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Sheriff's Use of Cell Phone Spying May Lead to Reopened Criminal Cases

A New York State Supreme Court ruling is requiring the Erie County Sheriff’s Office to turn over documents related to cell phone spying by the office. Barry N. Covert, a noted criminal defense attorney and senior partner at the Buffalo-based law firm Lipsitz Green Scime Cambria, was interviewed by WGRZ about the sheriff’s cell phone spying program and the impact the information’s release may have on dozens of Western New York criminal cases.

Watch the full interview at WGRZ.

Lack of search warrants at issue

According to the ruling, the Sheriff’s Office used Stingray and Kingfish technology to spy on cell phones 47 times between May 2010 and October 2014. Judge Patrick NeMoyer wrote that, based on logs of the technology’s use, most of the time "the cellular tracking was carried out for the purpose of criminal investigation."

Mr. Covert told WGRZ’s 2 on Your Side team that the sheriff likely doesn't want the public to see those logs because they may help prove deputies did not get search warrants before using the invasive machines.

In a separate interview, Erie County Sheriff Tim Howard confirmed to 2 on Your Side that he did not get search warrants but instead got a type of court order called a pen register, which many legal experts believe is not adequate for this type of surveillance.

Ammunition for defense attorneys

Asked if any criminal cases are likely to be reopened as a result, Mr. Covert said, “I would certainly anticipate that. If any of those techniques were used without a warrant, defense attorneys are now going to know that for the first time, and they'll be able to challenge the ability of the prosecution to try to introduce that evidence that was obtained or was obtained as fruit of the poisonous tree based on that initial surveillance that was done without a warrant."

The court’s ruling notes that "depending on the circumstances . . . the probable cause and the warrant requirements of the Fourth Amendment may have to be satisfied before law enforcement agencies may lawfully engage in real-time mobile tracking.”

Mr. Covert believes that's why the FBI wants this information kept secret. "Because they know it's unconstitutional, and they know it's illegal," he said. "Yet they want to continue to use it. They're violating our Fourth Amendment rights if that's indeed the case."

He told 2 on Your Side that defense attorneys who find this technology was used without a warrant against their clients can file an action in federal court claiming their civil rights were violated.

About Barry Covert

A member of Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Group, Mr. Covert focuses New York State and federal criminal trials and appeals; Constitutional law, including First Amendment, Second Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct, scientific fraud, research misconduct, research fraud, plagiarism, and fabrication of evidence; and defense of professional licensing, including for attorneys, doctors, and nurses.

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