- The Washington Times - Wednesday, March 2, 2016

In a historic victory for privacy rights advocates, the Maryland Court of Special Appeals upheld a ruling that barred prosecutors from using evidence discovered through the Baltimore Police Department’s use of secret cellphone tracking technology.

The ruling, issued late Wednesday, marks the first time any appellate court in the country has thrown out evidence obtained through warrantless use of the secretive devices, often known by the brand name Stingray.

The brief order, signed by Judge Andrea Leahy, offered no explanation of the reasoning behind the decision but indicated that an opinion would be forthcoming.

The case centers on the Baltimore Police Department’s use of a Hailstorm, a cell-site simulator made by the same company that manufactures Stingray, to pinpoint the location of Kerron Andrews after he was identified as suspect in a 2014 shooting that injured three people during a drug deal gone bad.

Once detectives developed Mr. Andrews as a suspect, they deployed the Hailstorm to track the location of his cellphone and found him sitting on a couch inside an apartment. Underneath the couch cushions, they discovered a gun that police eventually traced to the shooting.

As a result of the ruling, prosecutors would be unable to use the gun as evidence against Mr. Andrews at trial.

The public defender who represented Mr. Andrews said that while the ruling is likely to be challenged, it may force police departments in Maryland to be more forthcoming about their use of cell-site simulator technology.

“This does put the BPD on notice,” said Daniel Kobrin, assistant public defender in the Appellate Division of the Maryland Office of the Public Defender. “I think BPD is going to start disclosing this a lot more because now it’s an question of constitutionality.”

Baltimore Police spokesman Lt. Jarron Jackson declined to comment, citing the ongoing case.

Though the ruling is only binding in Maryland, it is likely to garner attention among lawyers challenging police departments’ use of the devices across the country. Legislation limiting use of real-time location monitoring of electronic devices took effect in Maryland months after Mr. Andrews was arrested.

David Nitkin, a spokesman for the Office of the Attorney General, which argued the case for the state, was unable to immediately comment on the ruling.

In Mr. Andrews’ case, detectives had requested an order from Baltimore City Circuit Judge Barry G. Williams allowing them to use a pen register and a “cellular tracking device” to obtain cell-site information, call details and location data about Mr. Andrews’ cellphone. Detectives did not obtain a warrant to use the Hailstorm.

During arguments before the appeals court, judges appeared skeptical of whether a lower court judge knew he was authorizing police to deploy a Hailstorm when they asked him to sign off on an order typically used to obtain less specific phone location data.

Devices like the Stingray 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 the time since Mr. Andrews was arrested, several states and the federal government have adopted laws regarding use of the tracking systems. In September, the Justice Department issued a memo that makes clear that federal law enforcers are required to obtain search warrants supported by probable cause before using the devices. However, loopholes to the rules — such as in emergencies such as during the pursuit of a fleeing felon or to protect human life — continue to worry privacy advocates.

Two states, Washington and Virginia, have passed laws specifically limiting use of Stingrays without a warrant. At least 11 other states have adopted laws that require a warrant for real-time location tracking information.

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

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