State v. Copes
The Maryland high court decision applying the good-faith exception after detectives used a Hailstorm cell-site simulator under a probable-cause tracking order.
Executive Summary
Baltimore detectives investigating the murder of a young woman learned that one of her missing cellphones remained active. They submitted a sworn application seeking authority to use a pen register, trap-and-trace device, real-time cell information, and a “cellular tracking device.” A judge found probable cause and issued a 60-day order. Detectives used provider information and a Hailstorm cell-site simulator to locate the phone at Robert Copes’s apartment, where they found Copes and evidence connecting him to the victim and murder. Lower courts suppressed the evidence under State v. Andrews. Maryland’s highest court reversed. It declined to decide whether simulator use was a Fourth Amendment search or whether the order functioned as a valid warrant. Assuming both propositions against the State, the court held that suppression was unwarranted because the detectives relied on the judicial order in objectively reasonable good faith.
Key Holdings at a Glance
Murder Investigation and the Missing Phone
Detectives investigated the murder of a young homeless woman whose body had been found without cellphones associated with her. The investigation indicated that a phone ending in 4686 remained in use. Police believed locating it could identify the unknown killer.
The sworn application summarized the homicide, autopsy, missing phones, continued activity, and investigators’ belief that the suspect had taken and was using the device. The order authorized several locating methods and required provider assistance.
Provider data first placed the phone in a general area. The technical team then deployed a Hailstorm simulator, located the phone at an apartment on Penhurst Avenue, and encountered Copes. Police recovered the phone and evidence linking him to the victim and homicide.
The Pen-Register-Style Tracking Order
The Baltimore procedure had been drafted and approved by the State’s Attorney’s Office and police legal department and used since 2007. The application requested authority to install and use a “Pen Register/Trap & Trace and Cellular Tracking Device to include cell site information.”
It also requested permission to use surreptitious duplication of facilities or technical equipment, initiate signals, employ GPS and real-time tracking tools, obtain precision locations, and direct providers to supply technical assistance. The judge expressly found probable cause and authorized use for 60 days.
| Feature | What the Papers Provided | Continuing Risk |
|---|---|---|
| Target | Specified phone number | Phone was associated with victim, not yet a known suspect |
| Technique | “Cellular Tracking Device” and signal initiation | No meaningful explanation of Hailstorm operation |
| Showing | Sworn facts and probable-cause finding | Procedure derived from a statute requiring less than probable cause |
| Scope | Multiple real-time location tools | Broad method language and limited geographic detail |
| Time | 60 days | Length exceeded the brief deployment actually needed |
The Hailstorm Cell-Site Simulator
A simulator impersonates a cellular base station and causes nearby phones to interact with government equipment. Investigators can identify the target and use signal information to narrow its physical location. Unlike provider-generated records, this information may be created through direct government interaction with the phone.
The dissent emphasized that Hailstorm could forcibly connect the target phone and render it temporarily unusable. The application did not use the name Hailstorm or explain those mechanics, precision, effects, or collection involving nearby devices.
The Court Reserved the Search and Warrant Questions
The State conceded for purposes of the case that simulator use constituted a search. The court therefore declined to issue an advisory holding, particularly in a rapidly changing technological and legal landscape.
It also declined to decide whether the order functioned as a warrant. That was a close question, but Maryland had since enacted a specific real-time location statute, making recurrence of the older order format unlikely.
Why the Good-Faith Exception Applied
The majority applied the objective framework of United States v. Leon. Detectives did not proceed without a judge; they used an established process reviewed by agency lawyers, submitted a sworn application, described real-time tracking and signal initiation, and obtained an express probable-cause finding.
The issuing judge had not abandoned a neutral role. There was no allegation of knowingly false information. The affidavit was not so lacking in probable cause that reliance became unreasonable, and the order was not facially deficient merely because it lacked greater technical detail.
At the time of the operation, appellate law had not clearly established that simulator use was a search in all circumstances. Andrews was issued two years later. The majority therefore concluded that exclusion would not serve its deterrent purpose.
The Contrast with State v. Andrews
Andrews held that direct simulator use was a search and that the pen-register order there was not a valid warrant. Its reasoning stressed that simulator data had not been voluntarily conveyed to a provider and that the application did not give the judge enough technical information to impose meaningful limits.
Copes did not reject those constitutional concerns. Instead, it focused on timing and remedy: the Copes operation occurred before Andrews, and detectives had followed a repeatedly approved procedure. The majority rejected any categorical rule that simulator use under a pen-register-style order automatically defeats good faith.
Probable Cause and Particularity
The application connected the missing phone to the murder and explained why locating it could identify the unknown perpetrator. The order identified the specific phone number, named real-time location techniques, and limited use to 60 days.
The dissent nevertheless viewed the order as facially deficient because it failed to identify the area to be searched and inadequately described Hailstorm’s direct operation. The disagreement illustrates the difficulty of translating traditional place-based particularity to a moving phone.
The Dissent
Judges Greene, Adkins, and Hotten would have affirmed suppression. They agreed with Andrews that simulator use requires a warrant or an order satisfying warrant requirements unless an established exception applies.
The dissent concluded that this order did not qualify because generic terms such as “Cellular Tracking Device” and “Real Time Tracking Tool” were undefined, the application omitted Hailstorm’s operation, and the order lacked an adequately described search area. In its view, those facial shortcomings made reliance objectively unreasonable.
The dissent also treated the FBI-related nondisclosure environment as an obstacle to the full candor a neutral judge needs to assess a novel surveillance method.
Copes Under Current Law
Copes predated Carpenter v. United States and resolved a 2014 operation under an older Maryland procedure. Maryland had already enacted a more specific statute governing real-time location tracking by the time Copes was decided.
Current agencies should not treat the result as approval to use a pen-register form. Later doctrine, statutes, and policies generally favor simulator-specific probable-cause authority, fuller disclosure, minimization, and separate analysis when tracking reaches a home.
Practical Guidance for Agencies
Cell-Site Simulator Warrant Checklist
- Identify the offense, investigative objective, target phone, provider, and device identifiers.
- Establish probable cause connecting the phone to the suspect, victim, or evidence.
- Name the simulator or accurately describe its functional capability.
- Explain direct interaction with phones and distinguish provider-supplied data.
- Specify geography, precision, duration, deployment schedule, and stopping events.
- Address residential and other constitutionally sensitive locations.
- Prohibit content acquisition absent separate authority.
- Define non-target collection, filtering, retention, deletion, and audit rules.
- Require deployment logs, a judicial return, and disclosure of deviations.
- Seek renewed approval for material expansions or extensions.
Simulator Operations Checklist
- Confirm the target identifiers and authorization remain current.
- Record model, software, operator, settings, and enabled functions.
- Use the least intrusive precision and shortest deployment necessary.
- Separate provider data from direct simulator-derived information.
- Document every activation, location estimate, and tactical decision.
- Pause before technology indicates a protected interior space.
- Stop when the target is located or authority expires.
- Preserve target data and promptly delete non-target information as required.
- Report deviations, unexpected capabilities, or service interruption.
- Complete returns, discovery, audit, and after-action review.
Litigation and Discovery Checklist
- Obtain every application, affidavit, order, return, amendment, and provider request.
- Determine the exact simulator, capabilities, settings, duration, and precision.
- Compare generic tracking language with the actual technical operation.
- Analyze search status, warrant sufficiency, and remedy separately.
- Test probable cause, oath, neutrality, particularity, and scope.
- Identify when controlling law, statutes, and agency policies took effect.
- Review legal-unit approvals and the objective reasonableness of reliance.
- Separate location tracking from entry, arrest, seizure, and later searches.
- Examine non-target handling, service effects, candor, and discovery.
- Do not convert a historical good-faith ruling into prospective authority.
Frequently Asked Questions
What did State v. Copes hold?
The court held that the good-faith exception prevented suppression because detectives reasonably relied on a judicial tracking order.
Did Copes hold that a Stingray is not a search?
No. The court assumed a search for argument’s sake and declined to decide the issue.
Did the court uphold the order as a valid warrant?
No. It described that as a close question but resolved the case without deciding it.
What device did police use?
The Baltimore technical team used a Hailstorm cell-site simulator.
Did the application mention the technology?
It requested a cellular tracking device, real-time tracking, and signal initiation, but did not name or fully explain Hailstorm.
Why did good faith apply?
Detectives used an established, lawyer-approved process, submitted sworn probable-cause facts, obtained a judicial order, and acted before Andrews clarified Maryland law.
Can agencies rely on the same order today?
No. Current constitutional law, statutes, policies, and jurisdiction-specific requirements should govern present operations.
Primary Authorities and Current Law
Maryland high-court opinion applying good faith while reserving the simulator-search and warrant-sufficiency questions.
Read State v. Copes
Maryland intermediate-appellate decision requiring warrant-level authority for simulator use.
Read State v. Andrews
Supreme Court decision establishing the objective good-faith exception for reasonable reliance on a warrant.
Read United States v. Leon
Wisconsin functional-warrant decision discussed extensively in Copes.
Read State v. Tate
Later Supreme Court decision concerning warrant protection for historical CSLI.
Read Carpenter v. United States
Final Assessment
State v. Copes is best understood as a remedy case. The majority did not endorse warrantless simulator use or definitively approve the old tracking order. It concluded that suppression would not serve the exclusionary rule’s purpose when detectives reasonably relied on a probable-cause judicial order and an established procedure before contrary Maryland precedent existed.
For current practice, the case points toward greater candor, not less. The safest course is clear simulator-specific authority that enables the judge to evaluate how the equipment interacts with phones, where and how precisely it will operate, how long it will run, and how uninvolved users will be protected.