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Judge threatens detective with contempt for declining to reveal cellphone tracking methods

Judge threatened to hold Baltimore detective in contempt for refusing to discuss cellphone tracking technology

Baltimore prosecutors withdrew key evidence in a robbery case Monday rather than reveal details of the cellphone tracking technology police used to gather it.

The surprise turn in Baltimore Circuit Court came after a defense attorney pressed a city police detective to reveal how officers had tracked his client.

City police Det. John L. Haley, a member of a specialized phone tracking unit, said officers did not use the controversial device known as a stingray. But when pressed on how phones are tracked, he cited what he called a "nondisclosure agreement" with the FBI.

"You don't have a nondisclosure agreement with the court," Baltimore Circuit Judge Barry G. Williams replied. Williams threatened to hold Haley in contempt if he did not respond. Prosecutors decided to withdraw the evidence instead.

The tense exchange during a motion to suppress evidence in the robbery trial of 16-year-old Shemar Taylor was the latest confrontation in a growing campaign by defense attorneys and advocates for civil liberties nationwide to get law enforcement to provide details of their phone tracking technology, and how and when they use it.

Law enforcement officials in Maryland and across the country say they are prohibited from discussing the technology at the direction of the federal government, which has argued that knowledge of the devices would jeopardize investigations.

"Courts are slowly starting to grapple with these issues," said Nathan Freed Wessler, an attorney with the American Civil Liberties Union who is tracking stingray cases. "What we're talking about is basic information about a very commonly used police tool, but because of the extreme secrecy that police have tried to invoke, there are not many court decisions about stingrays."

Defense attorney Joshua Insley still believes that police used a stingray to find Taylor. He cited a letter in which prosecutors said they were prohibited by the Department of Justice from disclosing information about methods used in their investigation.

The portable device was developed for the military to help zero in on cellphones. It mimics a cellphone tower to force nearby phones to connect to it.

Records shows that the Baltimore Police Department purchased a stingray for $133,000 in 2009.

Some critics say the use of such technology might be appropriate, with court approval, to help law enforcement locate a suspect. But in the secrecy surrounding its use, they say, it's not always clear that law enforcement officials have secured the necessary approval, or stayed within their bounds.

They also express concern for the privacy of other cellphones users whose data are caught up in a search.

In the case before the court Monday, two teens are accused of robbing a Papa John's pizza delivery driver at gunpoint in April.

Police say phone records show that the phone that was used to call in the delivery was also used to make and receive hundreds of calls to and from Taylor's phone. Police believe the first phone belonged to Taylor's co-defendant. They say Taylor confessed after he was arrested.

Taylor is being tried as an adult. The other suspect is being tried as a juvenile.

In court Monday, the robbery detective who prepared the warrant to search Taylor's home testified that members of the department's Advanced Technical Team did a "ride-by" — described in court papers as "sophisticated technical equipment" — to determine one of the phones was inside the home. Detective Alan Savage said he did not know what technology or techniques the unit employs.

The defense then called Haley to the stand. He said police can use data from the cellphone companies to locate phones in real time.

Insley asked Haley whether police can ascertain a phone's location "independently," without the help of a phone company. Haley said yes.

When asked how, he balked.

"I wouldn't be able to get into that," Haley said.

Insley tried again later. Haley responded that police can get GPS location data from phone companies.

"Then there's equipment we would use that I'm not going to discuss that would aid us in that investigation," Haley said.

Williams, the judge, instructed Haley to answer the question. Haley invoked the nondisclosure agreement.

"I can't. I'm sorry. I can't," Haley said.

Williams called Insley's question "appropriate," and threatened to hold Haley in contempt if he did not answer.

Haley demurred again, and Assistant State's Attorney Patrick R. Seidel conferred with other prosecutors in court to observe the hearing.

Finally, Seidel said prosecutors would drop all evidence found during the search of the home — including, authorities have said, a .45-caliber handgun and the cellphone. The prosecutor said the state would continue to pursue the charges.

Wessler, of the ACLU, said Williams was right to ignore the nondisclosure agreement with the FBI.

"You can't contract out of constitutional disclosure obligations," Wessler said. "A secret written agreement does not invalidate the Maryland public records law [and] does not invalidate due process requirements of giving information to a criminal defendant."

Attorneys say they have suspected for years that police were employing secret methods to track cellphones. But only recently have they begun to find what they believe are clear examples.

Police and prosecutors in another case ran into a similar problem in September, when they were asked to reveal how a cellphone was tracked.

Sgt. Scott Danielczyk, another member of the Advanced Technical Team, testified in that home invasion case — also before Judge Williams — that police used data from a court order to track a cellphone to the general area of the 1400 block of E. Fayette St.

Danielczyk and three other members of the unit were tasked to "facilitate finding it," he testified, and determined the phone was in the possession of someone on a bus.

Williams asked how Danielczyk concluded the phone was being carried by the suspect.

"Um, we had information that he had the property on him," the officer said.

Williams pressed.

"This kind of goes into Homeland Security issues, your honor," Danielczyk said.

"If it goes into Homeland Security issues, then the phone doesn't come in," Williams said. "I mean, this is simple. You can't just stop someone and not give me a reason."

In that case, too, the phone evidence is no longer in play. Prosecutors are proceeding without it.

jfenton@baltsun.com

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