Paul Michaels walked up to the Wilton Manors townhouse of his 68-year-old buddy Larry Ellison, pulled a key from his pocket, turned the lock, and walked in. Amid broken dishes in the small kitchen, he found his genial, gray-haired friend dead on the floor, his face blue and his neck streaked with obscene red strangulation marks.
About a week later, on March 16, 2009, Broward Sheriff's Office deputies charged 27-year-old drifter Gabriel Nock with the murder. Hours before Ellison's death, witnesses had seen the pair leaving the beach together, and other evidence seemed to seal the deal. Cops found Nock by tracing his cell phone.
But now the murder charges are at risk.
The reason: Officers didn't get a warrant to track the phone. And in a similar case last month, the U.S. Supreme Court ruled authorities were wrong to track a Washington, D.C. suspect via GPS without a judge's permission. That ruling has put in doubt many arrests like that of Nock. Indeed, Florida is a national mecca for this sort of tracking. Not only are South Florida police forces among the national leaders in using this technology, but also a recent WikiLeaks data dump turned up that a company in Melbourne, Florida, is one of the largest U.S. producers of the tracking technology.
"The case should be over in months, not years," Michaels says. "These challenges just delay justice. It's frustrating."
Authorities often use satellite-based GPS devices pinned to a bumper or under a hood to track a suspect within inches. They rarely ask judges for search warrants because the devices are attached in public places and they don't need to enter cars or suspects' personal space.
That practice has been challenged by civil rights lawyers several times in the past decade, most prominently in the case of Antoine Jones, a Washington, D.C. club owner suspected of cocaine trafficking whom local cops had tracked for more than a month to build a case.
Jones was convicted in 2007 and sentenced to life in prison. He later challenged his conviction — arguing that probable cause is needed to follow suspects remotely — and this past January 23, the Supreme Court tossed his conviction by a unanimous vote, declaring that "the government's installation of a GPS device on a target's vehicle... [is] a 'search.'"
Though the U.S. v. Jones decision didn't explicitly say cops need warrants for GPS tracking, most agencies now urge their officers to seek a judge's approval before planting the devices.
A key question remains unanswered: What about cell phones? They require a fundamentally different kind of tracking technology that police rarely discuss, in part because they fear giving criminals an edge. "We don't want [suspects] to know the who, how, and what so they don't have the upper hand on us," Miami-Dade Police Department spokesman Det. Alvaro Zabaleta says. In court, cops often evoke the Fifth Amendment in declining to talk about the issue.
But it's clear MDPD tracks suspects through their phones almost as frequently as any department in the nation. A recent report by the Wall Street Journal shows that Miami-Dade cops tracked 320 phones in the past three years, which tied the department for number two with Phoenix among the 20 major forces the paper investigated. (Los Angeles is number one. BSO did not respond to New Times' request for similar numbers.)
How exactly can Miami-Dade cops find your phone? They won't say, but WikiLeaks blew open the secret technology in a little-read report six weeks ago. Documents show a Melbourne-based company called the Harris Corp. sells tracking equipment to forces worldwide. Between 2006 and 2008, the MDPD paid at least $300,000 for two machines called the StingRay and the KingFish. The expense was discreetly hidden in the Law Enforcement Trust Fund — a kitty of cash mostly seized from criminal operations that has little oversight.
Zabaleta declined to confirm or deny the authenticity of WikiLeaks' documents.
Harris, the largest private employer in Brevard County, has nearly 6,500 employees and a boatload of federal contracts, mostly for space-based technology used in shuttle flights out of nearby Cape Canaveral. A Harris spokeswoman declined to comment about the company's lesser-known cell-spying products.
Privacy advocates say that such machines — which intercept cell signals and then use towers to find the phone's location — are ripe for abuse without court oversight. In 2008, for instance, Minnesota police used similar equipment to track and arrest eight protesters at the Republican National Convention.
"It's still not clear where the law draws the line involving tracking cell phones and other mobile devices," says Alan Butler, a fellow at the nonprofit Electronic Privacy Information Center in Washington, D.C. "But the majority of the Supreme Court clearly has strong views about the privacy concerns that come with this kind of tracking."
In the meantime, defense attorneys in Miami and Broward are already scrambling to use U.S. v. Jones to their advantage. One of them is Dohn Williams, a public defender in Fort Lauderdale who represents several accused murderers apprehended using cell-phone technology, including Gabriel Nock, the accused killer of Wilton Manors' Larry Ellison.
According to friends and public records, Ellison had lived in Wilton Manors since the late '90s and loved the tight-knit, small-town atmosphere of the gay community there. Michaels, a 53-year-old hotel employee, met Ellison, who sported a dapper gray mustache, shortly after he arrived. The pair liked going to dinner at Tropics, a local gay piano bar and buffet joint.
They were supposed to have dinner there the night Ellison was murdered. Michaels became nervous when his friend didn't show up — the 68-year-old Chicago transplant had never been this late for their usual Sunday-night meal. So Michaels walked the two blocks to Ellison's townhouse while thinking back to Ellison's last phone call, a few hours earlier, when his friend had sounded rushed.
Maybe he had met someone? Michaels didn't want to interrupt, but something felt wrong. When he found his friend dead in the kitchen, his instinct was validated.
Police quickly linked Nock to the murder through Ellison's stolen credit cards. Without getting a warrant, they tracked Nock's cell phone. The suspected killer, they quickly learned, was already in police custody and his phone was in a property room in South Beach, where he had been caught illegally hawking coconuts. They arrested him on murder charges hours later.
There's little doubt police nabbed the right man. Ellison was known for risque dalliances with younger men, and Nock is a bearded, curly-haired Delaware native 40 years his junior.
But Williams, the public defender, now argues that tracking Nock to South Beach without a warrant was wrong — no matter how certain police were that he was the killer. A BSO spokeswoman declined to comment about the case, but police will likely argue that the "imminent danger" Nock posed should have allowed cops to bypass the courts. No hearing date on Williams's challenge has been set.
Dohn Williams is at the forefront of challenging cell-phone tracking in South Florida. He has filed two other challenges, including a recent motion challenging the arrest of Andre Delancy, a 25-year-old Bahamian charged with helping two other men hide from police after they shot two BSO deputies during a traffic stop; one of the deputies, Brian Tephford, died in the shooting. Williams contends Delancy's phone was illegally tracked to a hotel.
Lawyers representing a former client of Williams' have also filed a similar motion in a case against Justin Donald, a 27-year-old from Fort Lauderdale arrested in July 2009 after he stole a gun and a wallet from a BSO colonel's car.
"The laws have not kept up with the technology," Williams contends. "Police should not be able to see you and track you remotely without a warrant. The privacy issue is what concerns me the most."
For Michaels, the legal wrangling opens fresh the emotional wound of finding his friend dead on the floor. Ellison's brothers and nephews, who live in Chicago, won't be able to move past his murder until Nock is convicted and sentenced.
"There are so many loopholes in a lot of the laws today that allow anybody to go free," Michaels says, taking a break from his shift at the front desk of a Fort Lauderdale hotel. "We just want justice for Larry."
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