MD: Court order to access def’s location from murder victim’s cell phone by cell site simulator was in good faith

The use of a cell site simulator to find defendant who was suspected of having taken his alleged murder victim’s cell phone was done in objective good faith because officers relied on an order to initiate the tracking. [Since Maryland recognizes traditional “standing” analysis, why didn’t they just say there is no reasonable expectation of privacy in tracking a stolen cell phone?] State v. Copes, 2017 Md. LEXIS 478 (July 28, 2017). First paragraph is a summary by the court; the rest is from the opinion:

Police officers applied for court authorization to use a cell site simulator and other techniques to locate a missing cell phone associated with a murder victim in the hope that the phone would lead them to the murderer. They obtained a court order, based in part on the procedure required for obtaining court authorization for a pen register under the Maryland Pen Register Statute, Maryland Code, Courts & Judicial Proceedings Article, §10-4B-01 et seq. Using the cell site simulator, the police succeeded in locating the cell phone, together with Respondent Robert L. Copes, Jr., and evidence linking him to the victim and the murder. The Circuit Court later concluded that the use of the cell site simulator violated the Fourth Amendment and suppressed the evidence. The Court of Appeals assumed, for the sake of argument, that use of a cell site simulator by law enforcement officers is a search for purposes of the Fourth Amendment. The Court concluded that, even if the court order under the Pen Register Statute fell short of a search warrant, the officers engaged in “objectively reasonable law enforcement activity” in obtaining the order and using the cell site simulator to locate the cell phone. Under the good faith exception to the exclusionary rule, the evidence would not be suppressed.

. . .

Advances in personal technology, like the cell phone, empower individual users but may also threaten personal privacy. When police make use of the features of that technology to solve crime, courts and lawyers sometimes struggle to devise ground rules that respect constitutional privacy protections. This case involves an example of the law’s effort to keep apace.

Detectives investigating the gruesome murder of a young homeless woman in Baltimore City determined that a cell phone associated with her — but not found with her body — was still in active use. Hoping to find the phone — and the murderer — they applied to the Circuit Court for authorization to use, among other techniques, a “cellular tracking device” to locate the phone. They presented a sworn application to the Circuit Court that summarized the investigation of the murder, information concerning the missing phone, and their purpose in attempting to find it, as well as a draft order that tracked the application in pertinent respects. They did so under an established procedure — approved by the State’s Attorney and the Police Department’s lawyer — that had been adapted from a statute for police use of devices that record the numbers of incoming and outgoing calls concerning a target phone. The court issued the order, finding that “probable cause exists” upon the basis of the application.

The detectives then employed a device known as a cell site simulator — basically, an undercover cell tower — which led them to the apartment of Respondent Robert L. Copes, where they found the phone, Mr. Copes, and evidence linking him to the victim and the murder.

After charges were filed, Mr. Copes asked the Circuit Court to suppress the evidence obtained as a result of the use of the cell site simulator. Despite finding that the detectives acted “in good faith” and had done “fine work,” the Circuit Court felt constrained by a recent decision of the Court of Special Appeals. It granted the motion on the ground that the use of the cell site simulator to locate the phone was a search for purposes of the Fourth Amendment and that the court order did not function as a search warrant.

We hold that the evidence need not be suppressed. Regardless of whether use of a cell site simulator is a search for purposes of the Fourth Amendment or whether the court order authorizing its use fell short of a search warrant, the detectives in this case acted in “objectively reasonable good faith.”