Maryland Court Suppresses Evidence Gathered By Warrantless Stingray Use

from the court:-a-pen-register-order-is-not-even-close-to-the-same-thing dept

The Maryland Special Appeals Court isn't buying government lawyers' arguments that warrantless deployment of Stingray devices has no 4th Amendment implications. The government had argued that "everyone knows" phones generate location data when turned on and this information is "shared with the rest of the world" (but most importantly with law enforcement).

The court has yet to release its written opinion, but it did issue a one-page order upholding the lower court's suppression of evidence related to law enforcement's use of a Stingray. This ruling is especially important in Maryland, where Baltimore police have used the devices hundreds of times a year without seeking warrants or notifying judges and defendants about the origins of evidence.

The ruling has the potential to set a strong precedent about warrantless location tracking. “Police should now be on notice,” said Nate Wessler, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Accurately explain your surveillance activities to a judge and get a warrant, or risk your evidence being thrown out.”
As has been noted here, the Baltimore police use pen register orders to deploy Stingrays, allowing it obscure the usage of the devices as well as to avail itself of lower evidentiary demands. This won't be the case going forward. The court has (at least orally) expressed its displeasure with the Baltimore PD's deceptive tactics.
During the oral argument before the appeals court in February, one of the judges called the police’s pen register application a “completely false document,” and “completely disingenuous.”
As The Intercept notes, this is the first time a US court has suppressed evidence gathered with warrantless Stingray deployments. More will probably follow -- not because the Maryland Special Appeals Court decision will affect courts in other states -- but because more and more information on these devices and how law enforcement deploys them is coming to light.

The government tends to rely on the Third Party Doctrine. While courts may consider the connection and data collected by Stingrays to fall under this doctrine, they're far less likely to find law enforcement's secrecy and deception acceptable. On top of that, using a cell tower spoofer for real-time tracking isn't like deploying a pen register at all, even if judges find the lower evidentiary standard acceptable.

Pen register orders historically involved static phones. The location of the suspect was already known. All law enforcement was looking for was data on incoming and outgoing calls from certain numbers. With Stingrays, law enforcement is trying to find a suspect, not whoever that person is calling (even though that information will be gathered as well). And in order to do so, it has to place itself between hundreds or thousands of non-suspects and the receiving parties of their phone calls and messages. This location tracking and collection of non-relevant data needs to be held to a higher standard, and this decision from Maryland may finally be the start of that.

Filed Under: due process, evidence, imsi catcher, maryland, stingray


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  • icon
    Groaker (profile), 9 Mar 2016 @ 4:10am

    Technology

    This is happy news, but rather useless. Technology moves more rapidly than the law, and the divergence is increasing exponentially.

    The only solution is to provide culpability when law enforcement steps over the line. No lawyer in their right mind would believe that an NDA signed with a private company provides a legal basis for committing perjury to a judge.

    Some heavy jail time in genpop would do wonders for these problems, but nothing else will.

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

    • icon
      That One Guy (profile), 9 Mar 2016 @ 4:22am

      Re: Technology

      It's not as good as perjury charges(which can be tricky to have stick) and jail time, but throwing out the evidence is the next best thing.

      If cops know that using a stingray without a warrant(or ideally using one at all) means that any evidence gathered from it is going to be tossed, then they're either going to(in order of preference on their part) engage in evidence laundering to make it seem as thought the evidence came from another source, or not bother with the stingray in the first place.

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

      • identicon
        Anonymous Coward, 9 Mar 2016 @ 4:47am

        Re: Re: Technology

        You may be underestimating the corruption of the Baltimore PD. Not only are these the pigs who beat Freddie Gray to death, but they're the ones who planted a gun on Keith Davis (claiming it was a murder weapon while simultaneously claiming that it had not been fired) (yes really), the ones who were caught on video two weeks ago beating a school student, the ones who arrested Kwame Rose on a litany of trumped-up charges for leading a protest, etc.

        They will simply lie, lie, lie and count on the courts' deference to police to protect them from jail. It's what they do.

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

        • icon
          Groaker (profile), 9 Mar 2016 @ 5:59am

          Re: Re: Re: Technology

          If it was just the Baltimore police, then it would be a solvable problem. But it is a pandemic meme. There was a time when a cop shooting a man in the back, claiming it was an incredible rush, and then posing for pictures high fiving the corpse, would have resulted in a massive outrage. Now it doesn't even make the news cycle. Unfortunately this is not an isolated incident, but rather an exemplar of "cop culture."

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

          • identicon
            Anonymous Coward, 9 Mar 2016 @ 6:53am

            Re: Re: Re: Re: Technology

            You are wrong... the police have been murdering civilians since the beginning.

            Government and corruption is not a new or recent thing. Most people fail to recognize the more people suffer under the weight of their own government more than any other human cause problem, including war!

            There are very damn good reasons why the Founding Father said... eternal vigilance is the price of Liberty. We must wake up each and every day ready to fight government corruption because it is a never ending battle!

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

            • icon
              Groaker (profile), 9 Mar 2016 @ 12:54pm

              Re: Re: Re: Re: Re: Technology

              No, I never said cops weren't murderers from the beginning. I said that shooting people in the back, laughing about it, posing for pictures high fiving the corpse would have been unacceptable -- there is a difference. The cops needed to pretend that things were other than they were.

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

      • icon
        Groaker (profile), 9 Mar 2016 @ 4:49am

        Re: Re: Technology

        That is a very nice ideal. But it has been demonstrated repeatedly not to be effective. And the problems are getting worse, not better.

        Fifty years ago there were labor limits on how many wiretaps could be performed, and what information could be extracted from them. Today every electronic communication is swept up illegally. The head of the FBI prevaricates to Congress and SCOTUS, and brags about it. Refuses to answer questions to a Congressional inquirey committee, and gets away with it.

        Police shoot people in the back, destroy evidence of same, hide other evidence of same, and nothing happens.

        What makes you think that things are going to get better?

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

        • icon
          Ninja (profile), 9 Mar 2016 @ 5:57am

          Re: Re: Re: Technology

          While this is a very cynical way of thinking I do agree we are facing problematic times. But I do think that there are improvements and even if this is a very small win/improvement we are moving towards better times. It's just that humans learn through suffering, not love.

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

          • identicon
            Anonymous Coward, 9 Mar 2016 @ 7:00am

            Re: Re: Re: Re: Technology

            While this is a very cynical way of thinking I do agree we are facing problematic times.

            There is nothing new under the sun, this line reveals a fundamental ignorance that pervades society in general.

            There is always a problem to face and there has never been a time that is non problematic. A great example of how there is always a call that "This years election is the most important election of our time".

            Well guess what! The forges of corruption burn hot and the blacksmiths hammer tirelessly to forge the shackles that bind you down for the sake of political and social expediency... and you all seem to be willing captives!

            Perhaps you have a bit of Stockholm syndrome. You might begin to understand the moment the gaze of a corruption turns its way towards you.

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

      • icon
        nasch (profile), 10 Mar 2016 @ 1:03pm

        Re: Re: Technology

        engage in evidence laundering to make it seem as thought the evidence came from another source

        So does that really improve anything for the public, or just make their job a little more inconvenient?

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

  • icon
    Mason Wheeler (profile), 9 Mar 2016 @ 7:33am

    Shared with the rest of the world?

    I have a wireless phone. It's a very good wireless phone. I bet you have one too. But if you were a block away from me--well within range--I would have no way of knowing just from your phone sharing that information. So no, it's not shared with "the rest of the world" under any reasonable interpretation of the phrase.

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

  • identicon
    Anonymous Coward, 9 Mar 2016 @ 8:04am

    ...No lawyer in their right mind would believe that an NDA signed with a private company provides a legal basis for committing perjury to a judge...

    The NDA itself needs to be legally challenged. It's akin to a non-compete: the court will recognize and enforce if there's a time limit and a distance limit, and both are judged reasonable. No limit(s) or limit judged unreasonable and the courts will declare said non-compete unenforceable. NDAs need to be on the same standing.

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

  • icon
    z! (profile), 9 Mar 2016 @ 8:59am

    I would really like to see a judge say, "So, you used a pen register order...; the only info you're allowed to use is what a -real- pen register would record." (basically, the number dialed.)

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


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