Photo credit: (U.S. Federal Bureau of Investigation)
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
– Amendments IV, V, and VI to the Bill of Rights to the Constitution of the United States of America, 1789.
When is it permissible to take on the behaviours of a criminal, when one is hunting a criminal? This question is often posed to police recruits in training and while it is a court approved tactic when working undercover to investigate ongoing criminal actions, it is always limited to dealings with suspect/s. Agents and officers of the government are always supposed to be scrupulously honest in their dealings with the Courts they encounter, the Judiciary that preside over the Courts, and the legal counsels that argue for their cases. What happens when the government and its attorneys lie and withhold relevant information to the Courts and the Accused, yet the Judges do nothing in response?
So it was in 2008, when the U.S. Federal Bureau of Investigation [FBI] was actively involved in looking for the suspect/s who were busily electronically filing fraudulent tax returns with the Internal Revenue Service and who had defrauded taxpayers to the amount of over $3,000,000.
The suspect/s in the cases fraudulently assumed the identities of others and then falsely filed for income tax refunds in the names of the then-unknowing victims in hundreds of cases, cashing the checks in the name of a pseudonym – ‘Travis Rupert’.
The FBI determined that the fraudulent electronic returns were filed from various computers with no known connections to any other suspect computers and that the tax refund checks were all cashed with the same name [Travis RUPERT], yet the endorsement signatures were wildly different, indicating that more than one person was involved with at least the redemption of the criminal proceeds of the crimes. In interviews with the suspects involved in cashing the checks, all suspects claimed to not know the person who masterminded the crimes, they were simply told how to file the tax filing, to cash the refund check, how to process the cash to prevent detection and forward it (after the minor suspect took his/her cut) to a mail drop address. Both the minor suspects and the FBI referred to the suspect as ‘The Hacker’.
The FBI persuaded one of the ‘Hacker’s’ accomplices to act as a criminal informer and to set up a sting. The accomplice was instructed to send the ‘Hacker’ $68,000 to the mail drop in Palo Alto, California after the money had been washed in kerosene (to avoid detection by dogs), sealed in vacuum bags, placed inside of a gift wrapped stuffed animal that was ultimately addressed to a fictitious child.
When the FBI staked out the mail drop location at a FedEx facility in northern California, they saw a male subject enter the facility early in the morning, claim the package, go out into the parking lot and tear open the package. He then walked to the nearest BART (Bay Area Rapid Transit) station and then managed to elude the FBI surveillance team tasked with following him.
With a partial IP computer address of the suspect, the FBI then turned to a shadowy high technology surveillance tool sold to intelligence agencies, law enforcement, and governments designed to capture cell phone data as it is being transmitted. While sometimes referred to as StingRay, KingFish, LoggerHead or other acronyms, but officially it is known as a IMSI [International Mobile Subscriber Identity] catcher. The device spoofs all cell phones, computer wireless air cards, etc. into thinking that it [the IMSI catcher] is a cell phone tower and it routes all the current calls and data in the vicinity through it. It also decrypts the encrypted data to make it easy to capture/listen to it in real time. It also acts as a pen register – listing all outgoing phone numbers, all incoming phone numbers, the electronic serial numbers [ESN/IMEI] of the phones/cards in use, time/date/location, and other metadata. The calls go through seamlessly and a particular wireless phone or wireless card can be targeted for location.
A ‘mini’ IMSI/IMEI catcher unit made by Septier Communications of Israel.
Once in the probable target area of the suspect in August of 2008, the FBI activated their IMSI device and waited. They targeted a certain apartment with the ‘StingRay’ device in an apartment complex and later watched as a person emerged from the apartment. The FBI surveillance team followed and when the subject realized he was being followed, he ran, but was captured and later identified as Daniel David RIGMAIDEN. He had rented the apartment under an alias and a subsequent search warrant for the apartment revealed he was the sole occupant, had multiple false identities, his computer used to commit the crimes [with incriminating information], over $230,000 dollars in gold coins and US currency, and $100 bills from the FBI informant’s package. He was subsequently indicted with seventy four counts of wire fraud, identity theft, mail fraud, hacking, and conspiracy; all Federal felony charges. He was suspected of filing over 1,800 fictitious tax returns to the IRS. He was indicted for his alleged crimes on 23 June 2008, in the U.S. District Court, in Phoenix, Arizona where the case originated with the arrest and conviction of one of the minor criminal accomplices [United States v. Rigmaiden, No 08-814, 2012 WL 1038817 (D. Ariz. Mar. 28, 2012)].
Five years later, as of this writing in 2014, Daniel RIGMAIDEN sits in a private prison [Correctional Corporation of America – CADC, inmate number – #10966111] under contract to the Federal government in Florence, Arizona indicted for felony crimes, yet not convicted of any crimes.
Daniel RIGMAIDEN is an unusual man and his case goes well beyond the simple avarice for money and stealing it from a lax U.S. Treasury and the taxpayers of the nation. Described by the Federal Department of Justice as a ‘computer geek’ turned criminal. Mr. RIGMAIDEN has single handedly filed over 1,000 motions in his case without the aid of legal counsel. Unlike the specious and often ignorant legal filings by persons claiming self-sovereignty, the under educated in matters legal, and often emotionally disturbed people; Mr. RIGMAIDEN’s filings are educated, to the point, formatted correctly, and offer a cogent and well reasoned defense in support of his “not guilty” pleading. Some of his arguments have been taken up by attorneys of the American Civil Liberties Union [ACLU] and the Electronic Privacy Information Center [EPIC]. His legal pleadings and argumentation has drawn curious attorneys to observe the legal battles over his court motions. Even government attorneys have credited him for being a considerable legal foe.
RIGMAIDEN’s pleadings include requesting all investigatory attempts to locate him. These include information on the ISMI/IEMI system used by the FBI in his case; to include all owner’s manuals, training manuals, manuals of policy, use, and legal opinions regarding the device by the FBI, the Office of Information Policy [OIP}, the Department of Justice [DOJ], and the Executive Office of the U.S. Attorney [EOUSA] – all refused by the respective entities under motions to produce/supoenas duces tecum and under requests by the Freedom of Information Act [FOIA]; the evidence and all the records of the metadata captured by the device in use prior to and during the time of his arrest based solely on the reliability of the StingRay device, also known in pleadings by RIGMAIDEN as a ‘Harris WPG LoggerHead device’. See Rigmaiden, 2010 WL 1039917.
After the surveillance and arrest of RIGMAIDEN, FBI Supervisory Special Agent [SS/A], Bradley S. MORRISON, admitted to destroying the metadata used to locate RIGMAIDEN. He did so under the pretext that the devices may tend to pick up information “from all wireless devices in the immediate area of the FBI device that subscribe to a particular provider … including those of innocent, non-target devices.” Verizon Wireless was the provider that RIGMAIDEN used and there were many other captures of information from non-involved citizens who were using Verizon Wireless services in the area prior to and during the arrest.
The FBI asserted to a Federal Judge that a pen register/trap and trace device was the sole form of electronic interception technology used to identify RIGMAIDEN and the Federal magistrate who signed the order authorizing the Title III interception under 18 U.S.C. §§ 2510-22, authorized its use, but not explicitly the StingRay/LoggerHead device. Any criminal defense attorney with reasonable experience or telephone lineman can confirm that a pen register merely records the incoming and outgoing telephone numbers to/from a suspect’s landline telephone and a trap and trace device can show where a landline telephone’s location is, but these systems are worthless in determining information from a wireless telephone because of the wireless technology itself. The order was sought by Affiant FBI SS/A MORRISON in United States v. Rigmaiden, No. 08-cr-00814 (D. Ariz. Oct. 27, 2011).
It is obvious that the use of cell tower simulators impinges upon the Fourth Amendment Rights of all non-involved persons in a given area whose cell phone information and the content of any calls/data may be inadvertently seized by government agents without a specific court order to do so and subsequent judicial oversight of the information in order to prevent abuses and disclosure of private information. A rough analogy would be that in looking for evidence of a crime that is secreted in an office complex, the police seeking a search warrant must include not only the name and address of the office complex, but the specific office building letter/number and the specific number to the office in which the authorities suspect the evidence is concealed in. The search warrant does not allow for police to traipse through and search every office, even in a ‘good faith’ effort to find evidence of criminality.
In the order by the Judge which overturned the suppression hearing sought by the Defendant, the Judge opined that the StingRay/LoggerHead technology and the methods by which it is employed in collecting the information of possible suspect[s] and the innocent alike is merely a “detail of execution which need not be specified” (Lye/ACLU).
The Judge further noted the FBI’s claim to have deleted the metadata information as soon as the arrest was made and their additional claim to have not examined, reviewed, or data mined any of the non-involved persons’ information seized. The Court refused to sanction the government’s case or impose the ‘Fruits of the Poisonous Tree’ doctrine in this case because the FBI agents “were using a relatively new technology, and they faced a lack of legal precedent” (Lye/ACLU)
It should be noted that the Fourth Amendment does not have an express ‘good faith’ clause for law enforcement [exigent circumstances apart] and a suspected common thief of exceptional skill who is indicted for stealing over $3,000,000 is not an exigent circumstance in any reasoned definition.
(Traditional Pen Register)
It should be noted that the Federal government is actively attempting to prevent disclosure of this interception technology from the public, criminal defense attorneys and defendants [who are entitled to it under Federal Rules of Criminal Proceedings – regarding evidentiary disclosure], and even the Federal Courts themselves.
As EPIC asserts in their FOIA request and subsequent suit against the FBI regarding this case – “In an attempt to avoid disclosure of documents related to this technology, the Government was willing to concede that the “actions it took during the air card locating mission were sufficiently intrusive to constitute a search under the Fourth Amendment if Defendant has a reasonable expectation of privacy.” Rigmaiden, 2010 WL 1039917. However, the Government is not willing to concede that Defendant did have a reasonable expectation of privacy in the location of his laptop aircard (in his apartment).
In the aforementioned paragraph, the AUSA asserts that because RIGMAIDEN used an alias in his criminal impersonation to carry out his crimes, he has no expectation of privacy in his person or his property [the computer and its aircard]. Does a bank robber voluntarily surrender his 4th Amendment rights if he uses a mask in the commission of his crime? Many criminal acts require the obfuscation of the perpetrator’s real identity to commit the crimes. Clearly, this is an absurd assertion on the part of the government attorney.
The ACLU, EPIC, and RIGMAIDEN all assert that the suspect is being denied his Fifth and Sixth Amendment Rights to civil and criminal due process, along with a speedy trial [recall that he was indicted and arrested in 2008, yet has not had his criminal trial and is being held indefinitely in Federal custody as of the date of this writing in 2014] in an apparent effort to coerce his cooperation in this matter. The DOJ and the FBI had refused to fully disclose the StingRay/LoggerHead technology and comply with evidentiary disclosure.
As of August 2013, the FBI and DOJ were ordered by a Federal Judge to disclose the information sought regarding IMSI/IMEI technology and their use of StingRay/LoggerHead devices in this case to RIGMAIDEN, that the government had no reasonable interest in delaying the information and the trial, and to cease delays in proceeding with a trial date.
A recent motion in the Court may indicate that either there is a change of plea or that the case is tentatively scheduled for trial.
While I have no affection for thieves or their cohorts, the loss of $3,000,000 from the U.S. Treasury is not a national emergency, nor is it an infringement upon my Rights or the Rights of all American citizens; however, I do have an inherent interest in the government and its agents and officials in being forthcoming, transparent, and truthful to Judges and the Courts when in the course of their official functions. The Rights of all Americans should be regarded as sacrosanct and held in the highest regard by public officials. When they are not, those very Rights are inclined to be slighted, abused, and ignored for the ‘common good’ of collectivist and expedient government interests.