Leahy, Friedman, Thieme, Raymond G., Jr. (Retired, Specially Assigned) JJ.
"[M]odern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."
Riley v. California, 134 S.Ct. 2473, 2484 (2014).
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 specific questions before us, as framed by the State, are:
1) Did the motions court err in finding that the use of a cellular tracking device to locate Andrews's phone violated the Fourth Amendment?
2) Did the motions court err in finding that Andrews did not have to show standing before challenging the search of the home where he was arrested?
3) Did the motions court err in finding that the search warrant for the home where Andrews was located was invalid?
4) Did the motions court err in excluding the items recovered in this case?
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.
Andrews was positively identified via photographic array as the person who shot three people on April 27, 2014, as they were attempting to purchase drugs on the 4900 block of Stafford Street in Baltimore City. He was charged with attempted first-degree murder and attendant offenses in connection with the shooting, and a warrant for his arrest was issued on May 2, 2014.
Pen Register and Trap & Trace Order
Unable to locate Andrews, Detective Michael Spinnato of the BPD confirmed Andrews's cell phone number through a confidential informant, and then submitted an application in the Circuit Court for Baltimore City for a pen register/trap & trace order for Andrews's cell phone. Specifically, Det. Spinnato requested authorization for the "installation and use of device known as a "Pen Register\Trap & Trace and Cellular Tracking Device to include cell site information, call detail, without geographical limits, which registers telephone numbers dialed or pulsed from or to the telephone(s) having the number(s) . . . ." The application stated that Andrews was aware of the arrest warrant, and that to hide from police
suspects will contact family, girlfriends, and other acquaintances to assist in their day to day covert affairs. Detective Spinnato would like to track/monitor Mr. Andrews'[s] cell phone activity to further the investigation an [sic] assist in Mr. Andrews'[s] apprehension.
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Your Applicant hereby certifies that 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 and that such information is relevant to the ongoing criminal investigation being conducted by the Agency.
On May 5, 2014, Det. Spinnato's application was approved in a signed order stating, in part:
[T]he Court finds that probable cause exists and that the applicant has certified that the information likely to be obtained by the use of the above listed device(s) is relevant to an ongoing criminal investigation, To wit: Attempted Murder.
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(Emphasis in original). And, as requested in the application, the court,
ORDERED, pursuant to Section 10-4B-04 of the Courts and Judicial Proceedings Article . . . [Applicants] are authorized to use for a period of sixty (60) days from the date of installation, a Pen Register \ Trap & Trace and Cellular Tracking Device to include cell site information, call detail, without geographical limits . . .
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ORDERED, . . . [t]he Agencies are authorized to employ surreptitious or duplication of facilities, technical devices or equipment to accomplish the installation and use of a Pen Register \ Trap & Trace and Cellular Tracking Device, unobtrusively and with a minimum of interference to the service of subscriber(s) of the aforesaid telephone, and shall initiate a signal to determine the location of the subject's mobile device . . . .
Cell Phone in a Hailstorm
As soon as Det. Spinnato obtained the pen register\trap & trace order on May 5, he sent a copy to the BPD's Advanced Technical Team (the "ATT"). The ATT then issued a form request to the service provider (Sprint) for the following: subscriber information; historical cell site location information ("CSLI") for the period from April 5 to May 5, 2014; pen register data for 60 days; and precision GPS data from Andrews's phone. An additional request followed for "GPS Precise Locations and email."
Later on the same day-May 5-Det. Spinnato began receiving emails from ATT with GPS coordinates for Andrews's cell phone (within a range of a 200 to 1600 meter radius). Det. Spinnato and officers from the Warrant Apprehension Task Force ("WATF") proceeded to the general area and waited until they received information from ATT that the cell phone was in the area of 5000 Clifton Avenue, Baltimore City. They proceeded to an area where there were approximately 30 to 35 apartments around a U-shaped sidewalk. Detective John Haley from ATT arrived and, using a cell site simulator known by the brand name "Hailstorm, " was able to pinpoint the location of the cell phone as being inside the residence at 5032 Clifton Avenue.
Det. Spinnato knocked on the door and, after obtaining the consent of the woman who answered, entered the residence along with several other officers. They found Andrews seated on the couch in the living room with the cell phone in his pants pocket.
Det. Spinnato arrested Andrews and secured the location until a search warrant could be obtained. Once they had the warrant, the BPD searched the home and found a gun in the couch cushions.
Andrews was indicted by a grand jury on May 29, 2014, on numerous charges related to the April 27, 2014 shooting. On July 1, 2014, the Assistant Public Defender representing Andrews filed an "omnibus" motion including requests for discovery and the production of documents. The State responded with an initial disclosure and supplemental disclosure on July 9 and 11, respectively. Those disclosures, however, failed to reveal the method used to locate Andrews on the date of his arrest.
On November 3, 2014, defense counsel filed a supplemental discovery request seeking, inter alia, "[a]ll evidence indicating how Andrews was located at 5032 Clifton Avenue." The State's response to that request, dated January 8, 2015, stated, "[a]t this time the State does not possess information related to the method used to locate [Andrews] at 5032 Clifton Avenue." However, five months later defense counsel received an email from the Assistant State's Attorney ("ASA") assigned to the case indicating that it was her understanding that "the ATT used a stingray to locate your client via his cell phone, " but she was waiting for "the paperwork." The next day, May 7, the ASA also notified defense counsel of exculpatory evidence in the form of a negative photo array that was conducted the previous January.
On May 12, 2015, defense counsel requested that the court dismiss the case based on discovery violations and moved for suppression of evidence, including the gun, phone records, and identification testimony. A few days later, on May 15, the State filed a supplemental disclosure, which provided:
WATF did not have the Clifton Ave address as a possible location until ATT provided that information. Det. Spinnato recalls that he was in touch with Det. Haley from ATT. ATT was provided that information from Sprint in the form of GPS coordinates, Det. Spinnato received the same information either from Sprint directly, or forwarded from ATT. Det. Spinnato provided ATT with the phone number associated to Defendant from the shooting investigation and, [redacted in original]-Det. Spinnato recalls that ATT gave Det. Spinnato the Clifton Ave address in the afternoon/early evening on May 5, 2014. . . .
The State's supplemental disclosure also identified a second negative photo array conducted on May 4, 2014.
Andrews's initial motions were heard in the circuit court on May 12, 21, and June 4, 2015. At the conclusion of the hearing on June 4, the circuit court found that one of the lead investigators intentionally withheld exculpatory evidence-including both negative photo arrays. As a result, the circuit court partially granted the pending defense motion for sanctions and excluded that detective's testimony from trial. The court declined to dismiss the case and denied the motion to exclude the gun and cell phone on the basis of the State's withholding of discoverable materials. However, as a consequence of the State's failure to timely disclose information concerning Hailstorm surveillance technology that was used by the BPD, the Court granted the defense additional time to file a motion to suppress.
Motion to Suppress
Andrews filed a Motion to Suppress-over 50 pages including exhibits-on June 30, 2015, in which he challenged the BPD's surreptitious use of the Hailstorm cell site simulator to search Andrews's phone, without a warrant, under the Fourth Amendment to the United States Constitution. Andrews moved to suppress all evidence obtained from 5032 Clifton Avenue.
During the ensuing hearing on the motion to suppress, held August 20, 2015, the State suggested, and the defense agreed, that the circuit court rely on the transcripts and exhibits from the earlier motions hearings for an understanding of the function of the Hailstorm device and its use by the BPD:
[STATE'S ATTORNEY]: . . . The exact testimony that we're going to hear about with regard to the Fourth Amendment issue Counsel heard as it related to the discovery issue because the discovery issue bled into the Fourth Amendment issue. So there is nothing new. There is nothing -- Counsel's aware that the equipment is called Hailstorm not Stingray because of the testimony that Counsel heard and extracted from the detective as it relates to this very case. So there simply is, there is nothing new. We're at the exact same issue that we were two months ago.
THE COURT: So do we even need, do you need to call the witness or can I just rely on the transcript?
[STATE'S ATTORNEY]: It would seem to me to rely on the transcript.
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THE COURT: . . . So the State is indicating that the testimony that the State would present today is the same testimony that was presented --
[DEFENSE COUNSEL]: Right.
THE COURT: -- there.
[DEFENSE COUNSEL]: Right.
THE COURT: And that's in the transcript, and the Court can just rely on the transcript to rule on your motion.
[DEFENSE COUNSEL]: Right.
THE COURT: You're fine with that?
[DEFENSE COUNSEL]: Yep.
The court took a recess for several hours to review the motions and transcripts. The following excerpts from the June 4th hearing, entered as Defendant's Exhibit 1C, pertain to the function of the cell site simulator:
[DETECTIVE HALEY]: What happened in this case was, Detective Sp[innato] from our WATF, which is the Warrant Apprehension Unit, apparently interviewed somebody -- got a phone number. He then responds down here to the Circuit Court . . . and gets a Court Order signed.
He then sends the Court order down to our office, depending on what the carrier is, Verizon, Sprint, T-Mobile, AT&T. We then send it to them. I ask for subscriber information, call-detail records.
They provide us with GPS locations, in this case. And once we get all the information, then we have equipment that we can go out and locate cell phones.
[DEFENSE COUNSEL]: Okay. When you say, we have equipment that we can locate cell phones, you're talking about the Stingray equipment, is that what was used in this case?
[DETECTIVE HALEY]: Yeah, it's called the Hailstorm. It used to be --Stingray is kind of first generation.
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[DEFENSE COUNSEL]: Tell me what the Hailstorm does.
[DETECTIVE HALEY]: What we get from the phone company is the subscriber information. So, when we get the subscriber information, it has a [sic] identifier on there, if you will, a serial number. We put that into the Hailstorm equipment. And the Hailstorm equipment acts like a cell tower. So, we go into a certain area, and basically, the equipment is looking for that particular identifier, that serial number.
[DEFENSE COUNSEL]: Okay. And so, if a person is inside of a home, that equipment peers over the wall of the home, to see if that cell phone is behind the wall of that house, right?
[DETECTIVE HALEY]: Yes.
[DEFENSE COUNSEL]: And it sends an electronic transmission through the wall of that house, correct?
[DETECTIVE HALEY]: Yes.
[DEFENSE COUNSEL]: Did you get a separate search warrant for that search into the home?
[DETECTIVE HALEY]: You'd have to talk to Detective Spinnato about that. Because he's the one that ...