San Bernardino Sheriff's Department reveals confidential informant

The County claimed a need to protect confidential informants in litigation between the Electronic Frontier Foundation (EFF) and the San Bernardino Superior Court, the San Bernardino County Sheriff's Department, and the District Attorney's Office that rose to the California Supreme Court, but an unsealed search warrant exposes a confidential informant's identity and reveals a domestic violence victim.

The unsealed search warrant was one of nine obtained by the Electronic Frontier Foundation (EFF) from the San Bernardino County District Attorney (SBCDA) and then provided to the IE Voice and Black Voice News.

The San Bernardino Superior Court (SBSC), at the request of the San Bernardino County Sheriff's Department (SBCSD) and District Attorney (the County), claimed before the 4th District Court of Appeal (Appellate Court) that the search warrants and related documents (search warrants) should be sealed indefinitely due to sensitive information about confidential informants and the need to protect them, as well as official information.

Official information is obtained in confidence by a public employee in the course of his or her duties and is not open to the public or officially disclosed.

The EFF's search warrants involve law enforcement using cell-site simulators known as stingray devices, which mimic cell towers and capture data from criminal targets' cell phones as well as all cell phones in range.  More information is available at www.eff.org.

The SBCSD had the most search warrant applications seeking digital property per resident in the state in 2017, and the SBCSD's request for an SBSC to grant and indefinitely seal those warrants piqued EFF's interest.

The EFF argued that Stingray Devices are highly invasive surveillance tools used by police with little oversight or transparency, capturing information on both criminal suspects and innocent people.

Privacy concerns

According to the EFF, these search warrants raise privacy concerns, and the public has the right to know how these devices are used and whether their cell phone data has been swept up in surveillance.

Throughout the litigation, the County unsealed and released nine search warrants to EFF, all of which authorized the use of Stingrays. However, it withheld 80 of the 120 pages of search warrant material, arguing that they should be kept sealed indefinitely.

Search Warrant Exposes Confidential Informant

In examining the published search warrants, the IE Voice and Black Voice News encountered that in one case, Sheriff Deputy Rudy Delgado asked for a warrant to be sealed but did not check the boxes "official information" and/or "informant protection," which are required for sealing. The request for sealing was denied by SBSC Judge Gregory Tavill.

The words "Add additional information to HOBBS the PROBABLE CAUSE" was written on page 7 of the search warrant under SEALING ORDER/SERVICE OF WARRANT.

Hobbs cites a 1994 California Supreme Court decision in which a defendant sought the identity of a confidential informant in order to unseal, quash, and suppress evidence obtained through a search warrant.  Yuba County Superior Court denied the defendant's motion.

The Appellate Court ruled that the defendant was entitled to reasonable access to information in order to challenge the validity of a search warrant.  

The California Supreme Court ruled that the Yuba County Superior Court's review of the warrant and its basis was adequate.

Criminal Ameno Bun was arrested for stabbing his girlfriend several times in the back and on an outstanding felony warrant in the Delgado-related search warrant, which The IE Voice/Black Voice News is releasing.

Despite the fact that the unsealed search warrant was redacted, no redactions occurred on page 6 of 9, and at least five words reveal the victim's name as well as the identity of the confidential informant.

Even if the names of the informant and victim could be redacted, other parts of the affidavit show that the public can learn about law enforcement's investigation and warrant request by using redactions rather than sealing the entire document, according to EFF Attorney Mackey.

"We believe the warrant you mentioned is an example of how that could happen," Mackey said.  "I agree that it begs the question of why the majority of the affidavits had to be fully sealed when this affidavit was fully public."

Before sealing the warrants indefinitely, the test was whether the Superior Court's legal test was valid, according to Mackey, who explained that the Appeals Court found the legal test sufficient.

The IE Voice and Black Voice News are releasing the cell phone numbers contained in these warrants in order to inform the public and inquire whether the targets were ever notified as required by law. (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, and (701) 260-9947 were the cell phone numbers.

The SBCSD requests a 90-day delay in notifying the targets, explaining that doing so would endanger an individual's life or physical safety; result in a flight from prosecution; destroy or tamper with evidence; intimidate potential witnesses; or seriously jeopardize an investigation, delay a trial, or result in an adverse result.

Unless otherwise ordered by the court, notification of the criminal target is required at the time of warrant execution.

Mara Rodriguez, PIO Public Affairs Division, SBCSD, responded, "I can share with you that our policy information on Cell-Site Simulators is available on our public website." In addition, the warrants that were withheld in this case were ordered sealed because they were related to an ongoing case," Rodriguez said.

"With regard to the warrant in question SW18 0850, our Office did not object to the release of the search warrant because there was never a sealing order for the warrant or its material from the Court," Jacqueline Rodriguez, public affairs officer for the San Bernardino County District Attorney's Office, told BVN/ IE Voice.

Electronic Frontier Foundation’s Lawsuit

On October 23, 2018, the EFF filed a lawsuit against San Bernardino County, its sheriff, and its district attorney, requesting that search warrants authorizing the use of the Stingray to be unsealed.  

After obtaining some warrants, EFF dismissed the case and filed a new complaint against the SBSC, the County of San Bernardino, and its district attorney on October 8, 2019.

"When courts authorize law enforcement's use of surveillance technologies to sweep up innocent people's private data, the public's right to access judicial records is critical," the EFF explained.  S.E. Williams, Executive Editor of IE Voice and Black Voice News, and Contributor Gail Fry filed Friend of the Court briefs in support of the EFF's appeal.

The County argued that the search warrants, known as "Hobbs affidavits," should be kept sealed indefinitely because they contained sensitive information about confidential informants and "official information."

The Appellate Court ruled in favor of the County after hearing oral arguments, 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 because the affidavits contain information and facts learned from confidential informants, as well as information about the County's investigations and investigative techniques, a "line-by-line redaction" of the affidavits is "not practicable."

The California Supreme Court

Following the Appellate Court's agreement with the San Bernardino Superior Court's decision, EFF petitioned the California Supreme Court to resolve conflicting Appellate Court opinions and/or de-publish the Appellate Court's opinion.

The EFF argued that the lower court's decision violated the public's basic rights to access warrants, affidavits, and returns under Penal Code Section 1534(a), California Rules of Court 2.550-2.551 regarding record sealing, common law, and the California Constitution, which require courts to favor transparency. The California Supreme Court denied EFF's petition on January 11, 2023.

"EFF is disappointed that the California Supreme Court declined to hear the case," Mackey said. "This will make it more difficult for the public to understand when and how law enforcement uses invasive surveillance technology." "This concludes our case and allows the appellate court's decision to stand, so there is no next step because the case is over."

Law enforcement agencies in 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 are known to use this covert surveillance technology.

Gail Fry from the Black Voice News & IE Voice Contributor

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This article originally appeared in San Bernardino Sheriff’s Department Exposes Confidential Informant