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Divided Md. high court upholds cell tower simulator search

Court of Appeals finds 'good faith'

Baltimore detectives did not violate a suspected killer’s constitutional rights by essentially erecting a cellphone tower to find him, a sharply divided Maryland high court ruled Friday.

The detectives relied in “good faith” on what they believed was a valid warrant to use the high-tech equipment to search for the suspect, who they say turned out to be Robert L. Copes, the Court of Appeals held in its 4-3 decision.

Such good-faith reliance by police does not violate the Constitution’s Fourth Amendment prohibition on unreasonable searches, the high court said, citing U.S. Supreme Court precedent.

The Court of Appeals’ decision permits city prosecutors to introduce Copes’ first-degree murder trial the blood they subsequently found in his northwest Baltimore apartment in February 2014. That blood belonged to Ina Jenkins, a young homeless woman whose beaten and charred body was found weeks earlier behind a vacant home across the street, prosecutors say.

In its ruling, the high court noted its decision is the latest in a line of cases nationwide addressing the Fourth Amendment implications of cellphone searches by law enforcement.

“Advances in personal technology, like the cellphone, empower individual users but may also threaten personal privacy,” Judge Robert N. McDonald wrote for the majority. “When police make use of the features of that technology to solve crime, courts and lawyers sometimes struggle to devise ground rules that respect constitutional privacy protections.”

‘Clearly inform’

The Baltimore City Circuit Court barred the blood evidence at Copes’ trial, saying the use of the cell site simulator without a valid warrant violated Copes’ Fourth Amendment rights. The intermediate Court of Special Appeals agreed last year, holding that the police requesting the order failed to state clearly the technology they planned to use or how they intended to limit the search’s scope.

But the Court of Appeals reversed, saying the request and court order contained sufficient instructions upon which the detectives could rely in good faith.

“(S)earch warrants need not include a specification of the precise manner in which they are to be executed,” McDonald wrote. “It is true that the application and the related order suffer from vices endemic to many legal documents… Yet 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).”

McDonald was joined in the majority opinion by Chief Judge Mary Ellen Barbera and Judges Shirley M. Watts and Joseph M. Getty.

The court’s decision drew praise from the Maryland attorney general’s office.

“We are gratified that the majority of the Court of Appeals recognized that the police acted in objective good faith when investigating Ina Jenkins’s murder,” the office stated.

Copes’ attorney, Assistant Maryland Public Defender Daniel M. Kobrin, did not return a telephone message Friday seeking comment on the decision.

Under Maryland law, police can apply to use a cell site simulator not with a warrant that relies on probable cause but with a court order based on the officers’ statement identifying that the information likely to be obtained is relevant to an ongoing criminal investigation.

‘Deficient’ warrant

In dissent, Judge Michele D. Hotten said the police could not have relied on good faith upon a court order that failed to describe the technology to be used and to place identifiable limits on the scope of the search so as not to include such a wide breadth of cellphones.

The cellphone simulator technology “does not only conduct a Fourth Amendment search for a specific cellphone, it also conducts a Fourth Amendment search of the surrounding area,” Hotten wrote. “Where … a law enforcement officer does not rely on a statute that details the type of technology the warrant, or order in this case, would apply to, he or she is required to provide a description of the technology he or she intends to use in sufficient detail for an issuing judge to appreciate the scope of the potential infringement on a person’s Fourth Amendment privacy interests, and the officer’s failure to do so results in a warrant so deficient on its face that the good faith exception to the exclusionary rule should not apply.”

Judges Clayton Greene Jr. and Sally D. Adkins joined Hotten’s dissent.

2 phone numbers

Baltimore police sought the court order to use the cell site simulator in its murder investigation after Jenkins’ mother told them that her daughter had called her from cellphones with numbers ending in 8138 and 4686 according to the caller ID log. Armed with the order, the police set up the cellphone simulator – or Pen Register/Trap & Trace and Cellular Tracking Device – to capture those numbers.

The device registered a hit on the 4686 number, which detectives were able to track first to Baltimore’s Penhurst Avenue neighborhood and then to 4014 Penhurst Ave., an apartment complex across the street from where Jenkins’ body had been found.

By knocking on doors at the complex police located Copes, whom officers had seen with Jenkins in surveillance videos. Police secured a warrant to search the apartment and found blood that was later matched to Jenkins through DNA testing, according to court documents.

The high court issued its decision in State of Maryland v. Robert L. Copes Jr., No. 84, September Term 2016.

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