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4th Circuit requests additional facts in cell site simulator case

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)

A cell site simulator — this one known as a Sting Ray — effectively acts as a cellphone tower and makes cellular devices transmit a signal to connect. (AP Photo/U.S. Patent and Trademark Office)

A federal appeals court remanded a Baltimore man’s lawsuit over the use of a cell site simulator to locate him, ordering the trial court to make more factual findings about the device.

Kerron Andrews filed suit arguing the Baltimore Police Department violated his Fourth Amendment rights when it 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 had occurred.

When a cell site simulator was 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 nondisclosure agreement to use the technology, which effectively acts as a cellphone tower and makes cellular devices transmit a signal to connect.

U.S. District Judge Catherine C. Blake dismissed the civil lawsuit in 2018, finding that the pen register order police obtained — which did not directly refer to Hailstorm — contained a probable cause finding and qualified as a warrant. Andrews appealed to the 4th U.S. Circuit Court of Appeals.

On Friday, a three-judge panel voted to send the case back to U.S. District Court for further fact-finding.

“The problem we face in resolving this appeal is that the record inadequately describes the degree of intrusion onto constitutionally protected areas that occurred as a result of the Hailstorm simulator’s use,” Judge James A. Wynn Jr. wrote in a published opinion. “Defendants rely on limited testimony from a BPD officer as to how he understood and operated the device, as well as public domain references describing cell site simulators generally. These sources tell us relatively little about what information the device gathered, and from whom.”

Acting City Solicitor Dana P. Moore expressed frustration with the court’s opinion Friday, arguing it “simply does not matter what the ‘degree of intrusion’ is because only Andrews’ rights are implicated in this claim for damages.”

Attorney H. Mark Stichel said he was happy with the decision, which will require discovery at the trial court level.

The opinion directs the trial court to determine the range at which the Hailstorm simulator can force nearby devices to connect, the maximum number of devices Hailstorm can connect with, the categories of data Hailstorm can collect and what is stored and accessible to law enforcement, and all means that can be used to minimize the collection of data from third parties.

Stichel, of Astrachan Gunst Thomas PC in Baltimore, said there was no discovery in the case to answer these questions because it was dismissed.

“One of the huge issues in this case from the beginning was just to find out what the technology was and how it was used and what exactly the court was told in the pen register order,” he said.

The trial court is also requested to determine if the department had any formal or informal policies, practices or procedures that prevented officers applying for a pen register or warrant from telling the reviewing judge that a cell site simulator would be used.

Chief Judge Roger L. Gregory joined Wynn’s opinion and Judge J. Harvie Wilkinson III wrote a separate concurring opinion.

Wilkinson said he concurred in the opinion because it seeks to develop the factual record and does not direct a particular result, but he noted that the court should balance the invasion of privacy created by the cell site simulator with its usefulness in criminal investigations.

“Where, as here, both significant governmental interests and significant privacy interests may well be at stake, the district court may find it profitable to inquire whether the important public interest in crime prevention and detection could have been served by means that were less intrusive and damaging to the ‘legitimate expectations of privacy’ that citizens hold,” Wilkinson wrote.

The case is Kerron Andrews v. Baltimore City Police Department et al., 18-1953.

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