Privacy Defeats Hailstorm

The Maryland Court of Special Appeals has held that the state may not use cell phones as a tracking device without a warrant or governing exception

This case presents a Fourth Amendment issue of first impression in this State: whether a cell phone—a piece of technology so ubiquitous as to be on the person of practically every citizen—may be transformed into a real-time tracking device by the government without a warrant.

On the evening of May 5, 2014, the Baltimore City Police Department (BPD) used an active cell site simulator, without a warrant, to locate Appellee Kerron Andrews who was wanted on charges of attempted murder. The cell site simulator, known under the brand name “Hailstorm,” forced Andrews’s cell phone into transmitting signals that allowed the police to track it to a precise location inside a residence located at 5032 Clifton Avenue in Baltimore City. The officers found Andrews sitting on the couch in the living room and arrested him pursuant to a valid arrest warrant. The cell phone was in his pants pocket. After obtaining a warrant to search the residence, the police found a gun in the cushions of the couch.

In the Circuit Court for Baltimore City, Andrews successfully argued that the warrantless use of the Hailstorm device was an unreasonable search under the Fourth Amendment of the United States Constitution. The court suppressed all evidence obtained by the police from the residence as fruit of the poisonous tree. The State, pursuant to Maryland Code (1973, 2013 Repl. Vol., 2015 Supp.), Courts and Judicial Proceedings Article (“CJP”), § 12-302(c)(4), now appeals the court’s decision to suppress that evidence.

The court

We conclude that people have a reasonable expectation that their cell phones will
not be used as real-time tracking devices by law enforcement, and—recognizing that the Fourth Amendment protects people and not simply areas—that people have an objectively reasonable expectation of privacy in real-time cell phone location information. Thus, we hold that the use of a cell site simulator requires a valid search warrant, or an order satisfying the constitutional requisites of a warrant, unless an established exception to the warrant requirement applies.

We hold that BPD’s use of Hailstorm was not supported by a warrant or an order
requiring a showing of probable cause and reasonable limitations on the scope and manner of the search. Once the constitutionally tainted information, obtained through the use of Hailstorm, was excised from the subsequently issued search warrant for 5032 Clifton Avenue, what remained was insufficient to establish probable cause for a search of that residence. Because the antecedent Fourth Amendment violation by police provided the only information relied upon to establish probable cause in their warrant application, those same officers cannot find shelter in the good faith exception, and the evidence seized in that search withers as fruit of the poisoned tree. We affirm.

(Mike Frisch)