Cops need warrant before using Stingray devices to track cellphones, Maryland appeals court says
A Maryland appeals court has ruled that police generally need a search warrant to use devices that mimic cellphone towers to track suspects’ cellphones.
The Maryland Court of Special Appeals released its decision (PDF) on Wednesday, report USA Today, the Intercept and the Legal Profession Blog. The decision puts at risk hundreds of criminal convictions in Baltimore and Maryland, “where police have used Stingrays prolifically,” USA Today says.
The U.S. Justice Department announced last September that it will generally require federal law enforcement agencies to get a warrant before using Stingrays.
The Maryland decision was announced about a month ago, though the written opinion wasn’t released until Wednesday. The appeals court ruled in the case of Kerron Andrews, an attempted murder suspect who was located with the help of an advanced Stingray device sold under the “Hailstorm” brand name. Police used the Hailstorm after obtaining a “pen register” order, which requires a lower burden of proof than a search warrant.
The appeals court noted that the court that granted the “pen register” order was unaware of the type of device being used because of a nondisclosure agreement between Baltimore prosecutors and the FBI. Such an extensive ban on disclosure “prevents the court from exercising its fundamental duties under the Constitution,” the appeals court said.
Because police failed to obtain a search warrant, they could not use as evidence the gun they found in the seat cushions of his couch, the appeals court concluded.
“We conclude that people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement, and—recognizing that the Fourth Amendment protects people and not simply areas—that people have an objectively reasonable expectation of privacy in real-time cell phone location information,” the court said.
“Thus, we hold that the use of a cell site simulator requires a valid search warrant, or an order satisfying the constitutional requisites of a warrant, unless an established exception to the warrant requirement applies.”
American Civil Liberties Union lawyer Nathan Wessler told USA Today that the decision “isn’t some kind of get out of jail free card. It might be different case by case.” What is clear from the opinion, he said, “is that this secrecy cannot stand.”
Hat tip to the Marshall Project.
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