Maryland Appeals Court Issues Pro-Privacy Ruling Rejecting Police’s Warrantless Use of Cell Phone Surveillance Device

An appeals court in Maryland recently issued a decision that many privacy advocates have extolled as a landmark ruling and a great victory for the privacy rights of citizens. The Maryland Court of Special Appeals upheld a lower court’s ruling excluding evidence in a murder case that was obtained through the warrantless use of a “Hailstorm” device, which is a type of cell phone surveillance tool. The opinion expressly stated that people have “an objectively reasonable expectation of privacy in real-time cell phone location information.”

The underlying investigation related to the pursuit of Kerron Andrews, a man who allegedly shot and killed three people in Baltimore in April 2014. The state charged him with three counts of first-degree attempted murder and issued a warrant for his arrest. Police officers were unable to track down Andrews, but they did locate his cell phone number through an informant. This allowed them to use a “Hailstorm” device, which is a type of tracking device sometimes also known as a “StingRay.” These surveillance tools mimic cell phone towers and send out signals that “trick” cell phones into sending their locations and identifying information to the surveillance device.

With the aid of their Hailstorm, officers tracked Andrews to a house on Clifton Avenue in Baltimore, where they arrested him. Officers also found a gun in the cushions of the couch where Andrews had been sitting when they arrived. In Andrews’ subsequent criminal prosecution, his lawyers argued that the police’s use of the tracking device without a warrant violated Andrews’ Fourth Amendment rights and that the court should exclude all of the evidence seized at the Clifton Avenue residence. The trial court agreed with Andrews, throwing out the evidence under the “fruit of the poisonous tree” rule.

The state appealed, but the appeals court agreed with the trial court and Andrews. The decision rejected the argument advanced by the state that people do not have a reasonable expectation of privacy when it comes to their cell phones’ location information. The court pointed out that cell phones have become “a piece of technology so ubiquitous as to be on the person of practically every citizen.” The decision also explained that, in Maryland, a person must demonstrate a subjective expectation of privacy, and that expectation must be reasonable. Andrews met both of these criteria. In reaching this conclusion, the court, citing numerous previous rulings, cast aside arguments that cell phone users volunteer their information and have no reasonable expectation of privacy, simply by electing to turn on their phones.

The court also did not accept the state’s argument that the Hailstorm constituted a valid search for the purpose of triggering the Fourth Amendment’s unreasonable-search-and-seizure protections. The Hailstorm was a device not in general public use that, with its capabilities, revealed “information about the contents of a home, not otherwise discernable without physical intrusion.” This clearly made it a search for the purpose of applying the Fourth Amendment.

When you or a loved one is charged with a crime, there are many pieces that can go into putting on a defense. The defense may involve offering a differing theory of the case, it may involve keeping certain unconstitutionally acquired pieces of evidence out, and it may involve other strategies too. Regardless of what your defense entails, Anthony A. Fatemi has the skills and experience you need for handling your Maryland criminal defense case. Our office has a long track record of helping the accused present a strong defense and protect their rights. Contact us at 301-519-2801 or via our online form.

More blog posts:

Maryland Court Upholds Legality of Vehicle Search During DUI Arrest, Maryland Criminal Lawyer Blog, Aug. 25, 2015

Highest Court in Maryland Denies Suppression of Cell Phone Data, Maryland Criminal Lawyer Blog, Aug. 10, 2015

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