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Public defender's office to review cases involving stingray technology

The Baltimore public defender's office said it plans to review nearly 2,000 cases in which police used a controversial cellphone surveillance tool without defense attorneys' knowledge, and decide whether to challenge them.

Baltimore Deputy Public Defender Natalie Finegar said Friday that her office would revisit all cases in which the tracking device known as a stingray was used, prioritizing those in which defendants are still incarcerated.

The charges range from larceny to homicide, and the public defender's office expects to ask judges to toss out a number of criminal convictions.

"This is a very serious discovery violation," Finegar said. "It really affects the integrity of the outcomes of these cases. The fact that it wasn't disclosed could affect the outcome."

The stingray works by mimicking a cellphone tower and tricking all phones within a range of up to a mile to connect with it. Police use the technology to track stolen phones and find people.

But privacy advocates nationwide have questioned the secrecy surrounding stingray use and whether there is proper oversight. Some advocates welcomed the news that stingray cases would get a second look.

"I'm hopeful that, as the public learns more about stingrays, we'll start to see more defense attorneys and judges challenging their use in court," Jennifer Lynch, a senior staff attorney with the digital privacy watchdog group Electronic Frontier Foundation, said in an email.

"Police officers should not be allowed to use stingrays without first getting a warrant based on probable cause and without severe limitations on how the devices can be used and for how long. But it's hard to enforce this if officers are using them in secret," Lynch added.

The Baltimore Sun reported this spring that the Police Department has used the cellphone tracking device thousands of times in recent years but consented to a nondisclosure agreement with the FBI that forbids them to tell the public or even judges and lawmakers about the device.

Baltimore police have defended their use of the stingray, saying they obtain court orders before undertaking surveillance using them, though judges have not been aware of what they were authorizing. Officials also have said that the technology does not allow police to record calls, read texts or emails, or store any information.

Defense attorneys who previously learned of stingray use in their cases have raised concerns in court that police withheld how they learned of a suspect's location from the defense and judge. They have argued that such nondisclosure is deceitful and can make it difficult to form a proper defense.

But some cautioned that reviewing past cases in which the technology was used won't necessarily change their outcome.

"One thing that is important to remember is that these cases aren't going to be overturned just because police used a stingray and did not disclose it," defense attorney C. Justin Brown said Friday. "The defendant's ability to attack these cases would in large part depend on how material to the case the use of the stingray [was] … and it might also depend on whether there was any type of approval from a judge."

"Most defense attorneys are going to look back at the cases they've had in the past," Brown said.

He added that defense attorneys must be vigilant to see when this technology is used.

Finegar said it's too early to say how these cases might be affected — whether they would be overturned or retried. She said her office would be in touch with the Baltimore state's attorney's office to help identify additional cases after an investigation by USA Today identified hundreds of court cases using a police surveillance log.

"Our hope is that we can try and work with [the public defender's office] and determine what we can do going forward," said Tammy Brown, a spokeswoman for the state's attorney's office.

Brown said prosecutors would not review all past cases. She said doing so wouldn't be realistic, noting that some cases might have relied on stingray technology in a limited way. Instead, prosecutors will examine the circumstances on a "case-by-case basis," she said.

Brown said her office has also requested a copy of the court order police take to judges when seeking permission to use the technology to make sure it is detailed enough.

The Baltimore Police Department did not respond to questions Friday about its disclosure policies.

Defense attorney Andrew Alperstein said a "systematic review needs to happen" in stingray cases because the state's attorney's office might have secured a conviction without proper disclosure.

"It's a national problem," Alperstein said, noting the issue was a hot topic at a recent meeting of the National Association of Criminal Defense Lawyers.

Law enforcement agencies around the country have said they were required to sign nondisclosure agreements with the FBI in order to be able to use the device. FBI officials have said that disclosing information about stingrays could undermine the effectiveness of the devices.

In addition to city police, Baltimore, Anne Arundel, Prince George's and Montgomery counties are among the Maryland police agencies that have used the cell site simulator devices.

jkanderson@baltsun.com

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