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Police relied on the pen register order to use a “Hailstorm” cell site simulator (a newer version of the Stingray that can track 4G/LTE phones).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 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.
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.
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).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.
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 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.