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.