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LAWYERS PLAN CHALLENGE TO ARRESTS BASED ON SECRET CELLPHONE TRACKING

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

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8/28/2015
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Defense lawyers in Baltimore are examining nearly 2,000 cases in which the police secretly used powerful cellphone tracking devices, and they plan to ask judges to throw out “a large number” of criminal convictions as a result.

“This is a crisis, and to me it needs to be addressed very quickly,” said Baltimore’s deputy public defender, Natalie Finegar, who is coordinating those challenges. “No stone is going to be left unturned at this point.”

The move follows a USA TODAY investigation this week that revealed that Baltimore police have used cellphone trackers, commonly known as stingrays, to investigate crimes as minor as harassing phone calls, then concealed the surveillance from suspects and their lawyers. Maryland law generally requires that electronic surveillance be disclosed in court.

Finegar and others said they do not know how many criminal cases they ultimately will seek to reopen because of the secret phone tracking, but she expects it to be “a large number.” The public defender’s office is reviewing a surveillance log published by USA TODAY that lists more than 1,900 cases in which the police indicated they had used a stingray. It includes at least 200 public defender clients who were ultimately convicted of a crime.

Stingrays are suitcase-sized devices that allow the police to pinpoint a cellphone’s location to within a few yards by posing as a cell tower. In the process, they also can intercept information from the phones of nearly everyone else who happens to be nearby.

At least 53 police departments from Miami to Los Angeles own one of the cell trackers, according to the American Civil Liberties Union. But few have revealed when or how the devices are used, in part because they signed non-disclosure agreements with the FBI.

As a result, Baltimore’s surveillance log provides a rare window into the secret surveillance. That log, matched with court records, showed that the authorities had used stingrays to hunt everyone from killers to petty thieves, usually did so without obtaining search warrants, and routinely sought to hide that surveillance from the people they arrested.

“This has really opened the floodgates,” Baltimore defense lawyer Josh Insley said. He said he could start filing challenges to some of his clients’ convictions by next week.

A spokeswoman for Baltimore’s State’s Attorney, Tammy Brown, said prosecutors will evaluate each challenge on its own merits. She agreed that prosecutors are required to tell defendants when the police use a stingray, but “we need to get that information first.”

Overturning a criminal conviction is no small task. Before they can even ask judges to take that step, defense lawyers have to comb through the surveillance log to figure out which of their clients were targets of the phone tracking, then contact them in prison.

“It’s probably going to be a long process,” ACLU attorney Nathan Wessler said. “But now at least you have defense lawyers who know what happened to their clients and can invoke the power of the courts to make sure that the Constitution was complied with.”

The challenges come as top lawmakers are questioning the need to keep stingrays so secret. “Transparency leads to accountability, and by all accounts, the use of this technology and its legal authority could use more of both,” said Sen. Charles Grassley, R-Iowa, the chairman of the Senate Judiciary Committee. Rep. Jason Chaffetz, R-Utah, the head of the House Oversight and Government Reform Committee said “secrecy surrounding the use of these devices fosters an environment where abuse and misuse of the equipment is more likely to occur.”

Baltimore Mayor Stephanie Rawlings-Blake sees no problem with keeping the surveillance secret, as long as the police are using the trackers legally. Baltimore — long among the nation’s most violent big cities — is battling a surge of killings this year, and “we’re certainly going to use every tool that we have available” to stop it, she said Wednesday.

“As long as it’s not illegal, it’s not inappropriate,” Rawlings-Blake said.

The city’s prosecutors took a different view. Brown, the spokeswoman for the State’s Attorney, said Maryland court rules require the authorities to tell defendants about stingrays in every case in which one was used. She said the office is working with the police to make sure they inform judges before they use a stingray, and inform prosecutors after they make an arrest.

“It’s something we’re very committed to resolving,” Brown said.



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