Baltimore PD Hides Its Stingray Usage Under A Pen Register Order; Argues There's Really No Difference Between The Two
from the yeah-but-no-not-even-close dept
Uncharacteristically, the Baltimore PD disclosed its use of a Stingray device to locate a suspect's phone during court proceedings. Even more uncharacteristically, the government is fighting to keep the evidence from being suppressed, rather than opting to protect its means and methods at the expense of collected evidence.
How the evidence was obtained matters, even though the government's lawyers are arguing that it doesn't.
The government said the court order obtained by authorities, called a pen register, covers the technology because it refers to cellular tracking device and GPS location information.The government argues that no Fourth Amendment violations occurred, even if the court order said nothing about the device used to locate the phone. It asserts that everything was legit, and even if it wasn't, it was an honest mistake and it would have just found the suspect and his phone sooner or later -- perhaps even by using the method it actually requested. [pdf link]
But the ACLU argues that the state's statute for such pen register orders "makes no provision for, or even mention of, a 'cellular tracking device' " and is commonly understood to only include the "trapping" of call log information.
"In addition, there is absolutely no indication in the application or the order that the authorization will subject potentially unlimited numbers of innocent third parties to dragnet surveillance, none of whom will ever receive notice that their phones were tracked and that the search will intrude into constitutionally protected spaces," the ACLU wrote.
[T]he Government argues that the search was not in violation of the Fourth Amendment for three reasons: (1) the search was authorized by the February 5, 2014, Order (the “Order”), which was a valid warrant; (2) even if the warrant was deficient, law enforcement acted in good faith reliance on it; and (3) even without a warrant, the evidence obtained would not be subject to exclusion because the inevitable discovery doctrine applies.Wrong, wrong and wrong, according to the defendant's (Robert Harrison) counsel.
The Order was not a valid warrant for at least three reasons. First, the Application in support of the Order was purposefully misleading. The Government crafted the Application as if it were a routine application for a pen register or a trap and trace device, citing the applicable Maryland statutory authorization. It did not mention the term “cell site simulator,” nor did it describe the novel technology in a manner that the judge would understand its intrusiveness on the privacy rights of Harrison or others. Second, although the Government now seeks to treat the Order as a warrant, it failed to comply with the statutory temporal requirements for the execution of warrants, which impacts probable cause. Third, the Order fails the particularity requirement because it specified that it was authorizing a search of only the target phone, but, instead, the cell site simulator searched the phones of infinite third parties in the vicinity. As such, if it was a warrant, it was an illegal general warrant.The "good faith" exception -- the benefit of a doubt the government frequently extends to itself -- is also addressed.
Further, the Government cannot rely on the good faith exception or the inevitable discovery doctrine. The good faith exception cannot apply here because the purported warrant was facially invalid, and the affiant knowingly or recklessly misled the magistrate with material omissions concerning the cell site simulator. The inevitable discovery doctrine likewise does not apply because the Government’s argument is predicated on an alternative plan that is latent with speculation and conjecture, instead of historically verifiable facts.Going beyond this, the government attempts to claim the Pen Register order is no different than an actual search warrant -- something it didn't have in its possession when it used the cell site spoofer to "search" Harrison's premises (as well as anyone else's within range) for the cell phone. The filing points out that the statute under which the order was obtained doesn't provide for the issuance of warrants. Even if the government wanted to treat the order like a warrant, it was missing all sorts of specifics crucial to search warrants -- like the particularity of the search, time limitations and probable cause findings.
Not only that, but by obtaining a Pen Register order rather than a search warrant, the government deliberately hid its methods from the courts. The particulars of the technology being deployed were never presented to the magistrate. All of this adds up to one thing: even if the government wants to pretend the order was a warrant, at the very best, it was in possession of a general warrant -- the sort of thing that the Fourth Amendment is in place to safeguard against.
The government also blew past temporal limits normally found in warrants. In its arguments, it wants to have it both ways -- the leniency of the 60-day window provided for Pen Register orders and the powers granted to those in possession of actual search warrants, which are only good for 15 days after issuance. The deployment of the Stingray didn't occur until 50 days after the Pen Register order was obtained.
Addtionally, the phone sought by the FBI and Baltimore PD was no longer in possession of the sting target by the time it went "searching" for it. Within a day of obtaining the Pen Register order, the phone was answered by an unknown male, who told the informant that the suspect (Smith) would call him back on his personal phone. Further records submitted as evidence note that every call between Smith and informants occurred on personal phones, rather than the phone the government was looking for. As the filing points out, had the government sought a warrant to locate this phone, it would have been unable to provide probable cause findings. As things stood nearly a month after the Pen Register order was obtained, the government didn't know much about who actually had the phone, much less whether the phone was still being used as part of the murder-for-hire plot.
By covering up its use of a Stingray device, the government availed itself of the less stringent standards inherent to Pen Register orders. But when it comes to defending itself against complaints of Fourth Amendment violations, the government attempts to portray the order as indistinguishable from a search warrant -- except for all the stuff it's supposed to do on its end to ensure rights aren't violated.