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Fourth Circuit Requests Further Information on Stingray Device to Determine Whether It Violates Fourth Amendment Rights

The U.S. Court of Appeals for the Fourth Circuit remanded a case to the U.S. District Court for the District of Maryland because the lower court failed to provide sufficient development on the record to determine whether the use of a stingray device violated the defendant’s rights.

Kerron Andrews was wanted for attempted murder in 2014 when Baltimore City Police used a cell-site simulator (aka stingray device) marketed as “Hailstorm” to track him down inside an apartment in Baltimore, Maryland.

After his arrest, he prevailed on a motion to suppress contraband found during his arrest because the state court decided the warrant used to locate him was too vague since it did not disclose the use of the Hailstorm, which the court described as a “far-reaching new search technology.” State v. Andrews, 134 A.3d 324 (Md. Ct. Spec. App. 2016).

Andrews then sued the city in federal court for conducting a search without a valid warrant. The federal court found that the warrant was sufficient in its vague description of the Hailstorm simulator to support the warrant and thus the search. It did so without conducting “factfinding into (1) the surveillance capabilities and configuration of the Hailstorm simulator and (2) the circumstances surrounding issuance of the [warrant].” Andrews appealed.

On appeal, the Fourth Circuit reviewed landmark cases on Fourth Amendment searches. Berger v. New York, 388 U.S. 41 (1967) rejected the use of a new eavesdropping device in part because “the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation.” In Katz v. United States, 389 U.S. 347 (1967), the U.S. Supreme Court instructed courts must ensure that “no greater invasion of privacy is permitted than in necessary under the circumstances ... by authorizing the carefully limited use of electronic surveillance.” In Kyllo v. United States, 533 U.S. 27 (2001) (discussing law enforcement’s use of a heat sensor to see “inside” a home), the Supreme Court concluded that “obtaining by sense-enhancing technology any information regarding the interior of the home that physical intrusion into a constitutionally protected area constitutes a search.”

The Fourth Circuit explained that “the Supreme Court has directed us to take special care in evaluating the reach of new technologies into protected areas.” As the Supreme Court explained in Carpenter v. United States, 138 S. Ct. 2206 (2018), courts must ensure that “the progress of science does not erode Fourth Amendment protections.” Justice Sotomayor, in her concurring opinion in United States v. Jones, 565 U.S. 400 (2012), urged judicial caution where a new method of monitoring “is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously” because such a method “evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility.”

After a review of the relevant case law, the Fourth Circuit decided it needed more information about the Hailstorm simulator before it could strike the appropriate “balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Quoting from Pennsylvania v. Mimms, 434 U.S. 106 (1977).

More specifically, the Court wanted to know (1) the range of the device, (2) the number of cell devices it could monitor at once, (3) all data from a user’s device the Hailstorm could intercept, (4) how much of this is stored, (5) what data intercepted is accessible by law enforcement, and (6) whether the device was configured to minimize data collected from devices not belonging to Andrews.

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Related legal case

Andrews v. Balt. City Police Dep’t



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