Appeals judges question disclosure of cellphone tracking in Maryland case

ANNAPOLIS | Maryland appeals court judges were skeptical of whether a lower court judge knew he was authorizing police to deploy a secret cellphone tracking system to help find a shooting suspect when police asked him to sign off on an order typically used to obtain less specific phone location data.

A panel of three Maryland Court of Special Appeals judges heard arguments Tuesday in a case closely watched by privacy advocates for its potential to redefine how police use the secret tracking systems — often known by the brand name Stingray, or in this case a different model called Hailstorm.

In the case at issue, the Baltimore Police Department requested from Baltimore City Circuit Judge Barry G. Williams an order allowing them to use a pen register and a “cellular tracking device” to obtain cell-site information, call details and location data about the phone belonging to Kerron Andrews, who was wanted for suspected involvement in a 2014 shooting that injured three people.

“How was Judge Williams supposed to know that the Hailstorm was being used?” Judge Andrea Leahy asked the prosecutor handling the case for the Attorney General’s Office.

Assistant Attorney General Robert Taylor Jr. argued that police were not obligated to list the brand name of the device being used to surveil Mr. Andrews’ phone but that they did disclose the type of trace that was to be used.

“What they were asking for was in the document,” Mr. Taylor said.

Devices like the Stingray and the 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. In Mr. Andrews’ case, officers used the Hailstorm 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.

Before the case went to trial, a lower court judge ruled that 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. Maryland’s attorney general is challenging the ruling.

During Tuesday’s hearing, Judge Raymond Thieme peppered Mr. Taylor with questions about whether there was any sort of limitation on the time period or geographic area that the Hailstorm could be used in the case based on Judge Williams’ order and to what degree use of a Hailstorm is more invasive than the data obtained through pen registers.

Mr. Taylor responded that the data obtained through pen registers is “certainly different” than that obtained through a Hailstorm.

When it came time to question the public defender representing Mr. Andrews, the three-judge panel was curious to hear more about how the devices work, whether cellphone signals can be picked up when a phone is turned off, and if the signals sent by cellphones are simply there for the taking because they are being transmitted to third parties — the cellphone companies themselves.

“Their argument is, ‘This is stuff you give to other people, why can’t you give it to us?” Judge Daniel Friedman said of the attorney general’s argument.

Daniel Kobrin, assistant public defender in the Appellate Division of the Maryland Office of the Public Defender, argued that Hailstorms work differently than cell towers and that they do not intercept a signal already being sent, rather they coax the cellphone into sending a signal.

“It is not catching what is already being sent out to the cell tower,” Mr. Kobrin said.

Judge Leahy asked whether the defense believed there was ever a way that police could put the cellphone tracking technology to use without raising constitutional issues. While he declined to take sides on whether the use was legally sound, Mr. Kobrin noted a case in North Carolina in which the FBI had specifically requested to use cellphone tracking technology and laid out limitations on the geographic use of the device in order meant to minimize the impact of the use on bystanders.

A ruling in the case is due by March 3.