Stingray ruling could challenge hundreds of Baltimore convictions
Stingray ruling could challenge hundreds of Baltimore
convictions
Maryland could appeal to supreme court to reverse ruling
that found police use of device to track cellphones without warrant in
violation of fourth amendment
Stingray ruling was the first by an appeals court to hold
that using cell site simulator technology without warrant violates a person’s
right against illegal mg58lp=search and
seizure.
By Baynard Woods in Baltimore
Tuesday 5 April 2016 14.17 EDT Last modified on Tuesday 5
April 2016 16.13 EDT
A major Maryland court ruling that found police cannot
use cellphones as a “real-time tracking device” without a warrant could call
into question hundreds, if not thousands, of convictions in Baltimore – and set
a precedent for similar privacy cases across the US.
The ruling by Maryland’s second-highest court was the
first by an appeals court to hold that using cell site simulator technology
known as Stingray without a warrant violates an individual’s fourth amendment
protections against illegal search and seizure.
The state has 16 days to appeal against the ruling to the
state’s highest court, and legal observers expect it could reach the US supreme
court. The attorney general’s office would not say whether it would ask the
high court to reverse the ruling, saying it was still evaluating the case.
The technology, which is produced by the Harris
corporation and is widely used by law enforcement and the IRS, imitates a cell
tower, forces a phone to send a signal and traps metadata from phones that can
reveal their location. A USA Today investigation has shown that the technology
has been used in making arrests for everything from kidnapping to petty theft,
but its use has often been obscured in police reports using vague language.
In the Maryland court of special appeals case, Kerron
Andrews was wanted on attempted murder charges. When the police could not
locate him, a detective got his cell number from a confidential informant and
asked a judge for a “PEN register” or “trap and trace order”, a kind of court
order which is not a warrant and doesn’t face the same legal requirements
regarding probable cause. The information he obtained from that allowed the
detective to find the general area of Andrews’ phone. Using the Hailstorm, also
known generally by the name Stingray, the department was able to go to that
area and pinpoint the precise location of the phone inside a specific
residence, which was not his own. They secured Andrews in the location and only
then obtained a search warrant.
At first, the department failed to reveal how it arrived
at his location. But Andrews told his public defender, Deborah Levi, that his
phone was acting funny. “It was Kerron who suspected that they had used it from
the beginning because his phone was going a little crazy,” Levi said.
“When I told my lawyer, she automatically said, ‘They
came to this address? This was not your address. How did they know you were
there?’ So she instantly started to put in motions to find out,” Andrews told
the Guardian. “She was right on it.”
When prosecutors finally disclosed that the department
used Hailstorm to locate Andrews and only later obtained a warrant, Levi moved
to suppress any evidence gained from the use of Hailstorm as a fourth amendment
issue.
“I felt violated,” Andrews, who was released on bail on
Friday, said. “I’m just thankful that it came out. Because a lot of people are
sitting in jail right now that don’t even know that this was used in their
case. They’re away from their families. Mine’s the first of its kind. It’s
still not over yet, but it’s just betrayal.”
An ACLU report shows that 61 agencies in 23 states and
the District of Columbia have purchased Stingray devices, but Levi said that
this is one of the first times that the full scope of this technology has made
it into the public record of a courtroom – partly because of non-disclosure
agreements between the Harris corporation, the FBI and local jurisdictions. In
2011, Baltimore signed such an agreement that prevents the police department or
state’s attorney’s office from even acknowledging use of the technology.
“It’s shocking,” Levi said. “They engage in a third-party
contract to violate people’s constitutional rights.”
In another case last summer, when a detective refused to
reveal details about the use of a Stingray device, which had located a
suspect’s cellphone, as a result of the non-disclosure agreement, Judge Barry
Williams said: “You don’t have a non-disclosure agreement with the court,” and
threatened him with contempt.
“The non-disclosure agreement amounts to obstruction of
justice and not just in one case. It amounts to systemic obstruction of justice
from the state’s attorney’s office,” said Josh Insley, the defense attorney in
that case.
But TJ Smith, a spokesman for the Baltimore police
department, said the department’s policy has shifted: “We discuss the usage of
this equipment openly in court.”
The Baltimore office of the public defender is reviewing
cases it could challenge on the heels of this ruling and is focusing on the
most serious 200, where people have been imprisoned because of discoveries made
as a result of the undisclosed use of Stingray or Hailstorm. “And that’s just
our office,” Levi said, noting that the process of dealing with all of the
cases will be complicated, because Maryland law allows prisoners only one year
to challenge their conviction without relying on a special post-conviction
remedy, such as that recently granted to Adnan Syed, after the podcast Serial
brought new evidence to light.
“This has now definitely been placed on the police and
state’s attorney’s office to go back and identify people who have been wrongly
imprisoned,” Insley said.
The state’s attorney’s office did not respond to requests
for comment by press time.
In its ruling on the Andrews case, the court of special
appeals noted that “such an extensive prohibition on the disclosure of
information to the court … prevents the court from exercising its fundamental
duties under the constitution”.
The use of Hailstorm and Stingray devices, Levi argued,
is different than other cases using cellphone data to determine where a person
was at the time of a crime because, in Stingray cases, the device “operated by
emitting a signal ‘through the wall of a house’ and ‘into the phone’” thus
violating a reasonable expectation of privacy.
“It’s all about the reasonable expectation of privacy and
just because you have a fancy piece of equipment that no one can see, smell or
touch doesn’t mean you get to use it,” Levi said.
The court agreed with her arguments, allowing that “cell
site simulators, such as Hailstorm, can locate and track the movements of a
cellphone and its user across both public and private spaces. Unchecked, the
use of this technology would allow the government to discover the private and
personal habits of every user.” The court agreed with earlier rulings that
“[t]he fiction that the vast majority of the American population consents to
warrantless government access to the records of a significant share of their
movements by choosing to carry a cellphone must be rejected”.
Nevertheless, in part because of the non-disclosure
agreements, this is the first time there has been a ruling by an appeals court
on a Stingray case.
“There has been no written decision on this issue,” Levi
said. “And it’s widespread all across the country and we’re hoping that people
put the stop on this warrantless search.”
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