State v. Copes, 84, Sept. Term, 2016

• Decision Date: 28 July 2017
• Docket Number: No. 84, Sept. Term, 2016,84, Sept. Term, 2016
• Citation: 165 A.3d 418,454 Md. 581
• Parties: STATE of Maryland v. Robert L. COPES, Jr.
• Court: Court of Special Appeals of Maryland

454 Md. 581

165 A.3d 418

STATE of Maryland

v.Robert L. COPES, Jr.

No. 84, Sept. Term, 2016

Court of Appeals of Maryland.

July 28, 2017

Argued by Robert K. Taylor, Jr., Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of

Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Daniel M. Kobrin, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

McDonald, J.Advances in personal technology, like the cell phone, empower individual users but may also threaten personal privacy. 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.

This case involves an example of the law's effort to keep apace.

Detectives investigating the gruesome murder of a young homeless woman in Baltimore City determined that a cell phone associated with her—but not found with her body—was still in active use. Hoping to find the phone—and the murderer—they applied to the Circuit Court for authorization to use, among other techniques, a "cellular tracking device" to locate the phone. They presented a sworn application to the Circuit Court that summarized the investigation of the murder, information concerning the missing phone, and their purpose in attempting to find it, as well as a draft order that tracked the application in pertinent respects. They did so under an established procedure—approved by the State's Attorney and the Police Department's lawyer—that had been adapted from a statute for police use of devices that record the numbers of incoming and outgoing calls concerning a target phone. The court issued the order, finding that "probable cause exists" upon the basis of the application.

The detectives then employed a device known as a cell site simulator—basically, an undercover cell tower—which led them to the apartment of Respondent Robert L. Copes, where they found the phone, Mr. Copes, and evidence linking him to the victim and the murder.

After charges were filed, Mr. Copes asked the Circuit Court to suppress the evidence obtained as a result of the use of the cell site simulator. Despite finding that the detectives acted "in good faith" and had done "fine work," the Circuit Court felt constrained by a recent decision of the Court of Special Appeals.¹ It granted the motion on the ground that the use of the cell site simulator to locate the phone was a search for purposes of the Fourth Amendment and that the court order did not function as a search warrant.

We hold that the evidence need not be suppressed. Regardless of whether use of a cell site simulator is a search for purposes of the Fourth Amendment or whether the court order authorizing its use fell short of a search warrant, the detectives in this case acted in "objectively reasonable good faith."

I

Background

A. Cell Site Simulators and Judicial Authorization for Location Tracking

1. Cell Phones and Location Tracking

The ubiquitous cell phone has become a necessity of modern life. It facilitates mobility and access to information, not to mention mobile access to information. It has also spawned much attention in the application of the constitutional protections of personal privacy. Much of that attention concerns the information contained on a cell phone, particularly a "smart phone" that may contain or access a library of private information.² Of equal concern is the ability of the cell phone to transmit information about its location—and the location of the individual who possesses it.

A cell phone's identification of its location is one of its essential virtues. A cell phone must be found by a service provider for it to be used as a phone. The location tracking feature of a cell phone is commonly used by those with a cell phone to navigate,³ to locate an errant cell phone,⁴ to find friends or family with cell phones in the vicinity,⁵ and to summon help to the location of the cell phone in an emergency.⁶

Law enforcement has sought to enlist this feature of cell phones to prevent and investigate crime. This case involved the use of two techniques that depend on a cell phone's indication of its location: cell site location information obtained from a service provider and a device known generically as a cell site simulator.

Cell Site Location Information ("CSLI")

When a cell phone sends or receives a call or text message, it attempts to connect with the service provider's closest cell tower.⁷ If one knows which cell towers a cell phone has connected to (or is connecting to) and the physical location of those towers, one can approximate the geographical location of that cell phone. This information is often referred to as "cell site location information" or "CSLI." Information concerning which towers a cell phone has connected to in the past is sometimes referred to as "historical CSLI." Information concerning which towers a cell phone is currently connecting to is sometimes referred to as "real-time CSLI."⁸

Cell Site Simulators

A cell site simulator works as its name suggests—it pretends to be a cell tower on the network of the target phone's service provider.⁹ It takes advantage of the fact that a cell phone—when turned on—constantly seeks out nearby cell towers, even if the user is not making a call.¹⁰ Furnished with identifying information concerning the target phone, the cell site simulator searches for that phone. When the cell site simulator is close enough, the target phone will connect to it as though it were a cell tower.¹¹

Law enforcement officers using a cell site simulator may employ two devices in tandem: one stationed in a vehicle, the other carried by hand. The vehicular device, when it makes a connection with the target phone, points the user in the direction of the target phone. The handheld device, when taken in that direction, informs the user whether the target phone is getting closer or farther away. The combination of the two devices can produce a fairly accurate estimate of the target phone's location.¹²

2. Orders Authorizing Location Tracking under the Pen Register Statute

At the time of the investigation in this case, no statute specifically addressed the use of a cell site simulator or other device to track a cell phone's location.¹³ Apparently, many law enforcement agencies, including the Baltimore City Police Department and the United States Department of Justice,¹⁴ obtained judicial authorization to use a cell site simulator by following the established procedures for obtaining authorization to use a pen register or trap and trace device. As we shall see, some modifications and enhancements were made to a standard pen register application and order to customize those documents to a cell site simulator. We take a short detour to describe the Maryland Pen Register Statute, Maryland Code, Courts & Judicial Proceedings Article ("CJ"), § 10–4B–01 et seq.

In simple terms, a pen register records the numbers dialed out from a given phone, and a trap and trace device records the numbers that dial into that phone. See CJ § 10–4B–01(c), (d) (definitions of "pen register" and "trap and trace device"). When information from both devices is aggregated, a log of all incoming and outgoing calls can be created for the period that the devices are active. These devices do not capture the content of communications. The Fourth Amendment does not require law enforcement officers to obtain a search warrant in order to use a pen register or trap and trace device. Smith v. Maryland , 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).¹⁵ Nevertheless, the General Assembly, by enacting the Pen Register Statute,¹⁶ has required law enforcement officers to obtain judicial approval before using a pen register or a trap and trace device in an investigation.¹⁷

To obtain an order under the Pen Register Statute, a law enforcement officer must make application under oath to a "court of competent jurisdiction in the State." CJ § 10–4B–03(a). The application must identify the officer and agency conducting the investigation, and must state that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency. CJ § 10–4B–03(b). Unlike an application for a search warrant, the application to use a pen register or trap and trace device need not demonstrate probable cause that a crime has been committed or that the evidence relating to that crime will be acquired through use of the device. If the application is approved, the order must identify the individual, if known, whose phone number is being surveilled and the individual who is the subject of the criminal investigation. CJ § 10–4B–04(b). The order may authorize use of the device for a maximum of 60 days. CJ § 10–4B–04(c). The statute also requires a phone service provider to whom an order is presented to furnish the officer with "all information, facilities, and technical assistance necessary to accomplish the installation" of the device "unobtrusively and with a minimum of interference" to the phone's service. CJ § 10–4B–05(a) - (b).

3. CP § 1–203.1

In 2014, the General Assembly enacted a statute to provide a specific judicial procedure to authorize law enforcement use of location tracking through cell phones. Chapter 191, Laws of Maryland 2014, codified at Maryland Code, Criminal Procedure Article ("CP"), § 1–203.1. That statute provides for the District Court or a circuit court to authorize law enforcement officers "to obtain location information from an electronic device" in defined circumstances if the officers present a sworn application with a showing of probable cause, as specified in the statute. The statute became effective October 1, 2014, a few months after the events in this case. Since that time, law enforcement efforts to obtain judicial authorization for use of a cell site simulator presumably have been made pursuant to...