Maryland appellate court: warrant required for 'stingray' phone tracking

A Maryland appeals court has issued a ruling on 'stingray' use in tracking suspects.

In what privacy advocates are hailing as a landmark decision, Maryland's second-highest court has handed down the first appellate opinion in the country affirming that police must obtain a probable cause warrant to track cell phones.

The Maryland Court of Special Appeals issued the opinion in a ruling that rebuked Baltimore Police for failing to disclose that they had used a device called a cell site simulator, often referred to as a "stingray," to locate an attempted murder suspect.

The device mimics a cell phone tower, triggering all cell phones in an area to connect with it and determine where a particular phone is located. The judges said cell phones have become ubiquitous, and in turn can be transformed into real-time tracking devices.

"We conclude that people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement, and — recognizing that the Fourth Amendment protects people and not simply areas — that people have an objectively reasonable expectation of privacy in real-time cell phone location information," the judges wrote.

Dan Kobrin, an attorney with the public defender's office who argued the case before the court, said the impact is "enormous" and "will hopefully curb abuse of this device and bring it out into the sunlight." But he said it was unclear whether the ruling can be applied retroactively.

"The court's opinion is a resounding defense of Fourth Amendment rights in the digital age," added Nathan Freed Wessler, a staff attorney who specializes in technology and privacy with the American Civil Liberties Union. "The court's withering rebuke of secret and warrantless use of invasive cell phone tracking technology shows why it is so important for these kinds of privacy invasions to be subjected to judicial review.

"Other courts will be able to look to this opinion as they address rampant use of cell site simulators by police departments across the country."

The Attorney General's Office, which had argued that phone users voluntarily share their whereabouts and can opt out by turning their phone off, said it is reviewing the opinion and considering whether it will appeal to the state's highest court.

Baltimore became a focal point in 2014 for the growing awareness and debate over stingray technology, which had been in use for years but had been concealed from courts and the public. Defense attorneys began to suspect and challenge the use of the device; in one case, a detective took the stand and refused to discuss the technology, and was nearly held in contempt by a judge.

Then, The Sun published a non-disclosure agreement struck by the FBI with Baltimore Police and the State's Attorney's Office, in which local authorities agreed never to disclose use of a stingray device. Prosecutors agreed to drop cases if they presented a risk that the technology would be revealed.

Such agreements were in place around the country, but the Baltimore pact was one of the first to be revealed. Baltimore Police later disclosed that they had used their stingray device thousands of times without disclosing specifics about how it worked.

The court had strong words about how hiding information about stingray use from courts in deference to the FBI non-disclosure agreement was "inimical to the constitutional principles we revere." The government has maintained that the device was often used

The state had argued that cell phone users have the option of turning off their cell phone if they do not wish to be tracked.

"While cell phones are ubiquitous, they all come with 'off' switches," attorneys for the Maryland Attorney General's Office wrote in their brief to the court. "Because Andrews chose to keep his cell phone on, he was voluntarily sharing the location of his cell phone with third parties."

Police and prosecutors said no personal information or "metadata" was collected using the device.

"We don't have this capability," said Sgt. Tom Bonin of the Maryland State Police, at a legislative hearing last month.

Baltimore Police have also asserted that they cannot store cell phone data, intercept phone calls, search the contents of cell phones, or provide personal identifying information on cell phone owners. But they have said that they are willing to abide by any rules requiring warrants or court orders.

Lt. Michael Fries said police in Baltimore use stingrays more than any other agency "due to the crime rate we have in the city." He said police had a policy to use the device to find every phone taken in a robbery, and said in 2015, police located 167 phones that were either taken or used in a robbery.

Fries gave an example of an instance where the device was particularly useful, describing the kidnapping of a man who was taken to a house in Howard County and brought back to East Baltimore where he was tortured.

"We were able to find this young man in a vacant house, beaten to two steps of his life," Fries said. "He's now living. Without this equipment, without being able to use it, this young would be dead."

The case appears to refer to a 2014 case covered by The Baltimore Sun in which a man was found abducted from downtown Baltimore, and found ziptied and beaten with a bat in a vacant East Baltimore home.

Police wrote in court documents that they had tracked the kidnap victim's vehicle to the 300 block of E. Madison St, but did not say how.

The incident took place just as the controversy over the stingray device was being revealed, and some cases being dropped rather than have the technology disclosed.

According to court records, suspects Willie Jones, Jabbar Mickles and Robert Johnson were charged in the city with attempted first-degree murder, kidnapping, and related charges in Oct. 2014. In January 2015, all charges in the city were dropped by prosecutors.

Rochelle Ritchie, a spokesperson for the State's Attorney's Office, said prosecutors decided to let the case play out in Howard County, and said they were not dropped due to concerns with disclosure of the use of a stingray.

Charges in Howard County related to the attempted kidnapping and the break-in of a home there resulted in a 10-year prison sentence for Mickles, and 18 years for Johnson. Jones received five years for attempted burglary.

jfenton@baltsun.com

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