Judge Tosses Evidence In Murder Case Where Suspect Was Located With A Stingray Device

from the because-no-one-ever-gets-a-warrant-until-a-court-decision-forces-them-to dept

This will likely be the most spectacular flame out of the Baltimore Police Department's long history of warrantless Stingray use. The Maryland Special Appeals Court recently found that tracking people's location using Stingrays is a search under the Fourth Amendment, meaning law enforcement will need to obtain warrants before using the devices. The fact that this finding doesn't affect use previous to this decision (and there was a LOT of it) doesn't mean other judges won't arrive at the same conclusion independently.

The Baltimore Sun reports a suspected murder will likely walk away from charges after the suppression of "key evidence" obtained with Stingray.

On Monday, Circuit Judge Yolanda Tanner suppressed evidence found in Robert Copes' apartment "with great reluctance." Investigators said they found the blood of 34-year-old Ina Jenkins in Copes' apartment. Jenkins' burned body was found dumped across the street.

Homicide Detective Bryan Kershaw testified that he had suspected Jenkins' killer lived nearby and sought a court order to trace a phone number she had once used to call a relative. The agency's phone tracking unit traced the phone to the apartment, and Kershaw testified that Copes, 39, let him inside.
Judge Tanner was indeed reluctant to suppress the evidence, but as she noted, without the warrantless use of the Stingray, the Baltimore PD would have had nothing more than a photo and phone number. Because they were able to track the location of the phone, they were able to find Copes. After speaking to Copes at the apparent murder scene, officers obtained a search warrant for the apartment, but nothing for device they had already deployed. Judge Tanner doesn't appear to be happy with the decision, but says it's the only decision she can reach with the evidence at hand.
"I can't play the 'what if' game with the Constitution," she said, lamenting that it protects people from illegal searches even when the defendant is "likely guilty."
Almost as surprising is Judge Tanner's denial of the Baltimore PD's "good faith exception" argument. Courts have excused far more egregious misbehavior in cases with far less "good faith" justification. In this case, there was no existing warrant requirement and Judge Tanner even granted the fact that the officers had acted in good faith under existing policies. However, she felt that was not enough to override the unconstitutionality of the Stingray search.

If nothing else impresses the seriousness of the warrant requirement on the Baltimore PD, this case probably will. No one likes seeing an accused murderer walk away from charges, especially when other evidence obtained with a warrant (but poisoned, thanks to the use of the Stingray to locate the suspect) pointed pretty definitively at Copes as the killer.

Closed prosecutions aren't likely to be challenged -- not with the warrant requirement only recently being established -- but the BPD has to be concerned about its chances with other Stingray-related prosecutions still pending or in progress.

But it does seem prosecutors are interested in having the last word, if not in this case, then with Copes himself. This decision will be appealed and it could very well be overturned, using the same good faith exception Judge Tanner found inadequate to support warrantless Stingray use. Prosecutors have already taken a look at Copes' jacket and found something else they might be able to lock him up for.
As the hearing concluded, prosecutors informed Tanner that police had filed new charges against Copes in connection with a rape that occurred in the 1990s.

Filed Under: 4th amendment, baltimore, robert copes, stingray, warrant


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  • identicon
    Anonymous Coward, 5 May 2016 @ 3:13pm

    A lesson to law enforcement

    Do your job right or criminals get off free and it is no one's fault but your own.

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

    • identicon
      Anonymous Coward, 6 May 2016 @ 5:45am

      Re: A lesson to law enforcement

      Indeed.

      Frankly it would be a good thing long term if the Supreme Court heard a case like this and undid a boatload of convictions where 4th amendment rights were violated.

      That way law enforcement/prosecutors would think twice at doing sketchy things that violate 4th amendment rights, knowing that courts are willing to undo their hard fought for convictions if they violate the 4th amendment.

      Right now the law enforcement/prosecutors clearly lack that fear with the way they so blatantly try to violate such 4th amendment rights.

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

      • identicon
        Rekrul, 6 May 2016 @ 11:13pm

        Re: Re: A lesson to law enforcement

        Frankly it would be a good thing long term if the Supreme Court heard a case like this and undid a boatload of convictions where 4th amendment rights were violated.

        But would they? After all, they did recently rule that under the right conditions, remaining silent can be used as evidence of guilt.

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

        • icon
          John Fenderson (profile), 7 May 2016 @ 9:50am

          Re: Re: Re: A lesson to law enforcement

          This. The supreme court is mostly a political body, so how they will rule on any given case depends a great deal on which way the political winds are blowing.

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

    • identicon
      Wendy Cockcroft, 9 May 2016 @ 6:02am

      Re: A lesson to law enforcement

      The reason they generally skirt around due process is to blame it for their failures when a case crashes and burns. The idea is to get public opinion on their side next time they cut corners in the hope that this time the judge will let it slide. Now repeat after me: due process is not an impediment to justice!

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

    • icon
      btr1701 (profile), 9 May 2016 @ 9:40am

      Re: A lesson to law enforcement

      > Do your job right or criminals get off free and it is no
      > one's fault but your own.

      Did you not read the article? The cops *did* do their job right. They acted properly under the laws as they existed at the time. This court is applying law as it exists today to a search that occurred in the past before the law existed.

      I know this "community" is generally anti-cop as a general rule, but it's absurd to suggest cops should somehow psychically know how the law will change in the future and conform their actions accordingly.

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

      • icon
        Uriel-238 (profile), 9 May 2016 @ 10:36am

        Re: Re: A lesson to law enforcement

        Or...since future law is supposed to apply retroactively to protect innocent civilians (e.g. when we decide that a little private, consensual adult sodomy isn't so bad) maybe the worth of themselves and their peers shouldn't be assessed on getting the bad guy.

        The officers aren't being punished when new law applies to an old case. The state is for having bad law (this notion on the understanding that newer law is better for determining justice than old law -- not an entirely perfect pretense).

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

  • icon
    Mason Wheeler (profile), 5 May 2016 @ 3:34pm

    It is the sense of Congress that nobody is above the law...

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

  • identicon
    Anonymous Coward, 5 May 2016 @ 3:34pm

    "Good faith exemption" How did that argument go?

    "We did everything we could to keep the use of this device secret from the courts and the defense attorneys, by using NDA's and having the US Marshals to come in take any record of their use before a court could force us to turn them over.... because we thought it was legal?"

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

  • identicon
    Anonymous Coward, 5 May 2016 @ 5:16pm

    *flameout
    one word

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

  • icon
    darren chaker (profile), 5 May 2016 @ 11:46pm

    Stingray

    Happy to hear about this case. I have used and like D-Vasive, http://dvasive.com/#homePage an anti-Stingray App, which also controls various Apps from using the Mic and Camera. Although the family of the murder victim has a right to be upset at police, at least the suspect was charged with other horrific crimes so did not truly 'get away'. Some suspects are just hard 2 catch.

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

    • identicon
      corey, 8 May 2016 @ 6:58pm

      Re: Stingray

      @darren chaker:
      You miss the point of the story here and made the same mistake the police made.

      Constitution and bill of rights and associated documents and such says its better to let 100 criminals go than it is to imprison 1 innocent person.

      Which means a person is innocent till proven guilty. No matter how much you and I dislike this person or the actions we "BELIEVE" they did.

      Your mistake as such the police was, the presumption of guilt without trial or due process and thus any action is ok in catching / convicting a person and imprisoning them regardless of faulty procedures and or evidence collection.

      That is why we have strict procedures on stripping a persons rights and classing them as guilty.

      this person innocent because it was not proven he was guilty due to technicality. (to ensure we do not send innocent people to jail or worse)

      Then you automatically presumed he is guilty on other crimes, just because the prosecutor decides they want to charge him of other crimes, which he has "NOT been proven guilty on".(based on this article) Prosecutors have a major conflict of interest regarding prosecution rates and the incentives that go with them.(hint they are willing to throw innocents in jail to boost those ratings) They also did it because they want to save their reputations and job due to their screw-up. Because the prosecutor should have known better than to take it to court, knowing the stingray was not issued under warrant. But they wanted the conviction so bad they tried it anyway.

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

  • icon
    Bergman (profile), 6 May 2016 @ 4:23am

    Basic Common Sense

    If use of a device or method would be illegal for a private citizen to use, then police use will require a warrant.

    After all, there are no warrantless law enforcement exemptions to harassment, stalking, wiretapping, trespassing, burglary, computer hacking or peeping tom laws. Even the warrantless law enforcement exemption to breaking & entry laws requires that there actually be an on-going emergency.

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

  • identicon
    Anonymous Coward, 6 May 2016 @ 7:27am

    The really aggravating thing about these stories is that the police officers were ordered to conceal the stingray use in the paperwork.
    Every single damn one of them knew they were doing something wrong the very moment that instruction was given and they still went along with it. They knew they were doing wrong and they must have known they'd be found out, even if they didn't know the higher-level details about why what they were doing was wrong.
    It's sickening.

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

    • identicon
      I.T. Guy, 6 May 2016 @ 7:51am

      Re:

      They were just "following orders." Guess who else claimed they were "just following orders?"

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

    • identicon
      Anonymous Coward, 6 May 2016 @ 9:29am

      Re:

      This is the part where you remember the stories about how they only hire people who are capable of taking orders with a blunted IQ, and not capable of thinking for themselves. There's a reason why they only hire order takers. Thank you, drive through!

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

    • identicon
      Anonymous Coward, 7 May 2016 @ 11:49am

      Re:

      Every single damn one of them knew they were doing something wrong the very moment that instruction was given...
      That misses a key part of the authoritarian mindset: rules must be followed by everyone except those who enforce those rules. Prosecutors and police understand 'the real world' better than anyone else, and anything they do that might seem to 'violate' the laws they're charged with enforcing is simply a sign that the the letter of the law hasn't caught up with what the enforcers know it should, could, and will be. This is the one paradoxical idea that these absolutist concrete thinkers seem to be able to tolerate.

      Kinda feels like a religion to me, in that The Word of God is absolute and infallible and must be obeyed... but nobody who hears God's Words, even explicitly, really knows what God's Words mean until a few dudes in matching outfits and funny hats interpret them for us. Contradictions and absurdities? Not possible. Just a test of faith, dear children.

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

  • icon
    Hugo S Cunningham (profile), 6 May 2016 @ 9:16am

    A search that solves a murder is ipso facto a reasonable search. (But if the warrant paperwork is defective, the judge, jurors, and appeals judges should be alerted and vigilant to the possibility of a frame-up.)

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

    • icon
      John Fenderson (profile), 6 May 2016 @ 10:26am

      Re:

      "A search that solves a murder is ipso facto a reasonable search."

      Ummm, no. Just no.

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

      • identicon
        Anonymous Coward, 7 May 2016 @ 12:54pm

        Re: Re:

        I might be reading too much into HSC's comment, but after my first WTF reaction I looked at it as a more abstract idea: knowledge of a reality or truth always has value. (Note: preceding statement is a spherical cow... in a vacuum, ignoring friction, and disregarding gravity.) Acting on this knowledge, however, isn't always something that can or should be allowed or tolerated; even acquiring it in the first place can be absolutely wrong and deserving of a harsh punishment.

        Or I coulda just said 'I read the comment as a toothpaste/tube thing', without bothering with all that blather & verbiage.

        Now that I look back, I'm twisting the meaning of 'reasonable' beyond its elastic limit here. Nobody should bother reading this nonsense. I'm still gonna hit Submit, though, because... I dunno... Compulsive behavior? Yeah, I'll go with 'compulsive behavior'.

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

  • icon
    That One Guy (profile), 6 May 2016 @ 9:45am

    For want of a warrant...

    Of course you can be sure that not a single one of those involved among the police will understand why they just got benchslapped, and will instead continue believing that it's all that dirty judge's fault for throwing a wrench in their perfect case. They're cops after all, they enforce (and/or make up on the spot) the rules, they don't have to follow the rules, the very idea is just absurd!

    Do it right or get out, as if you can't take the hour or so required to get a freakin' warrant then clearly you're too incompetent and/or lazy for the job.

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

  • icon
    Uriel-238 (profile), 6 May 2016 @ 12:00pm

    Judge Tanner's career is about to change for the worse.

    Justice Yolanda Tanner's name is going to be one to avoid since she doesn't play ball, and there's going to be a lot of peer pressure to get her to retire or at least change jurisdictions.

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

    • identicon
      corey, 8 May 2016 @ 7:10pm

      Re: Judge Tanner's career is about to change for the worse.

      @uriel-238
      That is your opinion.
      I for one wish there were more judges of her caliber. Interprets the law without bias, one way or other, even when the law goes against her own belief on the subject.

      That shows integrity on this particular case. Of the standards we the people expect of our judges, Of the people who are firm believers of the constitution and bill of rights represent as inalienable rights.

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

      • icon
        Uriel-238 (profile), 8 May 2016 @ 7:54pm

        "That is your opinion"

        Um, that's my prediction. I hope I'm wrong.

        On the other hand, I'm not sure which is better, that we have so few impartial, ethical judges because human beings are generally unscrupulous, or we have so few impartial, ethical judges because they're all pressured by a system that disfavors personal integrity.

        My observation is that we have so few impartial, ethical judges on account of how judges that abide by the bill of rights are news.

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


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