ACLU, EFF Join Fight To Suppress Evidence Illegally Obtained With A Cell Tower Spoofer

from the Baltimore-PD-has-a-lifetime-of-explaining-to-do dept

Baltimore law enforcement officers love their cell tower spoofers. They have deployed them over 4,300 times since 2007, in most cases without a warrant. Instead, the Baltimore PD uses pen register orders, which both hide the technology being used and allow the department to abuse a lower suspicion standard.

Little by little, the devices behind the bogus pen register orders are being exposed. The PD delayed the inevitable by withdrawing evidence. When confronted by judges and defense lawyers, it pointed to the non-disclosure agreement it had signed with the FBI.

Now, it's watching another case fall apart. The PD is currently appealing a judge's suppression of evidence obtained through warrantless use of a Stingray device. At the center of this case is an attempted murder charge. The PD isn't quite as willing to let this one go, as it has done with others in the past. But, at this point, it's losing badly.

Police relied on the pen register order to use a “Hailstorm” cell site simulator (a newer version of the Stingray that can track 4G/LTE phones). They tracked Andrews’s phone to a Baltimore home, and found him inside.

As the prosecution of Mr. Andrews moved forward, police doubled down on their secrecy. They repeatedly failed to comply with their obligation to disclose to the defense attorney that they had used the technology, only admitting it under pressure as the scheduled trial date approached. In June, after holding a hearing where Baltimore Police finally were forced to testify about using the Hailstorm, a judge concluded that the cops had intentionally withheld the information from the defense, in violation of their legal disclosure obligations.

In August, another judge granted Andrews’s motion to suppress evidence obtained as a result of the Hailstorm use. The judge concluded that use of the Hailstorm without a warrant violated the Fourth Amendment, and that the government’s decision to hide their intent to use the device when applying for the pen register order meant that their use of the Hailstorm was never authorized by a judge.
As the ACLU notes, this is quite possibly the first time a judge has granted a motion to suppress evidence obtained by warrantless use of a Stingray device (this one an upgraded version known as a Hailstorm). The Baltimore PD must really want to take Kerron Andrews down because it hasn't offered to dismiss charges and is actively fighting the suppression order.

The ACLU's amicus brief (written in conjunction with the EFF) details the misleading (and unconstitutional) use of pen register orders to obtain more data (and in a more intrusive manner) than would normally be gathered through old school trap-and-trace methods.
Traditionally, courts recognized a pen register as a device operated by the phone company that records the numbers dialed by a telephone. Smith v. Maryland, 442 U.S. 735, 736 & n.1 (1979). Although pen registers now may also “record[]” other “routing, addressing, or signaling information,” Md. Code Ann., Cts. & Jud. Proc. § 10-4B- 01(c)(1), the government here sought a pen register order to authorize use of a “Pen Register . . . and Cellular Tracking Device,” (R.54).

Maryland’s pen register statute makes no provision for, or even mention of, a “cellular tracking device.” Without a description from the government of what it meant by “cellular tracking device,” it would have been near-impossible for the issuing judge to know that the government was in fact referring to a Hailstorm. Even more unlikely would have been the court’s independent understanding that, unlike a true pen register, a Hailstorm does not merely “record[],” but broadcasts signals that penetrate the walls of every private home in its vicinity and force responses from bystanders’ phones.
The documents provided by the ACLU also include the oral transcript of August's suppression hearing. There are a few gems to be gleaned from this earlier record, like the previous judge's determination that the detective who participated in "willful and egregious discovery violations" was no longer a credible state witness and should not be permitted to testify.

The other highlight is the court shutting down the "good faith exception," basically telling the state's lawyer that willfully misleading a judge by applying for a pen register order (to obscure the use of the Hailstorm) is a bad faith act, and any further actions (not just evidence) are tainted by this point of origin.
[T]he Court's not persuaded nor do I think that it's applicable in this particular case because it is a violation of the Fourth Amendment that led them there [where the defendant was arrested]. So in terms of good faith, the good faith is the bad faith in illegally essentially locating him or locating him through using the Hailstorm in violation of his Fourth Amendment rights. And so it's, to me I think the good faith exception doesn't really apply here.
What's being asked of the government isn't much: just a modicum of respect for citizens' rights and civil liberties. If you're going to use a cell tower spoofer, get a warrant. And then turn that information over to defendants, so the playing field is somewhat level when they go to trial. But the government continues to treat these requests as obnoxious impositions (at best) and a threat to law enforcement efficiency.

Filed Under: cell tower, spoofer
Companies: aclue, eff


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  • icon
    That One Guy (profile), 8 Jan 2016 @ 3:48am

    Laws are for the little people, and habits are hard to break

    What's being asked of the government isn't much: just a modicum of respect for citizens' rights and civil liberties.

    From the outside such doesn't look like much, no, but when you consider that they've been doing this sort of thing for years, and have managed to lie and/or mislead judges into allowing them to do so, the very idea that they have limits on their actions has got to be near unthinkable to them.

    They're so used to being able to do anything they want that the very idea of having to respect the rights of the public is completely alien to them, and it's hardly a surprise then that they would resist such a change as a result.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 8 Jan 2016 @ 4:03am

      Re: Laws are for the little people, and habits are hard to break

      It's almost like they are now counting on the fact that this suspect may have murdered someone to carry the day for them. Which is one of those really messed up "now it's on your head" sort of threats. Good work, law enforcement. One would imagine that if this were truly important to you, you would have just done your job legally.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 8 Jan 2016 @ 4:23am

        Re: Re: Laws are for the little people, and habits are hard to break

        True enough, their inability to be honest to the judge and act within the scope of the law is very likely to lead to them losing his case, or at least having a large chunk of the evidence they had suppressed, leading to significantly lower charges.

        Unfortunately, odds are they won't see it that way at all, and will instead continue with the 'ends justify the means' mindset, blaming the judge or the laws for the loss, rather than their own actions.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Jan 2016 @ 8:07am

          Re: Re: Re: Laws are for the little people, and habits are hard to break

          Honestly, these "officers" should be jailed for compempt of court. Because they, wilfully and with malice, ignored the law of the land.

          But that isn't likely to happen.

          reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 8 Jan 2016 @ 12:58pm

      Re: Laws are for the little people, and habits are hard to break

      Any constitutional violation that could result in a damages award in civil court or a suppression of evidence in a criminal court is also a criminal act under federal statutes (18 USC 242).

      Laws may be for little people, but any individual is little in comparison to the federal legal system.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 8 Jan 2016 @ 4:10am

    It would be nice if the courts pushed back much harder. Hiding evidence is supposed to be a crime, yet we see time and time again it is hidden.
    They lie to judges, courts, lawyers, and citizens why are they allowed to continue.

    The law is supposed to punish those who violate it evenly, not just blindly accept that 1 side tells nothing but the truth and the other tells nothing but lies.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 8 Jan 2016 @ 4:20am

      Re:

      Personal punishment for those involved would be the best option, but a decent 'consolation prize' at least is for the judge(s) involved to torpedo the case in question whenever they try and use illegally gathered evidence in it.

      Take away the incentive of an easier conviction, with the very real possibility of them losing a case they otherwise could have won, and they're much more likely to act within the law in future cases.

      reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 8 Jan 2016 @ 5:50am

        Re: Re:

        Let that sink: a possible murderer may walk free because they couldn't bother following the goddamn law.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Jan 2016 @ 11:12am

          Re: Re: Re:

          ...a possible murderer may walk free because they couldn't bother following the goddamn law...

          That's already happened a number of times with all sorts of evidence improprieties and other crimes as well.

          Not to mention those cases that get convictions that are overturned on appeal.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Jan 2016 @ 10:20am

        Re: Re:

        ... a decent 'consolation prize' at least is for the judge(s) involved to torpedo the case in question whenever they try and use illegally gathered evidence in it.
        But what's the more likely result of this: that citizens demand and receive a whole new police force, new prosecutors, and new policies, or that citizens get rid of a single judge who's 'soft on crime'?

        reply to this | link to this | view in chronology ]

  • icon
    Adam (profile), 8 Jan 2016 @ 6:40am

    the real problem here is...

    ...when vagueness in a law is used for actions not explicitly permitted then one day lawmakers will begin writing vagueness into the laws on purpose.. oh wait. nm. this is already the case.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 8 Jan 2016 @ 8:20am

    Mike, you don't get the point.

    But the government continues to treat these requests as obnoxious impositions (at best) and a threat to law enforcement efficiency.

    But they most definitely are exactly that. So is the whole Bill of Rights. That's its sole point. If it weren't an obnoxious imposition in the first place and a threat (or rather limit) to law enforcement efficiency, it would not have been necessary.

    The government is perfectly within its rights to view it in this manner, its intended manner. It is not within its rights ignoring or circumventing it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jan 2016 @ 10:30am

      Re: Mike, you don't get the point.

      If it weren't an obnoxious imposition in the first place and a threat (or rather limit) to law enforcement efficiency, it would not have been necessary.
      We are the Law. Lower your expectations and surrender your assets. We will add your rights and autonomy to our scrapheap. Your freedom will adapt to service us. Limitations are futile.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jan 2016 @ 11:39am

      Re: Mike gets the point, you don't.

      So the sole point of the Bill of Rights is to be a threat to law enforcement efficiency?

      That's just effin' ridiculous.

      The point of the Bill of Rights is to prevent law enforcement (i.e., the State) from abusing it's power. And that's an entirely different intent than to cause law enforcement inefficiency (even if it sometimes seems that way to them). We're all supposed to be on the same team here. I refuse to accept a premise where the actual "good of the police" is inherently at opposed to the "good of society" - however much it may seem that way at times due to the actions of certain corrupt actors in the State/law enforcement.

      reply to this | link to this | view in chronology ]

      • identicon
        David, 8 Jan 2016 @ 3:09pm

        Re: Re: Mike gets the point, you don't.

        The Bill of Right explicitly spells out those rights of the citizens the government may not touch. That's not "preventing the State from abusing its power" but rather not granting the state the requisite power in the first place. Less power of course limits efficiency.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Jan 2016 @ 5:30pm

          Re: Re: Re: Mike gets the point, you don't.

          The US government is supposed to broadly represent the public good and not to act as an adversarial force to it. This includes law enforcement.

          The Bill of Rights limits the efficiency of law enforcement in the same way breaks on a car limits its efficiency of smashing into a brick wall.

          reply to this | link to this | view in chronology ]

          • identicon
            David, 9 Jan 2016 @ 3:11am

            Re: Re: Re: Re: Mike gets the point, you don't.

            The US government is supposed to broadly represent the public good and not to act as an adversarial force to it. This includes law enforcement.

            If you believe "is supposed to broadly represent the public good" is a reliable concept, a kingdom is the best form of government.

            The founders of the Republic of the United States of America were not as naive as that. That's why they wrote down the Constitution. How come their descendants are so much more gullible?

            reply to this | link to this | view in chronology ]

  • icon
    Mike Acker (profile), 8 Jan 2016 @ 10:35am

    interfereing with radio

    last i knew interfering with legal radio communications would get you in serious trouble with the FCC

    where is Charlie on this issue anyhow ?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Jan 2016 @ 8:08pm

    "What's being asked of the government isn't much: just a modicum of respect for citizens' rights and civil liberties. If you're going to use a cell tower spoofer, get a warrant. And then turn that information over to defendants, so the playing field is somewhat level when they go to trial."

    +1,000 - I couldn't have said it better myself!

    reply to this | link to this | view in chronology ]

  • icon
    klaus (profile), 14 Jan 2016 @ 3:13am

    Why?

    "...it pointed to the non-disclosure agreement it had signed with the FBI"

    You have to wonder why Harris, the FBI, and the police departments are so utterly loathe to disclose what these devices are capable of. We, the public have always suspected we were under surveillance by authorities, confirmed by Snowden et al. We're not naive or easily shocked. I mean, we’ve lived under a threat of world-destroying weapons for 70 years, and of terrorism for far longer. And it wouldn’t be the first time we’ve been screwed over by governments. So what exactly is the big deal?

    I have a horrible feeling it'll turn out to be something insidious, like phone manufacturers DID put a law enforcement back-door in after all, and they’ve been all over our phones, like lice, for years...

    reply to this | link to this | view in chronology ]


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