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Attorneys appeal to 4th Circuit dismissal of cell site simulator lawsuit

This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. A police officer testified Wednesday, April 8, 2015, that the Baltimore Police Department has used Hailstorm, a upgraded version of the StringRay surveillance device, 4,300 times and believes it is under orders by the U.S. government to withhold evidence from criminal trials and ignore subpoenas in cases where the device is used. (AP Photo/U.S. Patent and Trademark Office)

This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. Hailstorm is an a upgraded version of the StringRay surveillance device. (AP Photo/U.S. Patent and Trademark Office)

Attorneys for a Baltimore man suing police over the use of a cell site simulator to locate him are asking a federal appellate court to review the case after it was dismissed earlier this month.

Kerron Andrews filed suit arguing the police violated his Fourth Amendment right when they used the device, known as “Hailstorm,” to track him in 2014. His criminal case was ultimately dismissed after the Court of Special Appeals determined a constitutional violation occurred.

U.S. District Judge Catherine C. Blake disagreed and sided with police Aug. 1, finding she was not bound by the state court’s decision and determining that the order obtained by police contained a reasonable probably cause finding though it did not directly refer to Hailstorm.

Andrews’ attorneys noted an appeal to the 4th U.S. Circuit Court of Appeals on Tuesday.

“The case presents an important constitutional issue and we believe that the 4th Circuit will agree that (the department’s) presentation of a pen register order to a judge does not magically turn it into a warrant through the surreptitious inclusion of vague ‘probably cause’ boilerplate language in the document,” H. Mark Stichel said in an emailed statement.

When a cell site simulator was being used, police often made oblique references in arrest reports and other discovery materials, according to the Court of Special Appeals ruling in Andrews’ case. It was later discovered that the Baltimore Police Department was required to sign a non-disclosure agreement in order to use the technology.

Stichel, of Astrachan Gunst Thomas PC in Baltimore, said the department was “consciously trying to keep Baltimore judges in the dark.”

Blake wrote her determination Andrews’ rights were not violated “should not be mistaken for (the court’s) approval of the government’s conduct.” Signing a non-disclosure agreement and editing a pen register order to function as a search warrant objectively meets constitutional standards, she wrote, but “a more candid approach to the court would have been preferable.”

The case is Kerron Andrews v. Baltimore Police Department et al., 1:16cv02010.


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