IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
SEPTEMBER TERM, 2015
NO. 1496
STATE OF MARYLAND
Appellant,

v.
KERRON ANDREWS,
Appellee.
APPEAL FROM THE CIRCUIT COURT
FOR BALTIMORE CITY
(Hon. Kendra Ausby, Motions Judge)
BRIEF OF APPELLANT
BRIAN E. FROSH
Attorney General of Maryland
ROBERT TAYLOR, JR.
Assistant Attorney General
Office of the Attorney General
Criminal Appeals Division
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6422
rtaylor@oag.state.md.us
Counsel for Appellant

 TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................... iii
STATEMENT OF THE CASE ..................................................................... 1
QUESTIONS PRESENTED ......................................................................... 2
STATEMENT OF FACTS ........................................................................... 2
ARGUMENT ................................................................................................ 4
I.

I. THE MOTIONS COURT ERRED IN FINDING THAT

THE USE OF A CELLULAR TRACKING DEVICE TO
LOCATE ANDREWS'S PHONE VIOLATED THE
FOURTH AMENDMENT................................................................. 4
A.

Standard of Review and Burden(s) of Proof.. ......................... 5

B.

How the cell site simulator worked in this case...................... 7

C.

A warrant is not required to collect information
voluntarily shared with third parties ....................................... 9

D.

To the extent applicable, the tracking of the phone was
authorized by a court order................................................... 14

E.

Even if construed as a Fourth Amendment search, the
court order obtained by the police made such a search
reasonable . ............................................................................ 18
1.

The order rendered the search presumptively
reasonable.................................................................. 19

2.

The suppression court did not extend proper
deference to the existing orders................................. 20

II.

II. THE MOTIONS COURT ERRED IN FINDING THAT
ANDREWS DID NOT HAVE TO SHOW STANDING
BEFORE CHALLENGING THE SEARCH OF THE HOME
Wl-IERE HE WAS ARRESTED ..................................................... 24

III.

III. THE MOTIONS COURT ERRED IN FINDING THAT
THE SEARCH WARRANT FOR THE HOME Wl-IERE
ANDREWS WAS LOCATED WAS INVALID............................. 25

.l

 IV.

IV. THE MOTIONS COURT ERRED IN FINDING THAT
GOOD
FAITH
EXCEPTION
TO
THE
THE
EXCLUSIONARY RULE DID NOT APPLY................................ 29

CONCLUSION ........................................................................................... 31
CERTIFICATION OF WORD COUNT AND
COMPLIANCE WITH RULE 8·112 ......................................................... 32
PERTINENT PROVISIONS ...................................................................... 33

11

 TABLE OF AUTHORITIES

Cases
Fitzgerald v. State, 153 Md. App. 601 (2003) .............................................. 6
Gibson v. State, 138 Md. ~pp. 399 (2001) ................................................. 27
Greenstreet v. State, 392 Md. 652 ) (2006) .......................................... 21, 22
Herbert v. State, 136 Md. App. 458 (200 1) ................................................ 20
Herring v. United States,_ U.S._, 129 S.Ct. 695 (2009) ................... 29
In re Special Investigation No. 228, 54 Md. App. 149 ............................... 23
Johnson v. United States, 333 U.S. IO (I948) ............................................ 20
Jones v. State, 213 Md. App. 483 (2013) ...................................................... 5
Katz v. United States, 389 U.S. 347 (1967) ................................................ 20
Kyllo v. United States, 533 U.S. 27 (2001) ........................................... 12, 13
Marshall v. State, 415 Md. 399 (20IO) ....................................................... 30
Massachusetts v. Upton, 466 U.S. 727 (1984) .......................................... 7, 8
McFarlin v. State, 409 Md. 391 (2009) ...................................................... 23
Minor v. State, 334 Md. 707 (1994) ............................................................ 30
Patterson v. State, 401 Md. 76 (2007) ........................................................ 30
Rakas v.Il/inois, 439 U.S. 128 (1978) .......................................................... 6
Smith v. Maryland, 442 U.S. 735 (1979) ........................................ 10, 1 I, I4
State v. Brooks, I48 Md. App. 374 (2002) ................................................... 6
State v. Jenkins, I 78 Md. App. I 56 (2008) ................................................. 2 I

iii

 State v. Pme, 414 Md. 531 (20 10) ............................................................ 2, 4
State v. Savage, 170 Md. App. 149 (2006) ........................................... 25, 28
Steagald v. United States, 451 U.S. 204 (1981) .......................................... 28
Thompson v. State, 395 Md. 240 (2006) ..................................................... 17
Thompson v. State, 62 Md. App. 190 ( 1985) ............................ .................. 25
United States v. Jones, 565 U.S._, 132 S.Ct. 945 (2012) ...................... 13
United States v. Karo, 468 U.S. 705 (1984) ......................................... 11, 12
United States v. Knotts, 460 U.S. 276 (1983) ............................................. 11
United States v. Leon, 468 U.S. 897 (1984) ................................................ 29
Upshur v. State, 208 Md. App. 383 (2012) ........................................... 10, 18
Statutes
18 U.S.C.A. § 3121 (West 2015) ................................................................ 14
Cts. & Jud. Pro. Art. § 10-4B-01 .................................................. _............ 14
Cts. & Jud. Pro. Art.§ 10-4B-Ol(c)-(d) ...................................................... 14

lV

 STATEMENT OF THE CASE
A warrant for the arrest of Kerron Andrews, charging him with, inter
alia, attempted murder, was issued on May 2, 2014. (R.l). He was arrested
on or about May 5, 2014. (R.41). On July 1, 2014, his attorney entered her
appearance and filed various generic "omnibus" motions and discovery
requests. Trial was postponed several times. On May 12, 2015, Andrews's
attorney filed a motion seeking sanctions due to discovery violations. After
a series of hearings on the discovery violations, the Hon. Charles J. Peters,
presiding, certain sanctions were levied against the State, and defense
counsel was given the opportunity to examine several state police witnesses
under oath. Some of these examinations related to the police officers' use of
a cell site simulator, or "Hailstorm" device, to locate Andrews's cell phone
in an attempt at serving the arrest warrant. Andrews subsequently moved to
suppress "all evidence obtained from the warrant executed at 5032 Clifton
Avenue" (R.18), the address where Andrews had been found by the Warrant
Apprehension Task Force of the Baltimore City Police Department.
After considering the motion and the testimony taken at the earlier
discovery hearing, Judge Ausby granted the motion to suppress the items
recovered from the address where Andrews was arrested.1 The State
thereupon filed this appeal.

 QUESTIONS PRESENTED
1. Did the motions court err in finding that the use of a cellular tracking
device to locate Andrews's phone violated the Fourth Amendment?
2. Did the motions court err in finding that Andrews did not have to show
standing before challenging the search of the home where he was arrested?
3. Did the motions court err in finding that the search warrant for the home
where Andrews was located was invalid?
4. Did the motions court err in excluding the items recovered in this case?

STATEMENT OF FACTS
On April 27, 2014, tlrree people were shot when they attempted to
purchase drugs on the 4900 block of Stafford Street in Baltimore City. (R.5).
Police identified Andrews as a subject, and a warrant was issued for his
arrest. (R.6). After they were unable to locate Andrews at his last known
address, (R.41 ), police sought, and obtained, an order from the Circuit Court
for Baltimore City authorizing the use of a "Pen Register\ Trap & Trace and
Cellular Tracking Device to include cell site infonnation, call detail, without

1

The court ruled that the phone taken from Andrews' s pocket would not be
suppressed. (S.49). The handwritten docket entry to the contrary is incorrect,
and the State requests that this Court's mandate include an order to amend
the docket entries to reflect that the phone was not ordered suppressed. See
State v. Prue, 414 Md. 531, 546 n.8 (20 10) (listing cases supporting
proposition that where docket entries conflict with transcript, transcript is
controlling).

2

 geographical limits" pursuant to "Section I 0-48-04 of the Courts and
Judicial Proceedings Article[.]" (R.67). The Advance Technical Team of the
Baltimore Police Department then used cell phone company records to locate
the general area where Andrews's phone was last used, and then used a
cellular tracking device known under the brand name "Hailstorm"1 to
identify the address where Andrews's phone was believed to be located.

(0.47). 3 The Warrant Apprehension Task Force then went to the house and
asked for pennission to enter. Pennission was granted by the woman who
opened the door, (0.79), and Andrews was found sitting on a couch in the
home. (0.84). His phone was in his pocket. (0.89). Police then secured the
house and obtained a search warrant for the premises. A search incident to
that warrant revealed a gun, later shown to be the one used in the shooting,
in the cushions of the couch where Andrews was sitting.
Andrews moved to suppress all of the items recovered at the time of
his arrest, arguing that the use of a cell site simulator required a valid warrant,
that the May 5, 2014 order authorizing the use of a cell site simulator was
invalid, and that the items recovered after Andrews was found were therefore

1

Cellular tracking devices similar to the Hailstorm device go by a variety of
names, including "cell site simulators," "IMSI catchers," and "Stingrays."
While "Stingray" is often used to refer to any such device, it is actual a
specific, early model of cell site simulator.
3
For the sake of clarity, the State will refer to this transcript as 440._" and
refer to the transcript of the August 20, 2015 hearing on the Motion to
Suppress as 448._"

3

 all "fruit of the poisonous tree." (S.37). The State argued that the court order
was valid, that Andrews had no standing to challenge the search of the home
where he was found, and that the good faith exception to the exclusionary
rule applied. (S.27-28).
The court disagreed with the State, finding instead that the cellular
tracking device was "taking information from the phone" and therefore was
beyond what the court order authorized. The search warrant for 5032 Clifton
Avenue was, the court held, "just fruit of the poisonous tree of the illegally
obtained infonnation about the defendant's location." (S.50). The court
acknowledged the State was challenging Andrews's standing, but held that it
did not need to reach the question of standing because the search warrant was
invalid. (Id.). The Court further held that "the good faith exception doesn't
really apply here." (S.53).

ARGUMENT
I. THE MOTIONS COURT ERRED IN FINDING THAT
THE USE OF A CELLULAR TRACKING DEVICE TO
LOCATE ANDREWS'S PHONE VIOLATED THE
FOURTH AMENDMENT.
The court erred in its detennination that "the government violated the
Defendant's Fourth Amendment rights by essentially using the Hailstorm to
locate him at that residence." (S.50). It erred for at least two reasons. First,
the use of the cell site simulator is not a "search" in the Fourth Amendment
sense. Second, to the extent the use of the cell site simulator is a search, it

4

 was specifically authorized by a valid court order. The court's decision was
based upon both factually unreasonable conclusions about how the cell site
simulator worked in this case, and legally incorrect detenninations about
what constitutes a "search" and what was authorized by the court order in
this case.

A.

Standard of Review and Burden(s) ofProof.

When reviewing a motion to suppress evidence, this Court will
"consider only the evidence contained in the record of the suppression
hearing;" it does "not consider the evidence that was admitted at trial."
Moreover, it does "not engage in de novo fact-finding. Instead, [it] extend[s]
great deference to the findings of the motions court as to first-level fmdings
of fact and as to the credibility of witnesses, unless those fmdings are clearly
erroneous." Jones v. State, 213 Md. App. 483, 496 (2013) (citations and
quotations omitted). When making its ruling, the court "review[s) the
evidence and the inferences that may be reasonably drawn in the light most
favorable to the prevailing party[.]" However, the Court makes its "own
independent appraisal as to whether a constitutional right has been violated
by reviewing the law and applying it to the facts of the case. /d.
The factual findings of a lower court will be found to be clearly
erroneous
where, with respect to a proposition or a fact as to which the
proponent bears the burden of production, the fact-finding

5

 judge has found such a proposition or fact without the
evidence's having established a prima facie basis for such a
proposition or fact. The holding should be confmed to
situations where, as a matter of law, the burden of production
has not been satisfied.
State v. Brooks, 148 Md. App. 374, 398-99 (2002).

In a Fourth Amendment challenge to a search, the burden of proof
may shift over the course of the hearing. Initially, it is the defendant's burden
of proof to show that the Fourth Amendment is even implicated by the
complained-of state activity. "'On the threshold issue of Fourth Amendment
applicability[...], the burden of proof is clearly on the defendant to establish
that applicability." Fitzgerald v. State, 153 Md. App. 601, 662 (2003), aff'd,
384 Md. 484 (2004). See also Rakas v. Illinois, 439 U.S. 128, 130 n.l (1978)
(party bringing motion to suppress bears burden of showing own Fourth
Amendment rights at stake). Moreover, if the search is conducted pursuant
to a warrant, the search is presumptively valid, and therefore even if the
Fourth Amendment applies, the defendant must overcome the presumption
of validity. Once it is established, as it was in this case, that the police
obtained a search warrant, there is a presumption that the warrant was valid.
153 Md. App. at 625.
Moreover, courts reviewing a warrant do not undertake a de novo
assessment of whether there was probable cause to issue the warrant. Rather,
courts engage in a "deferential" review to determine only whether there was

6

 a "sufficient basis" for the warrant to issue. Massachusetts v. Upton, 466 U.S.
727, 733 (1984).
Here, the motions court disregarded both the appropriate standards of
review and the various burdens of proof. Moreover, as will be discussed
below, the motions court's legal errors were compounded by clearly
erroneous factual fmdings. As a preliminary matter, the motions court made
findings of fact regarding how a cell site simulator works which are incorrect
and unsupported by any evidence in the record.

B.

How the cell site simulator worked in this case.

When appearing before the court on Andrews's Motion to Suppress,
the parties opted to refer the court to the transcript of the June 4, 2015,
discovery hearing before Judge Charles Peters, rather than presenting live
testimony. As a result, the factual basis for the court's rulings must be
contained within the June 4, 2015 transcript, included in the record to this
Court as Exhibit 2 to the State's Motion to Reconsider (R.86).
Most of the technical information about how the Hailstorm device
works was presented through the testimony of Detective John Haley, of the
Advanced Technical Team. (0.45). Haley's presentation was necessarily
rather summary, because he was testifying in the context of a discovery
hearing, not for the suppression hearing. Haley explained that once a court
order is signed authorizing the disclosure of information by the cell phone

7

 provider, he obtains the GPS coordinates of the cell phone tower showing
most recent activity from the target's cell phone. (D.47). Anned with that
information, he takes the Hailstonn device to the area covered by that cell
tower and uses the machine to further refine the area where the phone can be
found. (/d.) The cell site simulator "acts like a cell tower," and waits to
receive a signal bearing the target IMSI. 4 (D.48).
The cell site simulator, Haley noted, does not extract infonnation from
the target's cell phone, (8.48); rather, it waits to receive a signal from the
target's cell phone containing only the IMSI. (D.50). While he agreed to
defense counsel "metaphorically" referring to the process as "peering in,"
Haley clarified that the process of a cell phone sending its identifying
information to a cell tower was indistinguishable from the process of a cell
phone sending its identifying information to a cell site simulator. (!d.)
Defense counsel's questions all arose from an unproven assumption that it
was the cell site simulator which was sending signals to the cell phone, but
Haley's testimony clarified that, in fact, it was the phone which sent signals
to the Hailstorm device- "our equipment acts just like a cell tower. So, it
draws the phone to our equipment." (D.53). When the device detects a signal
from the target phone, it notifies the operator the direction of the signal and

4

IMSI stands for International Mobile Subscriber Identity. Cellular tracking
devices such as Hailstorm are variously referred to as cell site simulators,
IMSI catchers, Stingrays, or "triggerfish."

8

 the relative signal strength, allowing the operator to estimate the probable
location of the phone. (0.51). The device is not used to capture any data kept
on the phone; it merely reads the 10 number regularly transmitted by
activated cell phones as part of their ordinary use. (0.50-51). It can only
detect phones which are turned on and which are not being used to make a
call. (0.53).
This testimony contrasts sharply with the factual determinations of the
suppression court. The suppression court judge based her ruling on her
determination that the device "goes through the wall of the house" and "into
the phone." (S.31). It does not. The cell site simulator detects the signal
emitted by the cell phone, just as a regular cell tower would. (0.54). The
suppression court's apparent belief that the device somehow sends a signal
into the home and reads the data on the targeted phone is not supported by
anything in this record, and is therefore·clearly erroneous.

C.

A warrant is not required to collect information
voluntarily shared with third parties.

What occurred in this case was not a search; Andrews failed to meet
his initial threshold burden of proving that the Fourth Amendment was
implicated in the use of a cell site simulator to locate his phone. The police
used data which Andrews voluntarily shared with third parties- specifically,
his cell phone provider- to locate his phone. Under the principles set forth

9

 in Smith v. Maryland, 442 U.S. 735 (1979), no Fourth Amendment search
occurred here.

Smith addressed a similar situation, albeit with slightly different
technology. In that case, the telephone company - at the request of police,
but without a warrant- installed a "pen register" which recorded the numbers
dialed from Smith's home phone. 442 U.S. at 737. The Supreme Court held
that the Fourth Amendment was not implicated when the police obtained
information voluntarily transmitted to third parties. "When he used his
phone, petitioner voluntarily conveyed numerical information to the
telephone company and 'exposed' that information to its equipment in the
ordinary course of business. In so doing, petitioner assumed the risk that the
company would reveal to police the numbers he dialed." 442 U.S. at 744.
Citing Smith for the proposition that a person has no reasonable
expectation of privacy in information he provides to a telephone company,
this Court has noted that "[c]ourts have drawn a distinction between the

contents of conununications and identifying information conveyed to an
Internet or cellular telephone service provider." Upshur v. State, 208 Md.
App. 383, 395 (2012). In Upshur, a police officer obtained the subscriber
information for Upshur's phone without first complying with Maryland's
Stored Communications Act. This Court held that such information was not
protected by the Fourth Amendment, and therefore its improper acquisition
did not trigger the Exclusionary Rule. !d. at 398.
10

 In addition to Smith, supra, four decisions of the Supreme Court are
particularly relevant in understanding why this is not a Fourth Amendment
search. In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court
upheld the use of an electronic beeper used to track an item in a suspect's
vehicle. The Court held that there was no reasonable expectation of privacy
in the comings and goings of a vehicle, since its course of travel was regularly
displayed to the public. 460 U.S. at 281-82. Similarly, here, one's cell phone
is constantly emitting "pings" (0.50) giving its location to the nearest cell
tower, and thus there can be no reasonable expectation of privacy in
information which is regularly and routinely transmitted for third-party use.
And for that reason, United States v. Karo, 468 U.S. 705 (1984), is
distinguishable. Karo also stenuned from the use of a beeper to track cans of
ether being used in the drug trade. 468 U.S. at 708. However, unlike Knotts,
in Karo police used the emission of signals from a private residence to form
the basis for a search warrant. /d. at 710. The Supreme Court found that
monitoring beeper signals inside a private residence constituted a "search"
for which a warrant was required, because Karo was unaware that the beeper
was present in the cans and had a reasonable expectation of privacy
concerning the location of private property that he had deliberately
withdrawn from public view. "Indiscriminate monitoring of property that has
been withdrawn from public view would present far too serious a threat to
privacy interests in the home to escape entirely some sort of Fourth

11

 Amendment oversight." /d. at 716 (emphasis added). But here, Andrews was
well aware that he had in his possession a cellular telephone which routinely
and regularly connected with outside cell towers, advising third parties of its
location. The whereabouts of a cellular telephone are not "withdrawn from
public view" until it is turned off, or its SIM card removed. Anyone who has
ever used a smartphone is aware that the phone broadcasts its position on the
map, leading to, for example, search results and advertising tailored for the
user's location, or to a "ride-sharing" car appearing at one's address. And
certainly anyone who has ever used any sort of cellular telephone knows that
it must be in contact with an outside cell tower to function.
Thus, that which distinguished Knotts from Karo also distinguishes
Andrews's claims from Karo's. Just as Knotts was presumably aware that his
vehicle could be observed by members of the public when he drove it on
public roads (and as Karo presumably believed that no one could tell when
he had cans of ether in his home), Andrews was aware, or should have been
aware, that an activated cell phone is constantly emitting a signal giving its
location to the outside world.
Thus, Kyllo v. United States, 533 U.S. 27 (2001), too, is
distinguishable. In Kyllo, the govenunent used thermal imaging devices to
detect heat emitting from private residences; excessive heat was indicative
of a marijuana grow operation./d. at 29. A sharply divided Court held that
the use of the thermal imaging device constituted a search: "Where, as here,

12

 the Government uses a device that is not in general public use, to explore
details of the home that would previously have been unknowable without
physical intrusion, the surveillance is a "search" and is presumptively
unreasonable without a warrant." !d. at 40. But in Andrews's case, the
government used a device which was, functionally, almost indistinguishable
from the cell towers that dot the landscape. And the "detail" the police
learned - that his phone was at 5032 Clifton Street - was already known to
third parties. Moreover, while the occupants of Kyllo's home in Oregon had
no ability to stop emitting heat, Andrews could have simply turned his cell
phone off to stop broadcasting its location.
United States v. Jones, 565 U.S. _ , 132 S.Ct. 945 (2012),

emphasized the above distinction between Knotts and Karo, thus supporting
the view that information which one knows to be available to the public is
distinguishable from that which one deliberately removes from the public
view. In Jones, police officers place a GPS tracking device on Jones's Jeep
and tracked it for four weeks. 132 S.Ct. at 948. The tracking of Jones's
vehicle constituted a search, the Court held, not because it disclosed the
public location of the Jeep, but because the installation of the tracking device
constituted a trespass to his property. /d. at 952. The tracking of the Jeep
itself was not, under Knotts, a Fourth Amendment "search. !d. at 953-954.
As noted above, here, the government was "tracking" an object which
Andrews knew was emitting signals giving its location at all times, and which
13

 Andrews voluntarily chose to keep activated and on his person. As with the
visual surveillance of a vehicle on a public highway, Andrews cannot raise
an objectively reasonable expectation of privacy in the location of his phone
under these circumstances.

D.

To the extent applicable, the tracking of the phone was
authorized by a court order.

Simply because a police activity does not violate the Fourth
Amendment does not mean that it should be exempt from any regulation or
policy considerations, of course, and thus in the wake of the Smith decision,
the federal government and most states (including Maryland) adopted
legislation which created a layer ofjudicial supervision over pen register and
"trap/trace" requests. 5 See 18 U.S.C.A. § 3121 (West 2015) (federal pen
register and trap/trace statute); Md. Code Ailll., Cts. & Jud. Pro. Art. § 104B-Ol et seq. (2013) (Maryland pen register an9 trap and trace statute).
Similarly, Maryland has enacted a statute which regulates the use of cell site
simulators, such as the one used in this case. Effective October I, 2015,
Section 1-203.1 of the Courts Article requires a court order to use a device
such as the Hailstorm, upon a showing of probable cause to believe that the
owner of the targeted phone has committed a crime, and that the use of the

5

A pen register records identifying numbers or signals sent from a particular
phone; a trap/trace records identifying numbers sent to a particular phone.
See Md. Code Ann., Cts. & Jud. Pro. Art. § 10-4B-01(c)-(d) (defining pen
register and trap and trace device).
14

 device will lead either to the collection of evidence relevant to the crime, or
to the apprehension of the individual. !d. at 1-203.l(b).
However, this statute was not in effect when Andrews was arrested.
As noted, since the activity in question is not a "search" in the Fourth
Amendment sense - there is no intrusion on any information in which
Andrews held a reasonable expectation of privacy, as his phone was
constantly emitting its identification number to nearby cell towers whenever
it was on - there were not yet any policy limitations on the deployment of
the Hailstorm device as it was used in this instance.
Nonetheless, the police did obtain a court order before using the
device. Behaving precisely as good policy would dictate, the police erred on
the side of caution and obtained a court order specifically authorizing the use
of a cellular tracking device to find Andrews's phone. Because § 1-203.1 did
not yet exist, the police obtained an order under the nearest analog - Section
10-4B-02 of the Courts Article, which, as noted above, is Maryland's pen
register and trap/trace statute. That law requires police to obtain a court order
before seeking the numerical data being transmitted to and from an individual
user and the telephone service provider.
To be sure, the court order described under that statute does not use
the words "warrant" or "probable cause." Rather, an application for an order
under the statute requires a ''[a] statement under oath by the applicant that
the information likely to be obtained is relevant to an ongoing criminal

IS

 investigation being conducted by that agency." However, in this instance, the
application for the court order went far beyond the requirements of the
statute. The application for the order requested "an Order authorizing the
installation and use of a device known as a Pen Registerffrap & Trace and
Cellular Tracking Device to include cell site information, call detail, without
geographical limits, which registers telephone numbers dialed or pulsed from
or to the telephone(s) having [Andrew's cell phone number]." (R.54). The
application then describes the investigation involving Andrews, including
how the police confirmed that the listed number was Andrews's number; that
other attempts to locate him and serve the outstanding arrest warrant were
unsuccessful; and that the police wished to "track/monitor Mr. Andrews' cell
phone activity to further the investigation an[d] assist in Mr. Andrews'
apprehension." (R.55). The application was for an order allowing the police
to employ surreptitious or duplication of facilities, technical
devices or equipment to accomplish the installation and use of
a Pen Register\Trap & Trace and Cellular Tracking Device[. .
.] and shall initiate a signal to determine the location of the
subject's mobile device on the service provider's network or
with such other reference points as may be reasonable
available, Global Position System Tracing and Tracking,
Mobile Locator tools, R.T.T. (Real Time Tracking Tool),
Reveal Reports, PCMD (Per Call Measurement Data) Report,
Precision Locations and any and all locations, and such
provider shall initiate a signal to determine the location of the
subject's mobile device on the service provider's network or
with such other reference points as may be reasonably
available and at such interval and times as directed by the law
enforcement agent/agencies service the Order.

16

 (R.57-58). The application also requested an order directing the cell service
provider to provide police with the cell phone ID number for Andrews's
phone, (R.58), prohibiting the service provider from alerting Andrews to the
existence of the ceiJular tracking device, (R.60), and directing the cell service
provider to provide the police with "cell site data simultaneous with all
communications over [Andrews's cell phone number]." (R.63). The
application concludes with:
Upon a finding that probable cause exists based upon the
information supplied in this application, that the said individual
is using the cellular phone number of [Andrews's number] for
criminal activity and that the application will lead to evidence
of the crime(s) under investigation.
Sworn and subscribed to before me this 5 of May, 2014,

[Is!]
Judge Barry G. Williams
Circuit Court for Baltimore City
(R.64). The order itself stated that "probable cause exists" to authorize the
use of a "Cellular Tracking Device[.]" (R.67).
This was, in other words, a sworn application for a court order
authorizing precisely what was done in this case, supported by a finding of
probable cause by a Baltimore City Circuit Court judge. Moreover, the Pen
Register and Trap and Trace statute does not contain an exclusionary
provision; to the extent that - prior to October 1, 2014 - the use of a cellular
tracking device required approval under§ 10-4B-04, the remedy for failing
to comply with the statute is not the exclusion of evidence. See Thompson v.
17

 State, 395 Md. 240, 259 (2006) ("'In the absence of statute or a rule

promulgated by this Court, the Circuit Court does not have the inherent
power to create an exclusionary rule of evidence under a statute that itself
does not have an exclusionary rule."); see also Upshur, supra, 208 Md. App.
at 399 (rejecting call for exclusion of cell phone information obtained in
violation of Stored Communications Act; "we will not create a suppression
remedy for Upshur where the legislature did not create one at the time it
enacted the statute.")
There was no Fourth Amendment Hsearch." There was no cellular
tracking device statute in effect at the time. There was an order from a neutral
magistrate, fmding probable cause to authorize precisely what was done in
this case; the closest applicable statute does not contain an exclusionary
provision. Thus, the court erred in excluding evidence in this case.

E.

Even if construed as a Fourth Amendment search, the
court order obtained by the police made such a search
reasonable.

Even if the use of the cellular tracking device in this case is considered
a "search," the court order that issued in this case made the search
presumptively reasonable. The court's finding that there were "material
misrepresentations" in the application for the court order is not supported by
any evidence. Moreover, the court applied the incorrect standard when
reviewing the order.

18

 1.

The order rendered
reasonable.

the

search presumptively

The Fourth Amendment does not require a warrant for a search. The
Fourth Amendment requires that searches be "reasonable." The Fourth
Amendment jurisprudence of the Supreme Court has, however, created two
general categories of searches under the Fourth Amendment - searches
pursuant to a warrant, which are presumptively reasonable, and searches
without a warrant, which are presumptively unreasonable, unless they fall
within one of the various exceptions to the warrant requirement
In this case, even if (disregarding Smith and Upshur) the use of the
cellular tracking device is considered a "search," it was undertaken pursuant
to a court order which was the functional equivalent of a warrant. 6 While it
is true that ordinarily, the standard for approving a pen register order may be
less than the probable cause standard required for a search warrant, in this
cases, there was an express finding of probable cause on the part of the judge
signing the order. (R.64, 67). This is what the Fourth Amendment requires.
The Constitution does not require a document entitled ''warrant" to fall

6

Including the cellular tracking device, there were three searches and one
seizure in this case. The use of the cellular tracking device was pursuant to a
court order indistinguishable from a search warrant. The search of the home
on Clifton Street was pursuant to a search warrant. The seizure of Andrews's
person was pursuant to an arrest warrant. The only even arguable Fourth
Amendment event which was not expressly authorized by a warrant was the
search of Andrews's person incident to his arrest- and the court properly
declined to suppress the results of that warrantless search.
19

 within the presumptively reasonable category of searches. What it requires
is
that the deliberate, impartial judgment of a judicial officer be
interposed between the citizen and the police. Over and again
this Court has emphasized that the mandate of the (Fourth)
Amendment requires adherence to judicial processes, and that
searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment subject only to a few specifically
established and well~delineated exceptions.
Katz v. United States, 389 U.S. 347, 357 (1967) (alterations, quotations, and

citations omitted). See also Johnson v. United States, 333 U.S. 10, 14 (1948)
(probable cause should be determined "by a neutral and detached magistrate
instead of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime."). "The animating philosophy is that balls
and strikes should be called by a neutral umpire or referee-in our context
by a member of the third branch of govenunent-rather than by a member
of the investigative team." Herbert v. State, 136 Md. App. 458,486 {2001).
It is the intervening judicial process, not the affixing of the word "warrant"
at the head of the document, which renders a police officer's subsequent
search presumptively reasonable. And that process was satisfied here.

2.

The suppression court did not extend proper deference
to the existing orders.

Given the reality of this finding of probable cause and signed order of
the court, the suppression court was not entitled to simply disregard its

20

 conclusion (or existence). Nor was the court entitled to substitute its own
judgment for that of the authorizing magistrate with regard to probable cause.
Instead, the court was only to determine if a "substantial basis" existed for
signing the order. This is a low threshold - less than probable cause, less,
even, than a "prima facie" showing. State v. Jenkins, 178 Md. App. 156, 174
(2008); see also Greenstreet v. State, 392 Md. 652 667-68) (2006) (reviewing
court does not engage in de novo review, but only determines if there was
substantial basis for issuing court's "practical and common-sense decision"
that there was, under totality of circumstances, "fair probability" of finding
contraband or evidence of crime).
The application for the order speaks for itself. There was an arrest
warrant for Andrews, which in and of itself established probable cause to
believe he was wanted for attempted murder. (R.55). His phone number was
found on a victim's cell phone. (/d.). As it happened, Andrews was also
working as a confidential informant for the police, and his police "handler"
confirmed Andrews's cell phone number. (/d.). The detective who sought the
warrant noted that "[i]n order to hide from police, investigators know
suspects will contact family, friends, girlfriends, and other acquaintances to
assist in their day to day cover affairs. Det. Spinnato would like to
track/monitor Mr. Andrews' cell phone activity to further the investigation
an[d] assist in Mr. Andrews' apprehension." (/d.) The application also
averred that "suspects typically use cellular phones until service is terminated
21

 or the phone becomes non-functional., (R.56). The application added that
"the information likely to be obtained concerning the aforesaid individual's
location will be obtained by learning the numbers) locations and subscribers
of the telephone number(s) being dialed or pulsed from or to the aforesaid
telephone and that such information is relevant to the ongoing criminal
investigation being conducted by the agency." (/d.).
This more than met the requirements of a warrant. From this, it is plain
that a warrant had issued charging Andrews with attempted murder, that
Andrews's cell phone itself was evidence of a connection between Andrews
and at least one of the victims, that police were in possession of Andrews's
cell phone number, and that by tracking the phone number, police believed
they could find both the phone and Andrews. The court's determination that
the order authorizing tracking was invalid is simply without any legal or
factual basis.
The court expressed concern that the application for the order did not
provide enough teclmical details about how the cellular tracking device
worked. (S.36). This is a non sequitur. There is no requirement that such
details be provided. If the issuing judge had any questions or concerns, of
course, he could have asked the applicant, or simply refused to issue the
order. Given the lengthy and detailed nature of the request in the application
- spanning 11 typed pages - it is unlikely that anyone could read the
application and be unaware that police were seeking authority to "install and

22

 use a Pen Register\Trap & Trace and Cellular Tracking Device to include
cell site information" (R.56)- that is, to attempt to use cell phone signals to
locate Andrews's cell phone. That the suppression court judge herself had
questions and concerns about the way in which the equipment operated is,
frankly, irrelevant. There was a substantial basis for the issuing magistrate to
make his finding of probable cause and sign the order, and therefore the
"search" - to the extent there was a search - was conducted pursuant to the
valid authorization of a "neutral and detached magistrate."
Lastly, it should be noted that even if there was some technical error
in obtaining the court order under the Pen Register and Trap/Trace statute,
exclusion is not the appropriate remedy. The exclusionary rule is a sanction
which only applies to federal Constitutional violations, not statutory
violations, unless the statute itself creates an exclusionary provision. The
Court of Appeals has declared that "[t]he exclusionary rule generally applies
only to violations of the Fourth Amendment." McFarlin v. State, 409 Md.
391, 410 (2009). This Court has also has noted that the exclusionary rule
"can apply only to a violation of federal law and not of state law and only to
a violation of the United States Constitution and not of a mere statute." In re

Special Investigation No. 228, 54 Md. App. 149, 163 (1983).
To the extent, therefore, that this conduct is regulated by statute, the
court erred in applying the sanction of exclusion. Therefore, its rulings
should be reversed.
23

 II. THE MOTIONS COURT ERRED IN FINDING THAT
ANDREWS DID NOT HAVE TO SHOW STANDING
BEFORE CHALLENGING THE SEARCH OF THE HOME
WHERE HE WAS ARRESTED.
The court's ruling on standing was, frankly, incoherent. Andrews was
not arrested in his home. The person who answered the door at 5032 Clifton
Avenue gave the police pennission to enter. (D.79). The State challenged
Andrews's standing to protest the search of someone else's home. (S.27).
The court simply refused to entertain the standing challenge, apparently
under the belief that standing is not an issue when the warrant authorizing
the search is invalid. (S.50). This is legally incorrect.
Standing is the ability to assert a reasonable expectation of privacy in
a particular area. Police obtained a warrant to search 5032 Clifton Avenue.
This was not Andrews's home, and someone other than Andrews answered
the door and gave police permission to enter in the first place. (D.79). The
State raised standing. (S.27). What should have happened next was that the
defense should have put on whatever evidence it had to establish Andrews's
standing to challenge the search - that is, his basis for claiming he had a
reasonable expectation of privacy in the contents of someone else's home.
"If the State timely challenges a defendant's standing, the law is clear
that, on this threshold issue, the burden is on the defendant to establish
standing." State v. Savage, 170 Md. App. 149, 175 (2006). This is true even
if the State intends, in its case in chief, to put forth evidence which may well

24

 have the net effect of demonstrating that the defendant has standing to
challenge the search; at the time of the suppression hearing, the inquiry is not
on what the State will present at trial, but what the defense will present at the
hearing to establish standing. Thompson v. State, 62 Md. App. 190, 201-02
( 1985). In Thompson, this Court quoted with approval R. Gilbert & C.
Moylan, Maryland Criminal Law: Practice and Procedure 291-292 (1983):
"Procedurally, it is clear that there is an initial burden on the
prosecution to raise the challenge to standing. If the State fails
to raise a timely challenge and the court goes on to reach the
Fourth Amendment merits, the State will be estopped from
raising the challenge at a later stage. If the prosecution does
raise the challenge, however, by even the most informal of oral
pleadings, it is then clear that the burden of proof is allocated
to the defendant to show his standing. The State has no
obligation to show nonstanding."
62 Md. App. at 202-203.
The court's finding that there was no need to prove standing makes
no sense. (S.SO). There can be no inquiry into whether a search violated
Andrews' s reasonable expectation of privacy until he first established that he
had a reasonable expectation of privacy in the place to be searched.
III. THE MOTIONS COURT ERRED IN FINDING THAT
THE SEARCH WARRANT FOR THE HOME WHERE
ANDREWS WAS LOCATED WAS INVALID.
The search which recovered the gun was conducted pursuant to a
warrant. The probable cause for the warrant was, to put it succinctly, that
Andrews was found in the home. (S.41-42). The motions court ruled that
because the police would not have known that Andrews was in the home but
25

 for its use of the Hailstorm device, and that the use of the Hailstorm device
violated Andrews's Fourth Amendment rights, the warrant was based upon
Hthe fruits of the poisonous tree" and therefore the search warrant for the
home was invalid.
This is incorrect. First, as argued above, the use of the Hailstorm did
not violate Andrews's Fourth Amendment rights. There was no Hsearch" in
the Fourth Amendment sense, and to the extent that the use of the device did
implicate any Fourth Amendment concerns, there was a court order
specifically authorizing what occurred in this case. Second, even if the use
of the Hailstorm device was improper, there was a valid arrest warrant for
Andrews at the time he was taken into custody. That arrest warrant issued
before the police considered using the Hailstorm device to fmd him. How the
police came to find him had no bearing on the validity of the warrant to
search the place where he was found.
The exclusionary rule does not negate the fact of an arrest - that is to
say, the body of an arrestee, his identity and his address, cannot be
''suppressed" due to a Fourth Amendment violation. H[A] person's name and
address are not excludable evidence and may not serve either as secondgeneration excludable 'fruits' or as the first-generation 'poisonous tree' that
may yield such fruits." Gibson v. State, 138 Md. App. 399,414 (2001). This
is especially true when the arrest is made pursuant to a warrant, and where,
accordingly, there is no question of any after-the-fact rationalization of the
26

 arrest. The presence of a fugitive wanted for attempted murder and suspected
of having shot three people two weeks earlier in a particular home provided
probable cause to search the home for evidence of the crime. Thus, the police
sought, and obtained, a warrant to search the home. There is, in the words of
this Court in Gibson, neither a "poisonous tree" nor any "excludable fruits."
The suppression court reasoned that because the use of the cellular
tracking device to locate Andrews was improper, and therefore police
awareness that Andrews was in the home where they arrested him was "fruit
of the poisonous tree" that could not support the issuance of an arrest warrant.
This is simply inconsistent with the legal principle that an arrest is not itself
suppressible if the method by which it was effectuated is later determined to
be improper, and that the exclusionary rule does not operate to put police in
a worse position than they would have occupied had the Fourth Amendment
violation not occurred. Indeed, the court itself seemed to recognize this
principle when it correctly ruled that the phone taken from Andrews's pocket
incident to his arrest would not be suppressed. (S.49). 7
The arrest here was not illegal. There was an arrest warrant for
Andrews, and police had the consent of the apparent owner of the home to

7

As noted above, the docket entries incorrectly indicate that the court
ordered both the phone (recovered incident to Andrews's arrest) and the gun
(recovered incident to a search warrant for the premises) were ordered
suppressed. Regardless of this Court's ruling on the issues related to the
seizure of the gun, its mandate should indicate that the docket entries be
amended to reflect that the phone was not suppressed.
27

 enter the home to take Andrews into custody. (See Steagald v. United States,
451 U.S. 204, 216 (1981) (arrest warrant may be served in home of another
only with consent of resident or other special circumstances). Andrews had
no reasonable expectation of freedom from detection and apprehension,
although he fervently may have hoped for it. See State v. Savage, 170 Md.
App. 149, 184 (2006) ("the subjective expectation of not being discovered
[is not] a sufficient predicate to establish standing.")
It simply makes no sense for the police, or the courts, to pretend that
Andrews' s apprehension did not occur in some physical space, and having
occurred in this particular physical space - 5032 Clifton Avenue- it makes
no sense to prohibit the police from undertaking an otherwise perfectly
reasonable search, pursuant to a warrant, of the home. Nothing about the way
in which Andrews was located negated the probable cause to believe that
there could be evidence of the crimes at that address. Andrews's person was
not the "fruit of the poisonous tree" because there already was an arrest
warrant for him, and the entry into the home was gained with the consent of
the lawful occupant. The court erred in suppressing the results of the search
warrant, separately and independent of its ruling on the use of the cellular
tracking device.

28

 IV. THE MOTIONS COURT ERRED IN FINDING THAT
GOOD
FAITH
EXCEPTION
TO
THE
THE
EXCLUSIONARY RULE DID NOT APPLY.
The Supreme Court has held that "suppression is not an automatic
consequence of a Fourth Amendment violation. Instead, the question rums
on the culpability of the police and the potential of exclusion to deter
wrongful police conduct." Herring v. United States,_ U.S._, 129 S.Ct.
695, 698 (2009). In United States v. Leon, 468 U.S. 897 (1984), police
conducted searches based upon a warrant later deemed invalid. The Supreme
Court refused to apply the exclusionary rule to the evidence recovered
pursuant to the invalid warrant. "[T]he exclusionary rule is designed to deter
police misconduct rather than to punish the errors ofjudges and magistrates."

id. at 916. The same principle should apply here. The court erred in refusing
to consider the good faith exception to the exclusionary rule.
In a good faith exception case, the inadequacy of the warrant is a
given. There is otherwise no need for the exception. Therefore, for the
exception to have any meaning, the standard for applying the good faith
exception must be even more deferential. "[T]he standard of factual support
required to be presented by the affidavit in order for evidence to be admitted
under the good faith exception is considerably lower than the standard for
establishing a substantial basis for a fmding of probable cause by a judge
issuing a search warrant." Marshall v. State, 415 Md. 399, 410 (2010). See

also Patterson v. State, 40 I Md. 76, 105 (2007) ("The application of the good
29

 faith exception does not hinge upon the affidavit providing a substantial basis
for determining the existence of probable cause"). Police officers need not
become reviewing magistrates each time they receive a signed warrant.
"[T]he officer has no duty to second guess the judge; the officer's duty is to
withhold from presentation an application for a warrant that a well-trained
officer would know failed to establish probable cause." Minor v. State, 334
Md. 707, 715 (1994).
Thus, even if one assumed that the court order authorizing the use of
the cellular tracking device were invalid, and even if one assumed that the
invalidity of this order rendered the ensuing search and seizure warrant
invalid, nonetheless the police officers acted in good faith in relying upon the
warrant when they conducted the search. The suppression court did not find
that the warrant was facially insufficient, or stale, or contained any
misrepresentations. Instead, it found that the warrant relied upon the location
of Andrews, which was determined through the use of a cellular tracking
device authorized by a court order - but that this court order was inadequate
because the application did not contain enough technical information about
the teclmology behind the cellular tracking device. This is good faith squared
- not only did the arresting officers relying in good faith on the court order
authorizing the use of the cellular tracking device, but the officers who
searched the home - who had no reason to believe the use of the tracking
device was improper- acted in good faith in applying for, and receiving, a
30

 search warrant for the premises. There is simply no officer misconduct to
deter in this case. The good faith exception to the exclusionary rule applies
in this case.

CONCLUSION
The State respectfully asks the Court to reverse the judgment of the
Circuit Court for Baltimore City.
Dated: November 30, 2015

Respectfully submitted,
BRIAN E. FROSH
Attorney General of Maryland
ROBERT TAYLOR, JR.
Assistant Attorney General
Counsel for Appellant

31

 CERTIFICATION OF WORD COUNT AND
COMPLIANCE WITH RULE 8-112.

This brief complies with the font, line spacing, and margin requirements
ofRule 8-112, and contains 7687 words, excluding the parts exempted from
the word count by Rule 8-503.

Office of the Attorney General
Criminal Appeals Division
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6422
rtaylor@oag.state.md.us
Counsel for Appellant

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