- The Washington Times - Tuesday, February 23, 2016

In the first known case to challenge the Metropolitan Police Department’s use of secret cellphone tracking technology, a D.C. man convicted of sexually assaulting two women he met through escort service ads is appealing his 66-year prison sentence on the grounds officers violated his Fourth Amendment rights by using the technology to locate him.

Under nondisclosure agreements with federal law enforcement, local police departments in possession of such technology — known as cell site simulators, or often by the brand name Stingray — have fought to keep secret their use of the equipment.

The Metropolitan Police Department has been no exception. Although the department is known to have had cell site simulators since at least 2003, civil liberties advocates who track law enforcement use of the technology say this case represents the first time that defense attorneys have uncovered the MPD’s use of the technology in a specific case and been able to challenge its use in court.

The case in question focuses on Prince Jones, who in 2014 was found guilty of sexually assaulting and robbing two women he contacted for escort services through Backpage.com. According to court records, Jones stole the women’s belongings, including their cellphones, after forcing them at knifepoint to perform oral sex on him. The trail leading police to Jones started with the cellphone he initially used to contact the women.

Police first retrieved the number used to call the women from their cellphone records and began tracking the whereabouts of that cellphone via data supplied by telephone companies, according to Jones’ appeal, filed this month by attorneys with the D.C. Public Defender Service.

After determining the phone was in the general area of the Minnesota Avenue Metro station in Northeast, police deployed a cell site simulator to pinpoint its exact location. Simulators work by mimicking cell towers to trick cellphones to connect to them, enabling investigators to obtain identifying information about the phones and their precise locations.

Citing “exigent circumstances,” specifically that two women had been attacked and another robbed within a 24-hour period, police did not obtain a warrant for use of the device in the Jones case, according to court records.

Two trucks hauling simulators, including one that court records indicate was driven by a Secret Service agent, drove around the area near the Metro station for about 40 minutes while the technology went to work. The simulator eventually zeroed in on Jones, who officers found sitting in his car with his girlfriend outside the station. After officers stopped Jones, they found in his possession the phone used to contact the women, their stolen cellphones and a folding knife.

Jones’ public defenders raised concern over the use of a cell site simulator during his trial in D.C. Superior Court, asking Judge Jennifer Anderson to suppress the evidence collected from his car that day by police officers because the warrantless, real-time tracking of his movements violated his Fourth Amendment rights.

But Judge Anderson agreed the evidence could be used because police likely would have still found Jones whether they were tracking his phone or one of the victim’s phones.

In the appeal filed last week with the D.C. Court of Appeals, attorneys from the D.C. Public Defender Service representing Jones argued that his conviction should be tossed out on grounds that use of the cell site simulator was a “trespass” into Jones’ phone and that police violated his “reasonable expectations of privacy.”

MPD spokesman Lt. Sean Conboy declined to address questions about the case Tuesday, saying the department was “declining to participate in the story.”

The American Civil Liberties Union and the Electronic Frontier Foundation (EFF), which both have challenged law enforcement use of Stingrays and other cell site simulators, have filed a friend of the court brief in support of Jones’ appeal.

“Because MPD’s policy of concealment has until now prevented judicial consideration of the issues raised in this appeal, and is likely to continue to frustrate review in the future, this Court should rule on the underlying Fourth Amendment issue in this case,” the joint brief states.

A 2014 report by Vice News revealed for the first time that MPD owned cell site simulators and that the department’s ownership of the technology dated back to 2003, when MPD used a grant it received from the Department of Homeland Security to purchase Stingrays. According to the documents cited in the report, however, the technology went unused until 2009, when police officers finally received training on how to employ it.

The police department has fought to keep details about its use of cell site simulators secret, redacting documents it has released about the technology. In Jones’ case, his attorneys were blocked from asking a police sergeant about the brand of cell site simulator that MPD used, according to a transcript from one hearing.

In addition to the Fourth Amendment violations that the ACLU and EFF allege Jones suffered in the case, the groups raised concerns in their brief about how cell site simulators scoop up data from all cellphone users in the area where they are deployed.

As police officers drove around the Minnesota Avenue Metro station with the cell site simulator on, the device worked as a dragnet, potentially capturing the cellphone information from all passers-by, including customers at surrounding shops, residents of a nearby 376-unit apartment complex, job seekers at the city’s nearby Department of Employment Services office and students at the adjacent Friendship Collegiate Academy, the rights groups say.

“In some respects, criminal defendants in these type of cases are the canaries in the coal mine of everyone else’s Fourth Amendment rights,” ACLU staff attorney Nathan Wessler said of the Jones case. “It doesn’t lessen the constitutional violation.”

With the challenge before the D.C. Court of Appeals, the case will be one of the few to go before an appellate court thus far, Mr. Wessler said.

“This could end up being a really important decision. When so few courts have had any opportunity to weigh in, the importance of the first few courts is pretty high,” he said. “They will set the tone that other courts will look to for guidance.”

The first case to address the implications of cell site simulator use before a federal court reached the U.S. Court of Appeals for the 7th Circuit in January. Meanwhile, the Maryland Court of Special Appeals is set to rule on a case challenging the use of a cell site simulator by the Baltimore Police Department within the coming week.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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