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Guilty pleas in case involving controversial tracking device

Guilty pleas in stingray case
(Karl Merton Ferron / Baltimore Sun)

Two men pleaded guilty Wednesday in a Maryland murder-for-hire case that was at the heart of a national debate over the use of a secretive cellphone tracking tool known as a "stingray."

The device, which was developed for the military, mimics a cell tower to force phones to connect to it, allowing police to pinpoint the location of a particular phone.

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Civil liberties groups and digital privacy organizations have argued that a stingray collects phone data indiscriminately and contend police are using the devices without proper oversight.

Two U.S. senators revealed last week that the FBI had developed a policy that requires agents in most cases to obtain a search warrant to use the device.

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But in Baltimore and other places, police say, they are prohibited from discussing the technology or even acknowledging its existence.

In one recent case in Baltimore Circuit Court, city prosecutors threw out evidence after a judge threatened to hold a police officer in contempt for refusing to answer questions about the device.

The Maryland murder-for-hire case was unusual because prosecutors acknowledged police use of the technology, prompting a challenge by one of the defense attorneys.

On Wednesday, prosecutors and defense attorneys in U.S. District Court had been expected to argue the admissibility of evidence gathered through use of a stingray. Instead, Derrick Smith, 29, and Robert Harrison, 25, pleaded guilty to participating in a conspiracy to commit a murder-for-hire.

Smith was sentenced to seven years in federal prison. Harrison received four years and nine months. Each term was less than the penalty recommended under federal sentencing guidelines.

Assistant U.S. Attorney James Warwick said concerns about related cases were a factor in the decision to offer the plea deals. He did not elaborate.

The American Civil Liberties Union had filed a brief in support of the defense, arguing that the use of a stingray raises "serious Fourth Amendment concerns" and that authorities misled a judge in obtaining a court order.

David Rocah, a senior staff attorney with the ACLU of Maryland, attended the hearing to gain insight into how Baltimore police use the device. At least one uniformed officer was standing by to testify before the pleas were announced.

Rocah said there would be further challenges to stingray tracking.

"There has been an unprecedented degree of secrecy around this technology nationally, to a degree that is difficult to understand," Rocah said. "I think there is a growing awareness and a growing sensitivity."

Prosecutors said in previous court filings that Smith was a contract killer involved in other murders. They said he accepted an offer from an undercover officer to kill someone for $5,000, which the FBI said is the "going rate" for a contract killing in Baltimore.

He was also to receive two watches in exchange for killing someone known to him as "Black," prosecutors said.

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"That [stuff] ain't really a big deal," he said of the offer, according to his plea agreement.

An undercover officer and an informant gave him a cellphone and continued to interact with him, prosecutors said. They said he was recorded surreptitiously in a Motel 6 in Halethorpe discussing the arrangement and payment, prosecutors said.

According to his plea agreement, Smith said he had "two little goons" who would help him.

The phone eventually ended up in the hands of a person who was unknown to police, prosecutors said in court filings. Police used a stingray device and found it in Harrison's home, they said.

Prosecutors said authorities obtained a court order to use the stingray that clearly laid out what it would be used for.

Harrison's attorney, C. Justin Brown, said the court order was misleading because it is the same type of order used in less-invasive techniques. To use a stingray, he said, police should be required to demonstrate probable cause and obtain a search warrant.

Smith appeared visibly — and at times, audibly — frustrated with the plea. But he could be heard telling one of his lawyers that it was better than facing 20 years in prison.

As U.S. District Judge Catherine Blake walked Smith and Harrison through the plea agreement, FBI Special Agent Eric Nye sat at the prosecution table with his chair turned toward the defendants, locked in a blank stare in their direction.

Smith's attorney, Michael Lawlor, told Blake that the plea agreement was a "reasonable resolution" and that "each side is giving up something here."

Though prosecutors said in court documents that Smith had participated in previous killings, he has not been charged. Warwick said those investigations are in the hands of the Baltimore state's attorney's office.

Outside the courtroom, Harrison's attorney said he was prepared to argue about the cellphone technology before his client pleaded guilty.

"As much as we'd like to see what happens with the issue, the interests of the client have to come first," Brown said.

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