Stingray Gets Baltimore Murder Tossed

Apr. 29, 2016 (Mimesis Law) — The Fourth Amendment is dying a death by a thousand cuts. It’s a simple constitutional amendment. It prohibits warrantless searches and seizures, which are presumed unconstitutional. But American courts have spent the last two centuries making up countless exceptions to the rule, effectively making it no rule at all.

Except for Baltimore courts. Apparently, they understand the Fourth Amendment, at least for now. Let’s hope the trend catches on.

The recent cases center on a controversial device used by the police called a stingray. Not the fish. The stingray devices were uncovered in 2011 by the Wall Street Journal. Basically a stingray device fakes out cell phones.

A stingray works by mimicking a cellphone tower, getting a phone to connect to it and measuring signals from the phone. It lets the stingray operator “ping,” or send a signal to, a phone and locate it as long as it is powered on, according to documents reviewed by the Journal. The device has various uses, including helping police locate suspects and aiding search-and-rescue teams in finding people lost in remote areas or buried in rubble after an accident.

By itself, a stingray device is not all that terrifying. The government has a bunch of nifty toys the courts let it use to listen in on you, from wiretaps to sneaky confidential informants. The difference with the use of the stingray is its secrecy. And the government’s insistence on maintaining that secrecy.

Stingrays are designed to locate a mobile phone even when it’s not being used to make a call. The Federal Bureau of Investigation considers the devices to be so critical that it has a policy of deleting the data gathered in their use, mainly to keep suspects in the dark about their capabilities, an FBI official told The Wall Street Journal in response to inquiries.

“Deleting the data” sounds an awful lot like “getting rid of evidence.” If a defendant does that, the Department of Justice will chase them all the way to the highest level of the judicial system. But the government has more noble intentions. It can destroy evidence because … it doesn’t want to get caught?

The prosecutor [in an early stingray case], Mr. Battista, told the judge that the government worries that disclosure would make the gear “subject to being defeated or avoided or detected.” 

That is kind of why everyone hides stuff. They don’t want to get caught. In Baltimore, they just got caught. And the consequences are high.

Monday, a Baltimore city judge suppressed critical evidence in a murder case. Why? Because the police used a stingray without a warrant. Apparently, Baltimore police love using these devices, also called cell site simulators, to track and find suspected criminals without a warrant. Monday’s decision was not the first time Maryland courts have said no to the technology.

In a March 30th opinion, the Maryland Court of Special Appeals held the warrantless use of a cell site simulator was unconstitutional.

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. 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.

There are about a million exceptions to the warrant requirement, so it’s unlikely this opinion will completely rob the police of their surveillance state. But it’s a start.

Back to Monday’s ruling. Judge Yolanda Tanner basically killed the prosecutor’s case, despite appearing to have several excuses not to. In order to trace a cell phone that led to the murder suspect, a homicide detective obtained a court order to use the cell site simulator, as opposed to a search warrant. According to the Baltimore Sun, a court order does not require probable cause. The judge didn’t fault the police for acting improperly, but pointed out they acted unconstitutionally.

Tanner said she believed police investigators acted in good faith, following the procedures that had been put in place by the city law department and the state’s attorney’s office.

“It was nonetheless an unconstitutional search,” Tanner said.

The use of a court order instead of a search warrant sounds reasonable if you believe the police were simply following a routine policy from the legal department. Of course, there is more to the story.

Police typically used the device after obtaining court orders that did not explicitly describe the technology, because authorities agreed not to disclose its use. Prosecutors agreed to drop cases when there was a risk that the technology would be revealed.

Such nondisclosure agreements were in place around the country, but the Baltimore pact was one of the first to be revealed. Baltimore police later disclosed that they had used the stingray device thousands of times without disclosing details about how it worked.

The use of a court order is not some innocent, mundane policy decision. It is an intentional act to hide what the police are doing, and how they are doing it. And in the end, who really cares about the stupid Constitution if a murderer gets caught?

Judge Tanner cares. And now the police and prosecutors are going to have to care. The judge rejected the prosecution’s arguments in a rare decision that took the Constitution more seriously than the need to make sure every arrest results in a conviction.

Tanner said it was true that [homicide detective] Kershaw might have eventually found [murder suspect] Copes on his own. “I can’t play the ‘what if’ game with the Constitution,” she said, lamenting that it protects people from illegal searches even when the defendant is “likely guilty.”

Judge Tanner points out exactly why the Fourth Amendment is the most at-risk part of the Bill of Rights. It protects all people from illegal searches. But if an innocent person is searched, no one hears about it. Or if someone does hear about it, they don’t care. Its the searches that reveal crimes that make it to court. Those crimes are what puts the Fourth Amendment to the test.

Its only when incriminating evidence is found, and then tossed out of court, that the Fourth Amendment has any real teeth. That may be hard for some people to stomach. In Baltimore this week, a murderer may have walked free.*

But don’t blame the Fourth Amendment. Blame the police who abused it. They decided to use a procedure intended to keep their secret technology hidden. They probably figured it was no big deal. If they didn’t find anything, who cares? If they did, the judge would find an exception to cover their ass.

Judge Tanner said no, and the Fourth Amendment survives. At least for now.

*At least on the murder, if not on other crimes.