MD: Stringray/Hailstorm cell phone tracking device a search; nondisclosure agreement unconstitutional

The use of a Stingray/Hailstorm device to track a cell phone is a search under the Fourth Amendment. The Nondisclosure Agreement is essentially unconstitutional because of the state’s argument they don’t have to disclose what they were doing. The court also finds the third party doctrine inapplicable. State v. Andrews, 2016 Md. App. LEXIS 33 (March 30, 2016):

a. Effects of the Nondisclosure Agreement

Before we examine the reasonableness of the State’s intrusion in context, we address the nondisclosure agreement entered into between the State’s Attorney for Baltimore City and the Federal Bureau of Investigation in early August 2011 as a condition of BPD’s purchase of certain “wireless collection equipment/technology manufactured by Harris [Corporation].” The nondisclosure agreement provided, in part:

[T]o ensure that [] wireless collection equipment/technology continues to be available for use by the law enforcement community, the equipment/technology and any information related to its functions, operation, and use shall be protected from potential compromise by precluding disclosure of this information to the public in any manner including b[ut] not limited to: in press release, in court documents, during judicial hearings, or during other public forums or proceedings. Accordingly, the Baltimore City Police Department agrees to the following conditions in connection with its purchase and use of the Harris Corporation equipment/technology:

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5. The Baltimore City Police Department and Office of the State’s Attorney for Baltimore City shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (including its technical/engineering description(s) and capabilities) beyond the evidentiary results obtained through the use of the equipment/technology including, but not limited to, during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State’s case-in-chief, rebuttal, or on appeal, or in testimony in any phase of civil or criminal trial, without the prior written approval of the FBI.
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(Emphasis added). The agreement directs that in the event of a Freedom of Information Act request, or a court order directing disclosure of information regarding Harris Corporation equipment or technology, the FBI must be notified immediately to allow them time to intervene “and potential[ly] compromise.” If necessary “the Office of the State’s Attorney for Baltimore will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to provide, any information concerning the Harris Corporation wireless collection equipment/technology[.]”

We observe that such an extensive prohibition on disclosure of information to the court—from special order and/or warrant application through appellate review—prevents the court from exercising its fundamental duties under the Constitution. To undertake the Fourth Amendment analysis and ascertain “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security,” Terry v. Ohio, 392 U.S. 1, 19 (1968), it is self-evident that the court must understand why and how the search is to be conducted. The reasonableness of a search or seizure depends “‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.'” Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (emphasis added) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). The analytical framework requires analysis of the functionality of the surveillance device and the range of information potentially revealed by its use. A nondisclosure agreement that prevents law enforcement from providing details sufficient to assure the court that a novel method of conducting a search is a reasonable intrusion made in a proper manner and “justified by the circumstances,” obstructs the court’s ability to make the necessary constitutional appraisal. Cf. King, 133 S. Ct. at 1970 (“Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior.”). In West v. State, this Court stated that “to assure that the purpose of the Fourth Amendment is upheld, police officers must provide details within affidavits when attempting to acquire search warrants, even if such information would seem to the police officer of trivial consequence at the time.” 137 Md. App. 314, 331 (2001).

As discussed further in Section III infra, it appears that as a consequence of the nondisclosure agreement, rather than apply for a warrant, prosecutors and police obtained an order under the Maryland pen register statute that failed to provide the necessary information upon which the court could make the constitutional assessments mandated in this case. The BPD certified to the court that pursuant to the order “the information likely to be obtained concerning the aforesaid individual’s location will be obtained by learning the numbers, locations and subscribers of the telephone number(s) being dialed or pulsed from or to the aforesaid telephone …. ” However, the suppression court, having the benefit of Det. Haley’s testimony (reproduced above), learned that the BPD actually employed the Hailstorm device, which is capable of obtaining active real-time location information—far different from a pen register (a device or process that records and decodes dialing, routing, addressing, or signaling information transmitted by an instrument) or track and trace device (a device or process that captures the incoming electronic or other impulses that identify the originating number). …

We perceive the State’s actions in this case to protect the Hailstorm technology, driven by a nondisclosure agreement to which it bound itself, as detrimental to its position and inimical to the constitutional principles we revere.

b. What Constitutes a “Search”—Level of Intrusion and Expectation of Privacy

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From Katz to Kyllo, the Supreme Court has firmly held that use of surveillance technology not in general public use to obtain information about the interior of a home, not otherwise available without trespass, is a “search” under the Fourth Amendment. These decisions resolved to protect an “expectation of privacy that society is prepared to recognize as reasonable.” After Kyllo, however, the question remained whether electronic tracking or surveillance outside the home could constitute a search under the Fourth Amendment.

In United States v. Jones, the Supreme Court reviewed the use of a GPS tracking device affixed to the undercarriage of a vehicle to track the movements of the defendant over a period of 28 days. 132 S. Ct. 945, 948 (2012). The Court unanimously affirmed the United States Court of Appeals for the District of Columbia Circuit’s holding that the electronic location surveillance over a period of 28 days was a search and that admission of evidence obtained by the warrantless use of the GPS device violated the Fourth Amendment. The Court was unable, however, to reach full agreement as to the basis for its decision. See id. at 953 (majority opinion); 954 (Sotomayor, J., concurring); 967 (Alito, J., concurring in the judgment). Justice Scalia’s majority opinion found that a search occurred under the traditional, pre-Katz “trespass” rationale, but acknowledged that “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” Id. at 953 (emphasis in original).

. . .

We determine that cell phone users have an objectively reasonable expectation that their cell phones will not be used as real-time tracking devices through the direct and active interference of law enforcement. We hold, therefore, that the use of a cell site simulator, such as Hailstorm, by the government, requires a search warrant based on probable cause and describing with particularity the object and manner of the search, unless an established exception to the warrant requirement applies.

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c. The Third Party Doctrine

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We agree, once again, with the Graham court and join in the view shared by other courts that, “[t]he fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by ‘choosing’ to carry a cell phone must be rejected.” Graham, 796 F.3d at 355-56 (quoting In re United States for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113, 127 (E.D.N.Y. 2011)). Cell phone users do not actively submit their location information to their service provider.

In the present case, there was no affirmative act like “dialing.” This is made abundantly clear by Det. Haley’s testimony stating that “if they’re on the phone, then they’re already connected to … the [] network[, a]nd we’re not going to be able to pull them off of that until … they hang up the call.” Det. Haley’s testimony reveals that, in the event that an individual is actively using the cell phone to knowingly transmit signals to nearby cell towers, the cell site simulator will not be able to access the phone.

The pin-point location information that led to finding Andrews was obtained directly by law enforcement officers and not through a third-party. It is not the case that Andrews’s cell phone transmitted information to the service provider that was then recorded and shared with law enforcement. Thus, it cannot be said that Andrews “assumed the risk” that the information obtained through the use of the Hailstorm device would be shared by the service provider as in Smith. The function of the Hailstorm device foreclosed that possibility. When asked “how do you get information about where the phone is on the [Hailstorm] machine,” Det. Haley responded: “[W]hen [Hailstorm] captures that identifier that you put into the machine or the equipment, it then tells you … where the signal’s coming from[.]” Under the facts of this case, the ultimate location data relied on by the police was never transmitted to a third party voluntarily by Andrews. Because there was no third-party element to the use of the Hailstorm by the BPD to locate Andrews, Smith is inapposite. We conclude the Third Party Doctrine does not apply in this case.

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