The Baltimore Police Department's warrantless use of a stingray did not violate a suspect's Fourth Amendment rights because it is common knowledge that cell phones generate location information, the Maryland attorney general argued in appealing a lower court ruling that suppressed evidence collected through such a device without a warrant.
That lower court ruling, an attorney for the Electronic Frontier Foundation (EFF) said, could represent the first time evidence obtained through the warrantless stingray use had been suppressed.
The case started in 2014, when police obtained an arrest warrant for Kerron Andrews who had been charged with attempted murder and other charges. In an attempt to locate Andrews, police obtained a pen register order but didn't mention the use of a stingray.
The lower court had thrown out the evidence after the judge found the police had hidden the use of the device from the defendant, defense attorney and the judge who had signed for a pen register, Jennifer Lynch, senior staff attorney at the EFF told SCMagazine.com.
The pen register would have allowed police to request cell site location information associated with the phone from the cell provider but would not have sanctioned stingray use, Lynch said.
In a September 2015 appellant brief, sent to SCMagazine.com from the office of the AG , Maryland AG Brian E. Frosh claimed police were allowed to use the stingray because it is common knowledge that cell phones generate location data.
“The whereabouts of a cellular telephone are not 'withdrawn from public view' until it is turned off, or its SIM card removed,” the brief said, adding that anyone who has used a smartphone is aware that the phone broadcasts its position on a map.
Frosh further argued that no statute was in affect to otherwise prohibit the use of the device. And, he noted, an order from a neutral magistrate found probable cause to authorize what was done in the case.
The magistrate was not aware of the stingray use when the order was signed, however, according to court documents.
A September 2015 motion to dismiss, sent to SCMagazine.com from the office of the AG, from the suspect's attorney said the state claimed it didn't possess information requested by the defense that would have disclosed the use of a stingray in the case when it in fact did.
But Lynch said that anytime a stingray is used without a warrant it is a violation of an individual's rights. She said that this case comes as a surprise because several police departments have non-disclosure agreements (NDAs) that prevent them from discussing stingray use even in a court of law.
Baltimore PD has reportedly used stingray devices more than 4,300 times since 2007, although it is unclear how many times the devices were used without a warrant.
UPDATE: On Mar. 2, The Maryland Special Appeals Court issued a one page order upholding the lower court's suppression of evidence related to law enforcement's use of a Stingray device without a warrant.