- The Washington Times - Sunday, February 7, 2016

A case with the potential to redefine how police use secret cellphone tracking systems heads to an appeals court this week, where Maryland prosecutors will challenge a ruling that found the use of such a device to hone in on the location of a shooting suspect was a breach of his Fourth Amendment rights.

The case, which goes before the Maryland Court of Special Appeals on Tuesday, represents the first time privacy advocates say a judge has thrown out evidence obtained through use of a cell-site simulator, often known as a Stingray. Maryland’s Office of the Attorney General is challenging the ruling.

While the outcome of the appeals case would be binding only in Maryland, it will have national implications as defendants across the country increasingly uncover usage of the covert tracking systems by police and challenge the legality of it.

“Whatever this court decides, it’s going to be looked to by other courts around the country that are trying to grapple with the protection of the Fourth Amendment as it applies to new police technologies,” said Nathan Freed Wessler, an attorney with the American Civil Liberties Union.

The Maryland case centers on the Baltimore Police Department’s use of a cell-site simulator device called Hailstorm to track down Kerron Andrews, a suspect in a 2014 shooting that injured three people during a drug deal gone bad.

After Mr. Andrews became a suspect, police obtained a court order for a pen register for his cellphone, which allowed them to access his phone log information and locate the general area where the phone was last used. Police then deployed a Hailstorm, a simulator made by the same company that manufactures Stingrays, to pinpoint Mr. Andrews’ exact location.

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Devices like the Stringray and Hailstorm work by mimicking cellphone towers to trick cellphones to connect to them, enabling investigators to obtain identifying information about the phones and their locations. Law enforcement officers often deploy the suitcase-sized devices by hauling them around in vehicles as they drive through neighborhoods looking for a suspect’s phone, scooping up data on the cellphones of any passers-by in the process.

In Mr. Andrews’ case, officers used the Hailstrom to pinpoint his location and found him inside a home sitting on a couch. Under the couch cushions was a gun that police eventually traced to the shooting.

The Baltimore Sun reported in April that police detectives admitted to using cell-site simulator devices more than 4,300 times since 2007. Dozens of police departments around the country have been found to own similar devices, though details about their use are scarce.

The ACLU’s Mr. Wessler said that police often try to hide their use of the devices because, when departments buy them, they must sign nondisclosure agreements with the FBI in which they promise not to disclose details about their use to the public.

Mr. Andrews’ case followed that pattern. Prosecutors initially weren’t forthcoming with the fact that police used the Hailstorm to locate him.

More than a year into the court battle, and after prompting from Mr. Andrews’ defense attorney, prosecutors did disclose use of the Hailstorm. At that point Baltimore Circuit Court Judge Kendra Ausby ruled that the use of the Hailstorm violated Mr. Andrews’ Fourth Amendment rights and barred prosecutors from using any evidence gleaned from the use of the device — including the recovered gun.

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Defending use of the Hailstorm, prosecutors from the attorney general’s office argue that a warrant to use the device is unnecessary. They argue that cellphone owners essentially are volunteering information about their locations to third parties at all times because cellphones regularly connect with nearby towers, providing phone companies with the information.

“Andrews was aware, or should have been aware, that an activated cellphone is constantly emitting a signal giving its location to the outside world,” prosecutors wrote in their latest arguments.

If he wanted to keep his location secret, “Andrews could have simply turned his cellphone off to stop broadcasting its location,” prosecutors wrote.

In September, the Justice Department revised its stance on the use of cell-site simulators, requiring that federal law enforcement obtain a search warrant supported by probable cause before using the devices. However, the policy does not apply to local or state departments and there are exceptions to the new rules, such as during emergencies like the pursuit of a fleeing felon or to protect human life.

The ACLU and the Electronic Frontier Foundation filed friend of the court briefs in support of Mr. Andrews, arguing that even if a warrant were obtained by police allowing use of the Hailstorm, that use of the device in and of itself raises Fourth Amendment concerns because of the large amount of data collected from the cellphones of bystanders in the process.

Mr. Wessler calls the attorney general’s argument that the data is being broadcast to a third party, and therefor accessible to police, an outdated argument that doesn’t consider the ubiquitous use of cell phones in everyday life.

“What that means for people is if a person goes to a psychologist’s office or an NRA rally, or their lover’s home, they are supposed to turn off their phone just in case the government is running around with a phone tracker and can figure out they are there,” Mr. Wessler said. “What they are asking people to do is throw away from their cellphones and pull away from parts of modern society.”

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

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