from the pokes-some-very-nice-holes-in-the-Third-Party-Doctrine-as-well dept
The Baltimore Police Department's warrantless deployment of Stingray devices has come to an end. It may have gotten away with more than 4,300 times so far, but the Maryland Special Appeals Court has declared these devices operate as searches under the Fourth Amendment.
The 74-page opinion -- which belatedly follows its two-page order from nearly a month ago, indicating which side it had taken in this dispute -- dives into every issue implicated by the warrantless use of Stingray devices and examines them alongside a long list of Fourth Amendment-related Supreme Court decisions and the Fourth Circuit Appeals Court's precedent-setting US v. Graham opinion on cell site location info.
The court rejects the government's arguments that location data is something cell phone users "share with the world," along with its Third Party Doctrine assertions. It does this by using the government's own testimony against it. The government maintained the defendant willingly shared location data and other info with the phone company by turning his phone on and using it. But, according to its own statements, the defendant "willingly shared" nothing. In fact, if he had been using his phone to make a call, it's likely the PD would not have been able to locate him.
[DEFENSE COUNSEL]: So, how do you get information about where the phone is on the machine?As the court notes, this is far from the passive acquisition of information the government has portrayed it as.
[DETECTIVE HALEY]: Because when it captures that identifier that you put into the machine or the equipment, it then tells you -- it looks like a clock on the equipment. And it tells you where the signal’s coming from, like 12, 1, 2, 3 o’clock (indicating). And it will give you like a reading. Like if it says 1:00 at like an 80, well, then you know that you’re kind of close to it. But if it says 1:00 at like a 40, then you know that you’re probably within, I don’t know, probably, you know, 20 yards of it.
[DEFENSE COUNSEL]: The person doesn’t have to be using their phone for you to get that information, do they?
[DETECTIVE HALEY]: Actually, if they’re on their phone, then they’re already connected to -- in this case, the Sprint network. And we’re not going to be able to pull them off of that until they’re -- until they hang -- until they hang the call up.
[DEFENSE COUNSEL]: When I am not on my phone, you will drive by my house, and you will get a signal from my phone indicating where I am, right?
[DETECTIVE HALEY]: Correct.
[DEFENSE COUNSEL]: If I am using the phone, you won’t get that signal, right?
[DETECTIVE HALEY]: Correct.
[DEFENSE COUNSEL]: So, the phone cannot be in use. You are searching for my phone as you’re driving through my neighborhood, right?
[DETECTIVE HALEY]: Yes.
[DEFENSE COUNSEL]: And in order to get to my phone, you are sending an electronic signal into my house, right?
[DETECTIVE HALEY]: Yes.
[I]t is clear from Det. Haley’s testimony that “the Hailstorm equipment acts like a cell tower,” but, unlike a cell tower awaiting incoming signals, the Hailstorm is an active device that can send an electronic signal through the wall of a house and “draw the phone to [the] equipment.”The government sought to compare this to warrantless physical surveillance utilizing a beeper for tracking. The court finds nothing comparative in the two cases.
Here, there was no visual surveillance. The mere fact that police could have located Andrews within the residence by following him as he travelled over public thoroughfares does not change the fact that the police did not know where he was, so they could not follow him. Unlike Knotts, the information obtained in this case did reveal at least one critical detail about the residence; i.e., that its contents included Andrews’s cell phone, and therefore, most likely Andrews himself. Further, “pings” from Andrews’s cell phone to the nearest tower were not available “to anyone who wanted to look.”Further dismantling the government's notions about cell phone users being nothing more than convenient generators of a wealth of third-party records, the court notes Andrews performed no "affirmative" action.
In the present case, there was no affirmative act like “dialing.” This is made abundantly clear by Det. Haley’s testimony stating that “if they’re on the phone, then they’re already connected to . . . the  network[, a]nd we’re not going to be able to pull them off of that until . . . they hang up the call.” Det. Haley’s testimony reveals that, in the event that an individual is actively using the cell phone to knowingly transmit signals to nearby cell towers, the cell site simulator will not be able to access the phone.
The pin-point location information that led to finding Andrews was obtained directly by law enforcement officers and not through a third-party. It is not the case that Andrews’s cell phone transmitted information to the service provider that was then recorded and shared with law enforcement. Thus, it cannot be said that Andrews “assumed the risk” that the information obtained through the use of the Hailstorm device would be shared by the service provider as in Smith. The function of the Hailstorm device foreclosed that possibility.Having taken apart the government's Third Party assertions, the court examines the search under the Fourth Amendment and finds the use of Stingray devices to track individuals in real-time by sending signals into residences to be invasive enough to require the use of warrants.
The court also takes time to point out the PD's evasive behavior -- supposedly "justified" by the FBI's standard Stingray-device nondisclosure agreements.
The analytical framework requires analysis of the functionality of the surveillance device and the range of information potentially revealed by its use. A nondisclosure agreement that prevents law enforcement from providing details sufficient to assure the court that a novel method of conducting a search is a reasonable intrusion made in a proper manner and “justified by the circumstances,” obstructs the court’s ability to make the necessary constitutional appraisal.And it wasn't just the magistrate judge signing the pen register order that was cut out of the loop by the NDA. It was the defendant and his representation. In addition to the very belated notification about the technology used to locate the defendant, there was also a Brady violation.
On November 3, 2014, defense counsel filed a supplemental discovery request seeking, inter alia, “[a]ll evidence indicating how Andrews was located at 5032 Clifton Avenue.” The State’s response to that request, dated January 8, 2015, stated, “[a]t this time the State does not possess information related to the method used to locate [Andrews] at 5032 Clifton Avenue.” However, five months later defense counsel received an email from the Assistant State’s Attorney (“ASA”) assigned to the case indicating that it was her understanding that “the ATT used a stingray to locate your client via his cell phone,” but she was waiting for “the paperwork.” The next day, May 7, the ASA also notified defense counsel of exculpatory evidence in the form of a negative photo array that was conducted the previous January.This all adds up to the Baltimore PD having all evidence obtained from its search warrant thrown out as "fruit of the poisonous tree," thanks to its reliance on the use of a Hailstorm IMSI catcher to locate the suspect. The PD will no longer be able to use pen register orders to deploy the technology and won't be allowed to hide its use from the courts or defendants because each warrant application must provide details on the methods and tech to be used to perform the search.
This won't change much for the rest of the nation, as it only affects the state of Maryland, but it does apply the judicial brakes to one of the nation's heaviest users of cell tower spoofers. Thanks to its very thorough examination of the issues at stake in light of several major decisions related to the Fourth Amendment and Third Party Doctrine, it will likely be referenced and cited by defense lawyers around the nation during suppression motions related to Stingray use.