State v. Copes, 454 Md. 581

Background

In Feb 2014 Baltimore detectives investigating the murder of Ina Jenkins sought and obtained a court order under Maryland’s Pen Register statute to capture real-time cell-site information and to use a “cellular tracking device” for phone number -4686, linked to the victim but not recovered with her body.
Using provider CSLI and then a cell-site simulator (Hailstorm), detectives located the phone at 4014 Penhurst Ave., contacted occupant Robert L. Copes, recognized him from surveillance, and later executed search warrants that produced inculpatory evidence and DNA linking Copes to the victim.
Copes moved to suppress evidence and statements as fruits of an unconstitutional search because the cell-site simulator was used without a conventional search warrant; the Circuit Court granted suppression relying on the Court of Special Appeals’ decision in Andrews.
The Court of Special Appeals affirmed; the State appealed to the Maryland Court of Appeals, which granted review.
The Court of Appeals assumed, for this case, that use of the cell-site simulator was a Fourth Amendment search but resolved the case on the good-faith exception to the exclusionary rule, reversing suppression.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Copes)	Held
Whether use of the cell-site simulator was a Fourth Amendment search	Conceded for purposes of the case that it was a search but argued the Pen Register order sufficed or was at least reasonably relied upon	Argued the Pen Register–based order was not a constitutionally sufficient warrant for intrusive real-time tracking	Court assumed it was a search but did not decide definitively
Whether the Pen Register order functioned as a warrant	State: the sworn application and judge’s finding of probable cause made the order functionally equivalent to a warrant	Copes: the Pen Register statute requires only relevance, not probable cause or particularity for this technology; order therefore inadequate	Court declined to decide definitively but acknowledged state’s argument was strong
Whether the good-faith exception applies to law enforcement’s use of the simulator under that order	State: officers acted in objectively reasonable reliance on a court order and long-established practice; suppression would not serve deterrence	Copes: the order was facially deficient and the police could not reasonably rely on it to use intrusive, nondisclosed technology	Held: Good-faith exception applies — officers acted in objectively reasonable good faith; suppression not required
Whether suppression would be required to deter future violations	State: exclusion is disfavored; suppression is last resort	Copes: suppression necessary to protect Fourth Amendment rights and judicial oversight	Held: exclusionary rule inapplicable under Leon-style good-faith analysis; evidence admitted

Key Cases Cited

Smith v. Maryland, 442 U.S. 735 (pen-register/third-party doctrine)
United States v. Leon, 468 U.S. 897 (good-faith exception to exclusionary rule)
United States v. Jones, 565 U.S. 400 (GPS tracking and trespass/expectation-of-privacy discussion)
United States v. Knotts, 460 U.S. 276 (short-term public tracking not a search)
Karo v. United States, 468 U.S. 705 (beeper tracking inside home is a search)
United States v. Wilford, 961 F. Supp. 2d 740 (pen-register order used for real-time CSLI; order treated as sufficient)
State v. Andrews, 227 Md. App. 350 (Md. Ct. Spec. App.) (held cell-site simulator use was search; pen-register order insufficient)
Wisconsin v. Tate, 357 Wis. 2d 172 (849 N.W.2d 798) (order under pen-register statute upheld as warrant-equivalent for cell-site tracking)
United States v. Lambis, 197 F. Supp. 3d 606 (use of cell-site simulator exceeded warrant scope)
United States v. Patrick, 842 F.3d 540 (Seventh Circuit discussion of cell-site simulators; did not decide search question fully)