A city judge turned back a challenge Monday to the Baltimore Police Department’s use of a controversial cellphone surveillance tool in a murder case, ruling that a suspect can’t complain about police deploying the device to find a stolen phone.
The case is the latest in recent months in which police disclosed use of a cell site simulator, which for years was shrouded in secrecy. Anthony Todd is accused of killing Kevin Gipson in March 2013, and police traced the victim’s stolen cellphone to Todd’s home. Detectives testified that the killing created an urgency that left no time to get a court order.
Circuit Court Judge Timothy J. Doory ruled that Todd, 47, had no ability to “complain about a phone that isn’t his, taken during commission of a murder.” Todd, whose trial will begin later this week, claims he found the phone on the porch of a vacant home the day of his arrest.
The judge’s ruling was a victory for law enforcement amid recent questions about the device, known as a “stingray.” The device is so secretive that the FBI has required police and prosecutors to sign a document agreeing not to discuss its use, even to judges or legislators.
The stingray works by mimicking a cellphone tower and tricking all phones within a range of up to a mile to connect with it. For years, police have referred to it in affidavits using terms such as “sophisticated technology,” and if questions arose, the nondisclosure agreement instructed prosecutors to drop cases rather than reveal detals about it.
But in recent weeks, officials have been opening up about the stingray and discussing its use in courtrooms. Assistant State’s Attorney Rita Wisthoff-Ito said Monday that privacy concerns about the stingray were unfounded.
“There’s a big issue being made of a device that does nothing but look for a signal out of a cellphone,” she told Doory.
Police outlined for the first time this month their usage of the stingray, pegging it at more than 4,300 times — a figure experts called a “huge number” compared to a trickle of disclosures in other cities.
At Monday’s hearing, Detective Michael Dressel said the device is used without court orders under urgent circumstances, and though he was unsure how often that happened, he called it “rare.”
David Rocah, a staff attorney with the American Civil Liberties Union of Maryland, said Todd’s case had very specific circumstances and did not address the general concerns expressed by privacy advocates over how authorities have been using the device.
“Does the use of a stingray absent exigent circumstances require a warrant? Our view is clearly yes, it does,” Rocah said. “It’s not a targeted search but a blunderbuss search of everything in range. All of that means to us that a warrant — a real warrant — is required.”
The hearing came in pretrial motions in the killing of Gipson, 43. Prosecutors say he and a friend were buying drugs in the 1100 block of Barclay St. from a man they knew as “Mike” when an argument erupted. Gipson was fatally shot.
Two days later, police realized Gipson had a phone that had been taken. A relative had called the phone, and a man answered, saying he had found it, police wrote in court documents.
Homicide Detective Shawn Reichenberg faxed a request to the agency’s Advanced Technical Team to find the phone. Though police say their policy is to get a court order, the circumstances — notably that a killing had occurred — caused them to go directly to the phone company for permission to get a general range of the phone’s location.
That led them to Todd’s home in the 4500 block of Pimlico Road in the Park Heights area.
Todd’s attorney, Richard Woods, said in court that his client does not match the initial description of Gipson’s killer, and that Todd picked up the phone after he found it ringing on the porch of a vacant home in his neighborhood. Woods said surveillance video shows other people walking past the house who seem to be looking in the direction of a noise.
Monday’s hearing focused on the stingray. Dressel testified that the device temporarily knocks out phone service to everyone in the area who is using the same subscriber as the phone they are looking for.
“If I was calling Aunt Mabel, my phone may be disconnected temporarily?” Woods asked, to which Dressel responded, yes.
Dressel said the stingray collects unique identifying information of the phones in range, but only stores the target and does not collect other data or listen to calls.
He said the criteria for obtaining location data without a warrant is broad, but the phone companies themselves require police to show imminent threat of death or bodily harm, “conspiratorial activities characteristic of organized crime,” or an imminent threat to national security interests.
An earlier version of this article misstated the number of times Baltimore police have used the stingray device.