STATE OF MARYLAND V. ROBERT L. COPES, JR.
Court of Appeals of Maryland, McDonald, July 28, 2017,
Cell Site Simulator- Good Faith- The good-faith exception should apply where police reasonably believed that an order obtained under the Pen Register Statute allowed them to use a cell site simulator.
(Dissent- Hotten with Greene, Adkins- Good Faith should not apply because a Pen Register isn’t a Search Warrant)
McDonald wanders far afield of the core holding; I wonder if he was counting on another vote or two and lost them somewhere along the way.
Is CSLI a search? Maybe…
Does a Pen Register awarded on a finding of probable cause qualify as a search warrant? “We recognize the strength the State’s argument on this issue” But we’re not gonna hold that…
This could have been a much shorter opinion…
But then we get to the dissent, which goes completely off the rails regarding how the technology works. According to the dissent, Hailstorm “explore[d] the details” of the residences within a two-block radius of the Hailstorm device “that would have previously been unknowable without” the intrusion of the signal.
No. Just… no.
Facts From the Case
In early 2014, Det. Kershaw of BPD’s homicide unit was the lead investigator on the murder of a homeless woman in the NWD. Det. Kershaw found out that the victim had used a particular phone number to call her mother just prior to the murder and worked with BPD’s ATT unit to investigate further.
Detectives sought an order in Circuit Court for a “Pen Register/Trap & Trace and Cellular Tracking Device to include cell site information”. Finding there was probable cause to issue such an order, it was signed by a Circuit Court judge.
Det. Haley from the ATT unit then employed a mobile cell site simulator called “Hailstorm,” which narrowed down the location of the victim’s cell phone to an apartment building on Penhurst Avenue.
Det. Kershaw had previously repeatedly canvassed that building during his investigation, but had gotten no response in apartment 1-E. After the Hailstorm hit, Det. Kershaw responded back to the apartment building and tried once again. This time when he knocked on the door of apartment 1-E, Copes answered. Det. Kershaw recognized Copes as a person of interest and noticed several items inside related to the homicide. After further investigation, Copes was charged with the victim’s murder.
Two years after the cell-site simulator was used in Copes’ case, the Court of Special Appeals held that a search warrant is required in order to use a cell site simulator such as the one that was used here.
Based on this, Copes (whose case was still pending trial) moved to suppress all the physical evidence recovered from his apartment (since police arrived at his apartment due to the Hailstorm hit).
At the suppression hearing, Det. Kershaw and Det. Haley testified that they believed that the order authorized them to use the cell site simulator. The form of the application had been drafted and approved by the State’s Attorney’s Office and the Police Department’s legal department, had been used since 2007, and was not revised until late 2014, after the investigation in this case.
Detective Kershaw testified that he was not aware of any “issues” with the application, which had been used and approved “many, many times.” In his experience, up through the time he applied for the orders at issue in this case, the application had, in fact, never been denied, nor had there“ever been any reservation expressed by [any judge of the Circuit Court for Baltimore City] as it relates to… the validity of those orders” obtained via the application.
The trial judge stated repeatedly that the police “operated in good faith” and even “complimented Detective Kershaw on his ‘fine work’ in the case.”
However, the Circuit Court judge nevertheless suppressed the evidence.
The State appealed and the Court of Special Appeals affirmed the Circuit Court ruling.
The State then requested that the Court of Appeals examine the issue, arguing that 1) CSLI is not a search, 2) the Pen Register qualified as a search warrant, and 3) the police operated in good faith and so the evidence shouldn’t be excluded.
Law from the Case
Held: The Court of Appeals agreed with the State in part, holding that the evidence was improperly suppressed. The Court specifically refused to decide whether CSLI was a search and whether a DNR could function as a search-warrant. Rather, it held that, even if there was an illegal search here, the police were acting in good faith pursuant to a court order they reasonably thought applied. Therefore, the evidence should be allowed in.
Exclusionary Rule- In general, evidence seized by police as a result of an unconstitutional search or seizure is kept out (“excluded”) from the evidence a judge/jury may consider.
Exclusionary Rule – The purpose of the exclusionary rule “is to deter” police violations of the constitution. This is done “by removing the incentive” to disregard the constitution.
Good Faith- However, there is no benefit to society in deterring officers from doing what they reasonably believe they are allowed to do. Therefore, the exclusionary rule does not apply to cases where police act reasonably in “good faith” based on established law (they can’t go against previous court decisions).
Good Faith- the exclusionary rule does not apply when law enforcement officials engage in “objectively reasonable law enforcement activity,” even if that activity is later found to be a violation of the Fourth Amendment.
Good Faith- The Supreme Court has held the good faith exception applies when law enforcement:
(1) executed a facially valid (appeared valid) search warrant that was later found to lack probable cause,
(2) conducted a search pursuant to a statute that was later held to be unconstitutional
(3) made an arrest pursuant to a warrant listed in a judicial or law-enforcement database that was later revealed to be inaccurate
and (4) conducted a search in reliance on a binding court case that was later overruled.
Good Faith- The Supreme Court has held that good faith does not apply where:
(1) the judge was misled by information in the application for the warrant that the officer knew or should have known was false;
(2) the judge wholly abandons a detached and neutral role (doesn’t read the application, participates in the investigation, etc);
(3) the affidavit is so lacking in probable cause that it’s unreasonable for the officer applying for the warrant to believe that probable cause exists;
(4) the warrant is obviously deficient (doesn’t particularize the place to be searched or the things to be seized, etc)
Practice Notes: There is not going to be a similar “good faith” exception to orders issued AFTER October 2014, when legislation became effective that specifically governs police acquisition of cell phone tracking and location information. Orders seeking this information must track the language of this statute. Check your e-mail for the current order format or contact ATT with any questions.
From the Case: The Court of Appeals found that the “good faith” exception applied here because the detectives in this case did not have the benefit of the new cell-phone location statute (listing requirements for cell-phone tracking) or the Court of Special Appeals decision (real time cell-phone tracking without a search warrant was a violation of the 4th Amendment). Rather, they had what they believed to be a valid court order.
From the Case: The Court of Appeals noted that “the application and the related order suffer from vices endemic to many legal documents – grammatically-challenged prose, repetitive phrasing, multi-paragraph sentences, numerous subordinate clauses, parades of synonyms, legions of commas interspersed with semicolons.” However, the Court noted that good-faith should still apply because the “application and order clearly inform a reasonably diligent reader of what the officers seek to do and how they plan to do it (even if they do not describe the technical details).”