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Legal challenge alleges authorities withheld police use of stingray surveillance

In first of what could be many challenges, attorneys says Baltimore police lied about using stingray

A Baltimore defense attorney has filed the first of what could be hundreds of challenges to cases in which police allegedly withheld that they had used a high-tech phone tracking device to gather evidence.

The attorney, Joshua Insley, had questioned last fall whether the surveillance equipment known as a stingray was used in the case against his client, Shemar Taylor, who was accused of stealing a cellphone.

Prosecutors and police at the time denied that investigators had used a stingray, but on the witness stand a detective refused to answer questions about what technology they did use. The judge threatened to hold the detective in contempt when he cited a confidentiality agreement with the federal government and refused to answer the judge's questions.

Since then, there have been a number of disclosures about how police use the technology. Insley pointed to the release of a police log of cases in which a stingray was used, which he says proves one was used in Taylor's case.

"It's a road map of how they committed systemic discovery violations," Insley said. "These are major, egregious violations of the rules and the law."

Deputy Public Defender Natalie Finegar said her office also is in the process of filing challenges, concentrating on open cases first.

The Baltimore state's attorney's office said it wants to work with defense attorneys to review the circumstances under which stingrays were used on a "case-by-case" basis but has yet to see a list of cases where the attorneys believe the device was used.

Tammy Brown, a spokeswoman for the office, said prosecutors maintain they were not informed of the stingray's use in Taylor's case and many others, and that they believe such information should be disclosed.

The technology — a suitcase-sized device — can sweep up basic cellphone data from a neighborhood by essentially tricking phones in the area to believe that it's a cell tower, allowing it to identify unique subscriber numbers. The data is then transmitted to the police, helping them determine the location of a phone without the user even making a call or sending a text message.

Even as federal law enforcement officials promote the technology as a vital tool to catch fugitives and kidnapping suspects, privacy groups have raised alarms about the secrecy surrounding its use and the collection of cellphone information of innocent bystanders who happen to be nearby while a stingray is in use.

Baltimore has been on the front lines of the debate. The stingray's use nationwide had been largely secret until a series of legal challenges beginning last year, including in Taylor's case.

In April, a Baltimore police detective revealed on the stand that police had used the device thousands of times in recent years while following instructions from the FBI to withhold information about it from prosecutors and judges.

The Baltimore Sun obtained a copy of the nondisclosure agreement signed in July 2011 by then-State's Attorney Gregg L. Bernstein and then-police Commissioner Frederick H. Bealefeld.

Brown, the spokeswoman for State's Attorney Marilyn J. Mosby, said the new administration does not believe it is bound by the agreement and is not honoring it.

Insley said he was tipped off to the possibility a stingray had been used in his client's case when, in a co-defendant's case in juvenile court, the state's attorney's office wrote that it was "unable to disclose the requested discovery because the Department of Justice prohibits the access and disclosure of these items."

Insley, believing a stingray had been used and not disclosed, filed a motion to dismiss.

Assistant State's Attorney Patrick Seidel said he consulted with officers who worked on the case. Detective John L. Haley, a member of the unit that uses the stingray, denied it was used in the Taylor investigation, Seidel said. Instead, Haley said police had used "real-time GPS cellular device tracking," and Seidel asked for Insley's motion to be dismissed.

But in court, Insley pressed Haley about the technology, and the detective cited the nondisclosure agreement with the FBI as a reason he couldn't provide information.

"You don't have a nondisclosure agreement with the court," Judge Barry G. Williams responded, threatening to hold Haley in contempt if he did not answer. Seidel asked for a break, conferred with supervisor Kevin Wiggins, who has since been appointed a District Court judge, and decided to drop the phone evidence altogether.

Taylor, 17, eventually pleaded guilty, receiving a 15-year sentence with all but time served suspended, and was placed on five years' probation.

This summer, the Police Department released the log of cases in which officers used a stingray.

"This was clearly a deliberate and willful misrepresentation to the court to conceal the use of extrajudicial clandestine surveillance by the Baltimore City Police Department," Insley wrote in this motion. He believes police and prosecutors broke a number of rules by denying using a stingray. "Despite repeated attempts by counsel to obtain the disclosure of evidence ... the Office of the State's Attorney intentionally misrepresented to counsel the nature of the evidence."

Insley's motion would reopen the case for a new trial — allowing him to attack police over the allegation but also potentially exposing his client to a harsher penalty.

Legal experts say such challenges could hinge on how police used the device and what judges knew.

Baltimore police have said they obtain court orders before using the device or after the fact in "exigent" circumstances. Critics have questioned whether authorities appropriately conveyed to judges what technology they were using and how in obtaining such orders.

In a separate challenge earlier this year in a murder case, Circuit Judge Timothy Doory said the defendant couldn't complain about police using the device to find a stolen phone without a judge's order.

This week, the Justice Department issued new guidelines to federal agencies that instruct them to get a search warrant before using the technology. While the new policy requires a warrant in most cases, it includes exceptions for emergencies such as an immediate national security threat and unspecified "exceptional circumstances." The warrant applications must describe how the technology will be used.

In addition, authorities will be required to delete data that's been collected once they have the information they need, and federal agencies are expected to provide training to employees.

The policy does not require local police to follow the lead of federal agencies, but Nate Cardozo, a staff attorney with the privacy group Electronic Frontier Foundation, said state authorities will have a more difficult time arguing that a warrant shouldn't be required.

"We think that given the power of cell-site simulators and the sort of information that they can collect — not just from the target but from every innocent cellphone user in the area — a warrant based on probable cause is required by the Fourth Amendment," Cardozo said.

A Baltimore police spokesman said he could not immediately comment on any new procedures for the stingray.

The Associated Press contributed to this article.

jfenton@baltsun.com

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