When police hide technology use, we all lose

Kerron Andrews was apprehended by Baltimore police on May 5, 2014. Police suspected that he had attempted to murder three people. They asked a judge for a “pen register order” to help them find Mr. Andrews, and the request was granted. Pen registers are old devices for tracking the numbers someone dials into their phone, and these orders now encompass any information your phone company has in its records about you and your phone. The police worked their way to a neighborhood using information from Mr. Andrews’ cell phone company and then to an apartment using a device called a Hailstorm. The Hailstorm pretended to be a cell phone tower, connected to Mr. Andrews’s phone and then pinpointed his location. Mr. Andrews was found sitting next to his cell phone and his gun and was arrested.

Two years later, on March 30, 2016, a three-judge panel of the Court of Special Appeals of Maryland effectively set Mr. Andrews free. The appeals court held that the pen register order cannot authorize use of a Hailstorm under Maryland law and that it was not a warrant under the Fourth Amendment to the U.S. Constitution. Because the police only found Mr. Andrews’ gun through use of the Hailstorm, they lost their best piece of evidence and dismissed the case. Mr. Andrews then sued the police in federal court.

On Wednesday, a federal judge in the U.S. District Court for the District of Maryland decided that the Maryland appeals court got it wrong. The pen register order was a warrant, the police were authorized to use the Hailstorm, the police did not violate the Fourth Amendment’s prohibition on unreasonable searches, and Maryland shouldn’t have lost its evidence. The federal judge chastised the police for lack of candor but found no constitutional violation. If this ruling withstands appeal, it means only that the police will not have to pay Mr. Andrews for the two years he spent in jail before his criminal prosecution was dismissed.

Mr. Andrews’ two cases (his state criminal prosecution and his federal civil action) will be unique. Five months after Mr. Andrews was arrested, a new Maryland law made explicit how and when the police can use Hailstorms or other “cell site simulators.” Thus, the precise question about which these judges disagree — whether a pen register order can or did lawfully authorize use of a Hailstorm — is unlikely to arise again.

But whenever police acquire or develop new technologies to find and arrest people, serious and deep disagreements will arise even among thoughtful, respected judges. This is especially true here in Baltimore. The Sun has reported about the Baltimore City Police Department’s alleged secret use of these devices over the last few years. It hosted an excellent op-ed by an attorney at the public defender’s decrying that secret use. BPD did not issue policy guidance on this technology until months later. Use of these technologies is always controversial, but hiding that use from the public is dangerous. BPD risks setting its criminal suspects free (as with Mr. Andrews), and the community risks serious loss of civil liberties. Even if, at the end of the day, the last or highest court decides that the police did not violate Mr. Andrews’ constitutional rights, BPD came way too close to the line.

It is too easy to ignore cases like these. After all, criminal law is for criminals. But residents of Baltimore know too well the dangers of letting police decide without oversight whom and how to pursue. Police avoided court oversight when they snuck cell site simulators into a pen register order (without ever writing “cell site simulators” in their application). In litigation, everybody lost: Maryland lost its case against Mr. Andrews, and Mr. Andrews — who spent nearly two years in jail without being convicted of a crime — lost his case against the police who put him there. When police skirt past oversight, we all lose.

Joseph Dudek (JDudek@ghsllp.com) is an attorney at Gohn Hankey & Berlage LLP in Baltimore; he focuses on civil litigation and appeals.

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