the conviction business, they’re in the science business,” said Collins.
“And if we don’t position ourselves as being in the science business, then we really start to go down a path that’s going to lead us to a lot of trouble. And that was very tough, because that was a major cultural, a different kind of a cultural message than had really been communicated before.”
Collins said forensic science is his passion. He is now president of The Forensic Foundations Group, a consultant, and publishes articles quarterly in Crime Lab Report: Media and public policy analysis for the forensic science community. Last March, Collins also published an article in Forensic Science Policy & Management: An International Journal, and depicted how a utopian forensic crime lab would operate, which he said is quite different than state labs.
“There is a lot of politics that is involved in these cases,” said Collins.
“So even if the state police was to really kind of buck the trend, and say, ‘look, these laboratories are scientific organizations, they’re not law firms, okay, and we’re not going to let them become law firms,’ even if they kind of buck that trend, you can bet that there’s going to be some angry prosecutors that are going to call the Governor’s office and complain. It’s like kicking over a bee’s nest.”
Lorincz, an Ottawa County father, is the defendant whose case FOX 17 has covered since February. Lorincz, a card-carrying patient, is charged with a felony for having a “smear” amount medical marijuana, in the form of Butane Hash Oil.
“An accreditation assessor would have a problem would probably look at this and have a problem with why would you even say anything like this?” Collins said, looking at the crime report’s phrase, “origin unknown.”
After review of Lorincz’s crime lab report, Collins said he is not surprised to see the ambiguous results.
“Even though I don’t know the nature of what occurred within the state police, any time that scientists, or administrators of scientific operations, if they would intentionally try to create ambiguity to create a political advantage is beyond unacceptable,” said Collins.
Collins explained it is appropriate for prosecutors to explain state statutes to crime labs, or what elements constitute a crime. However, he said for any prosecutors or other officials to tamper with science is illegal.
“One thing that we do not do, or should not do, is try to widen the gray area so that we create more ambiguity so that more possibilities are on the table,” said Collins. “That’s not science, that politics.
Yet their responses appear to be blanket statements. Both agencies defer to the other: MSP public affairs officials wrote that it is up to the prosecutors to charge crimes, and then PAAM president wrote it is up to the crime labs to report science.
FOX 17 has reached out to the Attorney General’s office for comment, and has yet to hear back.
As for the defendant in this case, Max Lorincz told FOX 17 Friday that he wants the prosecutor held accountable. Lorincz also questioned the amount of money that has been spent in court over this case, and asked for justification of his felony charge.
OTTAWA COUNTY, MI – An attorney claims prosecutors pressured state police crime labs to change the way THC, the active ingredient in marijuana, is reported in an effort to circumvent Michigan’s medical marijuana law.
Michael Komorn alleges scientists were told to report an unknown origin for THC contained in oil, wax or perhaps a brownie if no visible plant material was present. The THC would then be declared a synthetic substance rather than marijuana – turning a misdemeanor pot charge to a two-year felony.
“The crime lab is systematically biased towards falsely reporting Schedule 1 synthetic THC, a felony, instead of plant-based marijuana, a misdemeanor, ” Komorn, a Southfield attorney known for handling medical marijuana cases, told The Grand Rapids Press and MLive.
In the case of Max Lorincz, a 35-year-old Spring Lake man with a medical marijuana card, the change could turn him into a felon, Komorn said.
Lorincz’s troubles started in September 2014 after calling 911 for medical assistance for his wife. A police officer responded and spotted a small amount – “a smudge,” Komorn said – of hash oil.
Ottawa County prosecutors charged him in January with marijuana possession, a misdemeanor. He refused to plead guilty because he was a valid medical marijuana user. The charge was dropped in February, only to be replaced by the felony synthetic THC charge.
Komorn used the Freedom of Information Act to obtain numerous emails from state police crime lab workers, some raising concern about the way they had to report THC cases. Others testified in court about the new policy of denying evidence of THC coming from a marijuana plant if no material is found.
He contends that the Prosecuting Attorneys Association of Michigan and state Attorney General Bill Schuette, an opponent of medical marijuana, influenced state police policy.
“It is scandalous, scandalous. How can you trust the state lab when they are influenced by politicians?” he said.
State police said in a statement: “The ultimate decision on what to charge an individual with rests with the prosecutor. The role of the laboratory is to determine whether marihuana or THC are present. Michigan state police laboratory policy was changed to include the statement “origin unknown” when it is not possible to determine if THC originates from a plant (marihuana) or synthetic means. This change makes it clear that the source of the THC should not be assumed from the lab results.”
Ottawa County Prosecutor Ronald Frantz could not be reached for comment.
A hearing in Lorincz’s case is set for Nov. 9 in Ottawa County Circuit Court.
In an email Komorn obtained from authorities, a state police crime lab supervisor, Kyle Hoskins, said examiners need to see plant material because they would have no idea how it was produced unless they watched its production. He noted the debate and asked the opinion of Ken Stecker of the Prosecuting Attorney Association of Michigan, who reportedly responded: “That is my opinion, THC is a schedule 1 drug regardless of where it comes from. I hope that helps. Ken.”
Lt. James Pierson, director of the Grand Rapids laboratory, said that police are finding a “significant amount of THC wax and oil,” which he said are not covered by the medical marijuana law.
If police seize wax or oil from a medical marijuana patient, and the lab test identifies the substance as marijuana, rather than delta-1-THC, there is no probable cause to arrest, Pierson said in an email referenced by Komorn in court filings.
He said he learned that if a “speck” of plant material is in the oil, the test will come back as marijuana.
“Is there any way to get this changed? Our prosecutors are willing to argue that one speck of marijuana does not turn the larger quantity of oil/wax into marijuana,” Pierson wrote.
Bradley Choate, supervisor of the Controlled Substances Unit in Lansing, disagreed with the changes. He said analysts are left with two choices when finding THC: identify it as marijuana, which is a misdemeanor for possession, or a synthetic equivalent of THC, which is a felony if possessed.
“There is not a third choice,” Choate wrote. “The question then becomes is the THC from a natural source, i.e., marihuana, or a synthetic source. The presence of other cannabinoids indicates that the substance is from a natural source. I don’t know of any other way to determine that THC was synthesized unless a lab was found and the pre cursor substances to make THC were present.”
He said prosecutors rely on their reports in filing charges. A report that says delta-1-THC with no explanation would lead a prosecutor to think the substance was synthetic.
“This could lead to the wrong charge of possession of synthetic THC and the ultimate wrongful conviction of an individual. For the laboratory to contribute to this possible miscarriage of justice would be a huge black eye for the Division and the Department.”
As forensic scientists, Choate said they had to apply science to the law.
“I have a problem with the procedure manual stating that a conclusion of marihuana cannot be stated in the report. … The conclusion is incorrect because the resins are Marihuana. Apparently analysts in our system (are) hung up on the fact that to identify marihuana they need to see plant material.”
Choate said that “Guiding Principles” training says “that ‘Conclusions are based on the evidence and the reference material relevant to the evidence, not on extraneous information, political pressure, or other outside influences.”
“When we made the previous changes I made it very apparent that I did not agree with it. One of my concerns was that by reporting out THC instead of marijuana it would lead Prosecutors charging people with synthetic THC. This appears to be what the agency wants. The question I would pose to all of our analysts is how they would answer questions on the stand.
“In the scenario described how would they answer the question that absent the plant material speck, in their opinion is the rest of the wax material marihuana or not and in their opinion is the THC identified synthetic or natural? Again the legal definition of marihuana includes the resinous extract which contains cannabinoids and we can identify those cannabinoids.”
Cellular communications are inherently vulnerable as they pass through the air. Whereas it was once required to physically tap into a wire based network in order to deploy surveillance methods, cellular transmissions allow practically anyone with the desire to intercept our voice, text, and data transmissions completely anonymously.
The concept of eavesdropping on cellular communications is nothing new, in the time of analog cellphones a basic scanner was all that was needed. In 1993 before a congressional committee a man presented a modified scanner that allowed everyone in the room to listen to nearby cellular conversations. Congress banned the sale of such scanners, but since then there hasn’t been much serious public policy debate on the issue.
Technology has obviously come a long way since 1993, and the cellular networks in place today are highly vulnerable to surveillance from criminals and governments alike. Many federal, state, and local law enforcement agencies have equipment designed for military use with surveillance capabilities that far exceed the scanners from the days of analog. They’re indiscriminate by their very nature, sometimes collecting data on tens of thousands of phones at a time. They’re used anonymously with virtually no oversight, with no record that they’ve been used, and often without a warrant.
This is especially true here in Michigan where local law enforcement agencies have the most highly sophisticated surveillance equipment with capabilities that raise a variety of Fourth Amendment and other Constitutional concerns.
Legislative bills were filed in Michigan last year by a former State Rep that would have provided much needed oversight and regulations regarding these technologies, but unfortunately they didn’t get any traction. Everyone is very tight lipped. Why are law enforcement and our legislators so unwilling to discuss this topic?
Guise of Secrecy
One major reason why there’s an utter lack of public debate on this surveillance is rooted under the guise of its supposed secrecy. I say guise because they’re not really secrets at all, this surveillance has been outlined in full detail in the Harvard Journal of Law and Technology, as well as a number of other sources.
However, law enforcement often hide behind non-disclosure agreements, and the Homeland Security Act which they claim prevent them from speaking publicly about these technologies, even going so far as withholding information from the courts. The government considers their use of this surveillance to be “law enforcement sensitive information”, and they’ve gone to great lengths to protect the shroud of secrecy. It wasn’t until after a decade after their initial use that this technology, in this case called Stingray, was first revealed in a pretrial criminal case. Rather than disclose information about it the government dropped the charges. The majority of what is known about this surveillance has been acquired through highly redacted Freedom of Information Act requests.
One might ask themselves how it’s possible that such powerful surveillance tools wouldn’t have come up in a criminal case sooner, and the answer is the use of this technology is often concealed by law enforcement with misleading source descriptions, often referring to their source as a “confidential informant” when in fact the evidence was acquired through cellular surveillance.
In some cases law enforcement and prosecutors have been shown to have mislead judges not only about their use of these technologies, but also the capabilities of the technologies themselves citing the need to do so based on proprietary non-disclosure agreements.
Regardless of law enforcement’s attempts to keep them secret these devices like the Stingray and others, as well as the vulnerabilities they exploit are widely known. They’ve been widely reported on, depicted in movies, can be purchased by anyone, and at this point they’re even produced at home by hobbyists for relatively little money.
Herein lies part of the problem. A device that costs law enforcement agencies over $100k to purchase can now be purchased online by anyone for less than $2000. Governments no longer monopolize the cellular surveillance market. The vulnerabilities in our networks are no longer secrets, and the prevention of serious public discussion about these technologies under the guise of non-disclosure agreements and DHS laws are in fact leaving all of us vulnerable to bad actors that extend well beyond our government. There has even been commercial interests from stores seeking to track their customer’s movements.
Here in Michigan we know at the very least Oakland County law enforcement have the most advanced military grade surveillance equipment available called Hailstorm.
So what exactly is this super-secret technology that according to Sheriff Bouchard isn’t a surveillance device? On the purchase form Undersheriff Michael McCabe lists the description as “allows for pinpoint tracking of criminal activity”. Is that really all it does, or do these statements simply fall in line with the systematic misrepresentation of the all-you-can-eat surveillance buffet currently hidden under the guise of secrecy by law enforcement?
Carrier-Assisted Surveillance
Generally when we think of cellular communication surveillance we think of carrier-assisted surveillance where the telecommunications companies themselves provide and/or enable surveillance for law enforcement. They’ve been providing such services for over 100 years and generally have teams of compliance officers that help facilitate and keep record of these services which provide a necessary check to balance out law enforcement’s use of such surveillance powers.
This type of carrier-assisted surveillance is generally limited to specific telephone or other identifying numbers and legally requires a Pen/Trap order or a warrant depending on the type of surveillance. Carrier-assisted surveillance is not what we’re discussing here.
IMSI Catchers (aka Stingray/Hailstorm)
Here we’re discussing the ability of independent federal, state, and local agencies, as well as criminals, to set up fake cell sites indiscriminately monitoring all cellphones within their vicinity, tricking them into providing data and even complete control.
IMSI catchers are radio devices that can be used to capture and decrypt transmissions between cellphones and cell towers, as well as simulate cell towers constantly pinging cellphones within their vicinity in order to trick the cellphones into connecting to it whether the phone is in use or not. IMSI catchers can be used to identify, locate, monitor, gain access, and in some cases gain complete control of cellphones within their vicinity.
Despite law enforcement’s best attempts to keep it secret the IMSI catcher that has gained the most notoriety due to their widespread use of it is the Stingray. Its use and legal implication in criminal trials have been detailed in a document published by the ACLU. Many federal, state, and local agencies own and operate Stingray’s across the country.
Not even congress can get law enforcement to tell them exactly how many agencies use them. By itself the Stingray enables anonymous and indiscriminate collection of metadata like location, and the real-time collection of incoming and outgoing numbers of all cellphones within its vicinity without leaving a record that it’s ever been used.
More worrisome, when used with additional programs, or an array of additional products provided by the manufacturer, its surveillance capabilities extend into enabling the real-time monitoring of data, text, and voice transmissions. All of which can be enabled anonymously by the operator without anyone knowing they’ve done so. It’s kind of like a “look but don’t touch” policy towards surveillance and it’s currently being enforced on the honor system with no oversight. As is the case with Oakland County Sheriffs department, the capabilities of these devices are often downplayed and outright misrepresented, even to judges.
The most cutting edge and powerful IMSI catcher available to law enforcement (that we’re aware of) is the military grade Hailstorm. Despite Sheriff Bouchard’s claims, Hailstorm, along with the Pen-Link platform which Oakland County purchased at the same time as Hailstorm, is the most powerful surveillance technology available to law enforcement today. Hailstorm was used by the military in the Iraqi war, among other things to coordinate drone attacks.
Though it’s full capabilities have been kept very hush-hush, Hailstorm reportedly enables the operator to locate, collect data (including content), and even download Trojans onto cellphones garnering full access and even complete control of the cellphone to the attacker. But we’re expected to believe the Sheriff when he states that Hailstorm doesn’t do the very thing it was designed to do (for the military), and that Oakland County shelled out the extra cash for the most overreaching surveillance capabilities available while not actually using them.
Anyone with $2000 to spend can purchase or build an IMSI catcher to monitor all of your cellular transmissions by exploiting vulnerabilities that could be easily fixed, but instead are left in place to help facilitate government surveillance.
Last week’s change in DOJ policy which now requires that federal agents secure a warrant and delete all non-target data daily is long overdue, but it’s not legally binding at the state or local level. It’s unclear whether law enforcement in Michigan believes they need a warrant or simply a Pen/Trap order to deploy an IMSI catcher.
According to Sheriff Bouchard and McCabe they require a warrant to use Hailstorm, but they also claim it’s not a surveillance device, so with no oversight it truly remains unclear. It appears there are legal grounds to argue that a warrant should be required, particularly depending upon where the individual is when the surveillance takes place. We can’t reasonably be expected to believe that we voluntarily give up the right to privacy simply by using a cell phone.
The continued roués of secrecy protecting law enforcement from exposing their overreach of unchecked power with military grade surveillance equipment, and their likelihood of inevitable violations of our Fourth Amendment and other Constitutional rights based on the very nature of this technology, needs to be addressed here in Michigan.
Hopefully someone resurrects the Hailstorm bills HB 5710 and HB 5712 which would require law enforcement to secure a warrant prior to use of this type of surveillance, inform innocent citizens when their data has inadvertently been collected, create penalties for misuse, as well as create a much needed oversight committee to ensure these devices are being used lawfully. It’s that or succumb to Sheriff Bouchard’s Jedi mind tricks when he essentially states that “these are not the droids you’re looking for”.
Interestingly enough, anyone with an Android phone can download a number of apps that identify IMSI catchers. These apps will alert a person when they might be connected to an IMSI catcher. Unfortunately, no such technology is available for iPhones.
There is however a free app for iPhones that allows end-to-end encryption of calls and texts. There are also a number of other types of cellular communications encryption that can help prevent a person from being as easily vulnerable to intrusive surveillance from criminals and the government alike. Many more than are listed here. If you’re at all concerned about the privacy of your communications adding additional layers of encryption is worth looking into, and if you live in Oakland County get rid of your iPhone and buy an Android.
Legal Implications of Cellular Surveillance
The previous article on Cellular Surveillance outlined the overall gist of the rampant deceit and the shroud of supposed secrecy cloaking law enforcement’s use of IMSI catchers.
Here we’ll examine some of the specific ways in which IMSI catchers can be used, the potential differences in legal implications of the way in which they’re used, and highlight some of the ways citizens can protect themselves from this type of surveillance.
Pen/Trap Order vs Warrant
A great deal of controversy surrounds the varying opinions from one jurisdiction to another about the legal steps needed to be taken by law enforcement to deploy an IMSI catcher. Some agencies have used IMSI catchers without any warrants or court orders whatsoever, others require filing for a Pen/Trap order, some hybrid orders, and some jurisdictions require a warrant.
The majority of state and local agencies, as well as federal agencies up until last week, only require that a Pen/Trap order be issued from a court in order to deploy IMSI catchers. One problem with this is that the Pen/Trap Statute was crafted to allow solely for the recording of incoming and outgoing numbers, and IMSI catchers are capable of much greater degrees of surveillance at the operator’s discretion.
Additionally, the legal threshold for issuing a Pen/Trap order is very low. In fact all that is required is for law enforcement is to state that “the information likely to be obtained is relevant to an ongoing investigation.” 18 U.S.C. § 3122(b)(2).
Passive vs Active Monitoring
IMSI catchers can be used passively or actively.
Passive monitoring exploits the lack of, or limited level of encryption used to transmit data from a cellphone to a cell tower. Passive monitoring collects the transmissions between a cellphone and cell tower without interfering with them, and then decrypts that transmission in real-time for analysis. The type of data collected from passive monitoring is limited to meta-data like location and incoming/outgoing numbers.
Active monitoring exploits another well-known vulnerability; the lack of authentication required by cellphones to validate cell towers. Active monitoring actually simulates a cell tower tricking cellphones into connecting to the IMSI catcher.
IMSI catchers can then launch “man in the middle attacks” actively posing as the carrier network, or the target cellphone, effectively controlling all incoming and outgoing transmissions. They can be used to identify cellphones within their vicinity whether they’re in use or not, intercept incoming and outgoing calls and texts, and initiate denial of service attacks blocking cell phone service.
The newest breed of IMSI catchers like the Hailstorm which was recently purchased in Oakland County can even download Trojans to a cellphone gaining complete control over it. It should be noted that Stingrays, which are the most common IMSI catcher used across the country, can do the same with the use of additional programs being run by the operator. All virtually without anyone knowing they’ve done so.
Both types of surveillance have some common characteristics: both methods can be performed with IMSI catchers, both exploit well-known vulnerabilities in our cellular networks, both are indiscriminate by their very nature performing dragnet like surveillance of entire areas, and unlike carrier-assisted surveillance both are often deployed without any warrants or court orders.
Though IMSI catchers have the capability to perform passive or active surveillance the distinction between the two may be important due to the varying interpretations of legal requirements needed to deploy IMSI catchers in either mode.
To make matters more confusing these interpretations vary from one jurisdiction to another. Additionally, it’s important to note that once law enforcement has an IMSI catcher like the Hailstorm, or Stingray, the type of capabilities and in turn the type of surveillance deployed is entirely in the hands of the operator.
There’s absolutely nothing stopping an operator of a Hailstorm who may have a court order to collect meta-data from simply flipping a switch and actively monitoring voice, text, and data content, or even gaining access and complete control of a cell phone.
Much of the problem is that our state and federal government have yet to draft appropriate legislation dealing with this highly invasive technology. The inadequacy of our current statutes to contend with this technology was first pointed out by a Federal Magistrate Judge 1995, but rather than address the concerns the “all you can eat surveillance buffet” was offered to law enforcement as they were coached how to keep it all very hush-hush.
The 1995 Digital Analyzer Magistrate Opinion
In 1995 a Federal Magistrate Judge issued the first legal opinion of the government’s application of digital analyzers (IMSI catchers used passively). In this case the government wanted to “analyze signals emitting from any cellular phone used by any one of five named suspects of a criminal investigation”.
At that point DOJ policy was presumed to be to file for a pen register order authorizing surveillance which the government was doing. Magistrate Judged Edwards denied the government’s application explaining that a Pen/Trap order wasn’t required because the statute limits its application to “a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such a device is attached”. He explained that since this technology isn’t intended to be attached to the device that the Pen/Trap statute isn’t applicable.
Judge Edwards further stated that based on Smith v. Maryland that the government’s use of digital analyzers for location data and real-time collection of incoming and outgoing telephone numbers doesn’t constitute a search or raise any Fourth Amendment concerns. His basis was that telephone users willfully provide the numbers they dial to a third party the “numbers dialed by a telephone are not the subject of a reasonable expectation of privacy” and “no logical distinction is seen between telephone numbers called and a party’s own telephone number, device number, or serial number, all of which are regularly voluntarily exposed and known to others”.
While Judge Edwards asserted that current Pen/Trap statutes don’t expressly permit or prohibit the use of digital analyzers he personally expressed strong concerns regarding their use in law enforcement, particularly for the privacy rights of innocent third parties within the vicinity of these devices, the lack of congressional oversight, as well as the lack of required recordkeeping and in turn accountability.
So while the court couldn’t prevent the government from utilizing these technologies by law it was rightly concerned by the implications of the decision. Ultimately, this decision has in part resulted in an absolute surveillance free for all with indiscriminate Fourth Amendment violations rivaled only by the NSA surveillance revealed by Edward Snowden.
The difference is this surveillance isn’t limited to the federal government. At this point it’s not even limited to state and local law enforcement.
DOJ Policy
Up until last week DOJ policy towards IMSI catchers has been convoluted, self-contradictory, and like other law enforcement at times outright misleading to the courts and general public.
Based on Judge Edwards’s 1995 opinion the DOJ published a document in 1997 wherein they stated that provided law enforcement doesn’t intercept communications data, and they don’t require carrier-assistance, no warrants are required for the passive or active use of IMSI catchers. In the same document they stated that while agencies weren’t required by law to do so that they should probably continue to file for Pen/Trap court orders anyway when utilizing IMSI catchers for Pen/Trap purposes. So they clearly point out the loophole in the law while mentioning that prosecutors probably shouldn’t jump through it.
Surprisingly enough in 2001 the Patriot Act broadened the Pen/Trap statute by adding the term “signaling information” to the definition of pen register which was previously limited to “numbers dialed or otherwise transmitted”. Based on the new legal definition the 2005 Electronic Surveillance Manual published by the DOJ advises prosecutors that the new pen register definition “encompasses all of the non-content data between a cellphone and a provider’s tower.” While they pointed out this change they never officially state whether passive surveillance breached any Fourth Amendment limitations which would legally require securing a pen register, or whether it was simply a best practice for any IMSI catcher deployment. The fact that programs in 2007 started in which US Marshals began operating IMSI catchers from planes flying over cities collecting data on tens of thousands of people at a time might give us some insight.
The legal grounds for deploying IMSI catchers became even shakier after the 2012 Cellphone Simulator (Stingray) Magistrate Opinion was published.
Operating under the policy of filing for Pen/Trap orders for deployment of the active use of a Stingray device the government sought an order in which was ultimately denied by Magistrate Judge Owsley in Texas. Judge Owsley cited a lack of represented understanding of this technology on the part of the law enforcement and prosecutors involved, as well as a definitional concern whereby he stated the need for a known telephone, or other identifying number in order to issue a Pen/Trap order.
Based on the fact that the government did not have that information and indeed anticipated identifying that specific information through the use of the Stingray monitoring all cellular transmissions within the vicinity the targets were expected to be, Judge Owsley denied the application. He further expressed concerns regarding a lack of explanation for what would happen with the data collected from innocent cellphone users in the areas these Stingrays are deployed. Based on this opinion federal law enforcement would now first have to identify specific telephone or other identifying numbers prior to seeking a Pen/Trap order, at least for active surveillance. This legal opinion likely led to their lack of desire to clearly and officially state their policy towards IMSI catchers until last week.
A welcomed, while albeit systemically limited policy change was announce to take effect immediately last week on the part of the DOJ in regards to cell site simulators (IMSI catchers).
The new policy requires all federal agents to secure an actual warrant to deploy IMSI catchers. This certainly sets a more appropriate legal threshold for issuance than Pen/Trap orders for these highly invasive technologies with capabilities exceeding what Pen/Trap statutes were intended to encompass. This new policy also supposedly prevents the surveillance of content including conversations, text, data, as well as stored data on the phone. How exactly this might be enforced when nothing is stopping the operators of these devices from using them however they please is not mentioned. No penalties are put in place for misuse. Additionally, this new policy mandates that federal agents delete captured data from non-targeted individuals daily. While this policy change is a step forward in protecting our Fourth Amendment rights from the federal government, it doesn’t change the way state and local agencies will use these technologies.
Since the cat is already out of the bag some have the wonder if this policy change is too little too late.
State and Local Use
This suggested policy change from the DOJ is not legally binding for state or local law enforcement who have been documented in many cases to be deploying IMSI catchers passively and actively without any types of warrants for years.
So we’ve provided law enforcement with the equipment to enable surveillance without anyone other than the operators knowing they’ve done so, while hoping that they’ll resist temptation knowing there’s no oversight. This temptation has been too much to bear for many agencies here in Michigan
Secret Stingray
The government considers their use of this technology to be “law enforcement sensitive information”, and they’ve gone to great lengths to protect the shroud of secrecy.
It was only after a decade after their initial use that a Stingray came up in a pretrial case against Daniel Rigmaiden who was charged with fraudulently collecting hundreds of tax returns from deceased and other third parties. The government identified an IP address associated with a prepaid data-card used to file the tax returns, collected cellular tower history data from the carrier to identify the location of its use within a quarter square mile, and used the Stingray to track it to Rigmaiden’s apartment where it was plugged into his computer.
Prior to his arrest the government didn’t know Rigmaiden’s identity. Before locating the data-card with the Stingray the government obtained a search warrant pursuant to Fed. R. Crim. P. 41(b) authorizing the use of a cell site simulator.
By Joe Stone
Suggested reading for more in-depth analysis on IMSI catchers
Pell, Stephanie K., and Christopher Soghoian. “Your secret stingray’s no secret anymore: The vanishing government monopoly over cell phone surveillance and its impact on national security and consumer privacy.” Harvard Journal of Law and Technology, Forthcoming (2014).
Ooi, Joseph. “IMSI Catchers and Mobile Security.” (2015).
Owsley, Brian L. “Triggerfish, Stingrays, and Fourth Amendment Fishing Expeditions.” Hastings LJ 66 (2014): 183.
Hardman, Heath. “Brave New Wrold of Cell-Site Simulators, The.” Alb. Gov’t L. Rev. 8 (2015): 1.
Pell, Stephanie K., and Christopher Soghoian. “A Lot More than a Pen Register, and Less than a Wiretap: What the Stingray Teaches Us About How Congress Should Approach the Reform of Law Enforcement Surveillance Authorities.” (2014).
Marijuana grower’s 20-year prison sentence prompts judge to question drug laws’ mandatory minimums.
An article in the Buffalo News may have triggered some humanity in a Judge’s mind. It goes on to read.
Joseph Tigano III is going to prison for growing marijuana – and he’s going for a long time. Too long in the eyes of the federal judge who sentenced him.
The Cattaraugus County man, convicted of operating a marijuana farm with more than 1,000 plants, found himself Monday in the middle of the national drug sentencing debate.
Sentenced to a mandatory minimum of 20 years in prison, Tigano is one of those defendants whom reform advocates point to when making the case for more lenient drug penalties.
“I feel it is much greater than necessary,” U.S. District Judge Elizabeth A. Wolford said of the mandatory 20-year sentence, “but I do not have a choice.”
Speaking from the bench, Wolford made it clear that she would have preferred sentencing Tigano to less time in prison and suggested at one point that his single firearms conviction was more worrisome than any of his four drug convictions.
The judge’s comments came at a time when members of Congress, both Democrats and Republicans, are weighing recommended reforms to mandatory minimum drug penalties.
Years in the making, the push for reform is coming from lawyers and judges who think that too many nonviolent drug offenders are going to prison, and for far too long. They also contend that half of the federal prison population is serving time for drug crimes.
Now 51, Tigano was found guilty by a jury in May of manufacturing and distributing marijuana, maintaining a premise for the manufacture of marijuana, conspiracy to manufacture and possess marijuana and being a previously convicted felon in possession of firearms.
Under the law, he could have faced up to life in prison.
“There’s clearly a need for you to be punished,” Wolford told Tigano. “But I do not believe you present a danger to the community, by any means.”
Arrested in 2008 at his home in the Village of Cattaraugus, Tigano and his father, Joseph Sr., now 77, were accused of running a multimillion-dollar marijuana business.
Despite the size and scope of his business, Tigano was portrayed Monday as a defendant facing an excessive amount of time behind bars.
Cheryl Meyers Buth, Tigano’s defense lawyer, praised Wolford for challenging the mandatory minimum sentences that exist in so many drug laws and suggested that her client is simply the latest defendant to face an unfair punishment.
“I think Judge Wolford quite bravely went on the record to give her opinion that although she does not have the discretion to impose a sentence under the mandatory minimum, she thought a sentence about half as severe would have been more reasonable,” Meyers Buth said.
” Lieutenant, this lawyer is a pain in the ass, I can’t stand him, I really hate him”
This was my client’s observation of the prosecutor after exiting the conference room she and I had been in for over an hour discussing and negotiating a possible resolution of his 2 count felony, 1 misdemeanor case.
These were the words my client told me he heard coming out of the prosecutor’s mouth as she stood in the hallway asking, begging the officer in charge to approve of or sign off on the demands I had made during our negotiations.
In the moments before this conversation took place I had made it clear to the prosecutor what I thought of the case against my client.
As it goes in many criminal cases the facts of what actually transpired were in dispute.
The criminal case involving under cover and vice officers, no video, audio or even written recordings are made during the investigation.
These type of “typical” investigations result in cases that revolve around the credibility of the officers. When a prosecutor has a police witness who will assert a fact in a case it is considered the gospel. It is believed that if the officer testified to that fact, independent of any counter facts or versions that differ, it will be believed.
Often the prosecutor in these situations will say during Pre-trial discussions sometime with the officer sitting in the same room, ” counsel are you saying the officer isn’t being honest?
It is these scenarios that we are grateful that we have jury trials so that peers within the community can decide who is telling the truth. But getting the prosecutor to believe the version of the facts that are told by the defendant and disregard the police officer version never happens. This case was a case filled with complete adverse and disputed facts.
Prior to the court proceedings we had done an extensive independent investigation and had uncovered witnesses that observed or were aware of the events alleged in the police reports. I realized these unknowns to the police witness observations were in conflict with the gospel of the police officer witness.
These scenarios usually lead to trials.
These scenarios are why we have trials.
These scenarios never result in the prosecutor abandoning their police officer witness and taking the side of the defendants version of the facts.
Prosecutors never agree with defense attorneys that their police officers versions are in error or untrue.
My strategy was let the prosecutor know that she was going to have to accept my clients version or we would be going to trial.
The prosecutor was obviously unaware that her conversation and advocacy to do what I wanted on the phone was within earshot of my client. During these moments I remained in the conference room and while I was aware she was calling the officer in charge I had no idea and could not hear what her she was actually saying to the officer in charge.
Shortly thereafter the prosecutor came back into the room to explain that they had capitulated and agreed to dismiss all felony charges in exchange for a no contest plea to an innocuous misdemeanor. As I was relaying this information to my client he explained what he had overheard the prosecutor saying about me to the officer in charge.
Michael, I was wondering what was going on in the conference room because when the prosecutor came out of the room and got on the phone she keep telling the person she was talking to how much she hated you and what a pain in the ass you were.
But wait it, the observations in the theatre of so called justice gets even better.
After we secured the charge reduction, dismissal of all felonies and misdemeanors and a no contest plea to the innocuous misdemeanor we still needed the pursued the judge to a sentence that also included everything that we wanted or that was acceptable.
It was late in the morning and most of the cases had cleared out and been resolved. The court room had become empty when me and my client entered the Court with my intentions to discuss sentencing with the Judge.
As it goes the judge invited me ( the prosecutor had waived her presence for these discussions) into her chambers which were immediately behind the Judges Bench. and unbeknownst to me the Judges Chambers also are within “yelling” earshot of anyone who was or remained in the Courtroom.
This scenario and positioning I am describing was also observed by client who also watched me enter the Court room and then leave with the Judge into her adjoining chambers.
While I would like to describe what took place over the next 10 minutes with the Judge in her chambers as a healthy academic debate about current morals and virtues what my client heard was loud voices and yelling.
Of course my client couldn’t see or hear the softer spoken words that the judge and I agreed upon or the friendly handshake she and I had after our academic ” discussion” about morality.
Which is why when I exited the Judges chambers to return to my clients side I could tell he was scared out of his mind.
What happened in there…? my client asked.
I said the judge and I had a healthy debate and she is going do what we want at sentencing.
Really, said my client, because from where I was sitting it sounded like the judge hated you. I smiled and said she is going to do what we want for sentencing.
We left the court room, and went outside into the parking lot and walked together to our cars. As the morning sun was turning to midday my client turned to me thanking me for the outcome and reflected upon his observations.
Michael, everyone in that building seemed to hate your guts. I heard the prosecutor saying how much she disliked you and then it sounded like the Judge was going to lock you up. Despite that he said we got everything that we wanted and I couldn’t be happier.
I realized at this time the perspective by which he had observed the events from his day in Court.
Everyone hated his lawyer, me. Yelling and disdain are the emotions and reactions that he had observed. He described his emotions as total fear when he heard prosecutor talk ill of me and the judge screaming at me from her chambers.
Yet as we stood in the parking lot and his case was resolved he explained his joy and how happy he was with the way things turned out.
There is a joke somewhere that begins with lawyers have thick skin or when can you tell a lawyer is offended … I am not sure what the punch line is but I do know that my client’s reflection on the events of the day and how the hatred and disdain for me brought about the favorable resolution of his case.
I was emotionally devoid of any care of concern of who liked me or hated me.
Being a lawyer is not a popularity contest. It is a commitment to get the best results possible for my client.
Lawyers strategize and the negotiation process can be a disaster if a good strategy is not employed for the process. Sometime the discussions are friendly sometimes they are not. But this experience may be the first where the disdain for me and my involvement in the case was the catalyst to our favorable resolution.
I could be wrong but I really don’t think that the prosecutor hates me, instead she knows that if we are going to litigate the case I am going to make her life miserable by litigating, advocating and fighting the case till the end.
This is not hate in my eyes but respect. Likewise much of the yelling from the judge’s chambers actually was my voice as I encouraged the Judge to see things my way and not her silencing me or yelling over me.
In other words the loud academic debate was meaningful and needed to take place.
On the other hand maybe they do all hate me and maybe my skin is thick, and if that is the case then let their hatred be revered.
Detroit News Opinion Page 12:09 a.m. EDT August 25, 2015
A letter by Michael Komorn was featured in the Detroit News regarding medical marijuana and children with autism.
In the United States, and in Michigan, autism is growing. In fact, it is growing at such an alarming rate that it has just recently been identified as a significant public health issue, due to statistics provided by the Center for Disease Control’s Autism and Developmental Disabilities Monitoring Network, a nationwide federal program that tracks autism rates around the country.
Estimates show that autism rates have risen in every report since tracking began in 2002, from 1 in 150 in 2002 to 1 in 68 in 2010. There is not a cure, however, new studies show, autism can be treated.
Some 800 pages of research along with 75 peer review articles on cannabis as a viable option for the treatment of autism were recently gathered by Dr. Christian Bogner, a prominent pediatrician currently in practice with one of Metro Detroit’s largest health systems, and presented to LARA, the Michigan Department of Licensing and Regulatory Affairs.
This data is part of a new, thoroughly researched petition to add autism to the list of conditions, which can be treated with medical marijuana. On July 31 in Lansing, the Michigan Medical Marijuana Review Panel voted yes to recommending medical cannabis as a legal, permissible treatment for all autistic patients. This would include pediatric and juvenile patients under the age of 18 with approval from two physicians. That recommendation is currently being considered by David Zimmer, director of LARA, a Gov. Rick Snyder appointee. The fate of thousands of autistic children now rests in his hands.
It has been a long and difficult road. Initially, and despite what can only be described as overwhelming evidence, LARA, tasked with addressing petitions for new conditions, initially refused to hold a hearing or even consider the petition. As a result, attorneys Tim Knowlton and myself, the Michigan Medical Marijuana Association, and Cannabis Patients United, sued LARA in Ingham County Court. It was only after nearly a year of litigation and foot dragging that LARA ceded its position. Attorney General Bill Schuette’s office “defended” LARA’s position by delaying for months, only yielding after the petitioner filed her brief with the court, days before oral arguments. Meanwhile, parents are treating their autistic children, typically orally in tandem with olive oil or other edible sources.
Today, we are at a crossroads. A pivotal moment in history.
All too often the issues regarding medical marijuana are politicized. What is at issue here is the right and desire of parents to protect and treat their children, without fear of breaking the law. What would each of us do for our children if similarly afflicted? In particular when there is medicine available that has already proven effective in treating epilepsy and autism? Our families should have choices. Michigan’s parents and their children should have hope.
