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Maryland court dials up cellphone privacy in landmark ruling

The Maryland Court of Special Appeals, the Old Line State's second highest court, handed down a landmark decision that will assure that the criminal justice system protects privacy rights. It issued the first high court decision in this country finding that police investigators are required to secure a search warrant for tracking cellphones, particularly for using a Stingray device to track phones. The Stingray device works a bit like a cellphone tower and triggers all operating cellphones in its range to connect with it. It then operates a real-time tracking device for locating cellphones.

The court reproached the Baltimore Police for its failure to disclose their use of this device for locating an attempted murder suspect. The court concluded that the Fourth Amendment protects people and provides them with the reasonable expectation of privacy with respect to their real-time cellphone location information. It is unclear whether the court's order applies retroactively to earlier cases.

Criminal defense attorneys suspected that police were using this device and began challenging their evidence in 2014. In one case, a judge almost held a police detective in contempt of court when he refused to answer questions on the technology.

Baltimore also utilized a non-disclosure agreement like those used in other jurisdictions across the country. The FBI, the Baltimore Police and the Maryland attorney general's office agreed never to disclose this technology and prosecutors also agreed to dismiss cases if there was a possibility this technology would be disclosed. The court criticized this agreement as violating constitutional principles. Police eventually disclosed that the Stingray device was used in thousands of investigations without their providing specific information on how it worked.

Prosecutors argued that the defendant had the option to turn his phone off and that by leaving it on he voluntarily shared information on the location of his cellphone. They said no metadata or personal information was collected. Police earlier claimed that they could not retain cellphone data, search the phone's files or provide personal identifying information on their owners.

An arrest can have long-term consequences. Prompt legal assistance could protect rights by challenging evidence obtained by law enforcement where it did not comply with constitutional protections.

Source: The Baltimore Sun, "Maryland appellate court: warrant required for 'stingray' phone tracking," Justin Fenton, March 31, 2017

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As Published in Washingtonian Magazine | Washington's Best Legal Minds | 2013