Halt de­manded to city air surveil­lance

Pub­lic de­fender wants hear­ings, ac­cess to data

Baltimore Sun - - FRONT PAGE - By Kevin Rec­tor

The state Of­fice of the Pub­lic De­fender has asked the Bal­ti­more Po­lice De­part­ment to stop film­ing cit­i­zens from the sky un­til the pub­lic is briefed on the pro­gram and de­fense at­tor­neys are given ac­cess to the footage.

The pub­lic de­fender also wants to know how ev­i­dence gath­ered by the re­cently dis­closed aerial surveil­lance pro­gram has been stored, ac­cessed and used in the pros­e­cu­tion of crim­i­nal de­fen­dants.

The of­fice said the pro­gram should be shelved un­til there are “in-depth con­ver­sa­tions” about how it works, and po­lice should stop an­a­lyz­ing footage un­less they have “prior ju­di­cial au­tho­riza­tion in the form of a search war­rant or equiv­a­lent court or­der.”

Bal­ti­more Deputy Pub­lic De­fender Natalie Fine­gar made those re­quests in let­ters de­liv­ered Mon­day to Po­lice Com­mis­sioner Kevin Davis and Bal­ti­more State’s At­tor­ney Mar­i­lyn J. Mosby.

“We are re­quest­ing that this surveil­lance pro­gram be sus­pended un­til such time as pub­lic hear­ings can be held and a clear av­enue of dis­cov­ery and ac­cess to data by de­fense at­tor­neys is es­tab­lished,”

Fine­gar wrote to Davis.

She asked Mosby to join the pub­lic de­fender’s of­fice in the re­quest that the pro­gram be halted un­til a “clear mech­a­nism” for han­dling the footage as ev­i­dence is es­tab­lished.

Fine­gar wrote that it is “im­per­a­tive” that de­fense at­tor­neys be given ac­cess to the footage, which she said could help to ex­on­er­ate their clients.

T.J. Smith, a po­lice spokesman, said po­lice of­fi­cials were “in the process of re­view­ing and re­spond­ing to” the let­ter to Davis.

Mosby re­sponded Mon­day af­ter­noon with two let­ters of her own — one to Fine­gar, in which she called her con­cerns “le­git­i­mate,” and one to Davis also de­mand­ing an­swers.

Mosby’s of­fice has pre­vi­ously said it was made aware of the pro­gram only a cou­ple of weeks ago.

“Un­for­tu­nately, I too just re­cently be­came aware of this pro­gram and surveil­lance tech­nique; how­ever, I’d like to as­sure you of my firm com­mit­ment to ful­fill­ing all po­ten­tial dis­cov­ery obli­ga­tions” un­der the law and the state’s pro­ce­dural rules, Mosby wrote to Fine­gar.

Mosby asked Davis to send her the dates and times when the surveil­lance oc­curred and a list of the crim­i­nal cases in which the surveil­lance footage was used. She also asked that all of the footage “be pre­served un­til fur­ther no­tice.”

“It is crit­i­cal that I be given ac­cess to this in­for­ma­tion im­me­di­ately as any de­lay may im­peril ac­tive crim­i­nal pros­e­cu­tions,” Mosby wrote.

Po­lice ac­knowl­edged last week that a pri­vate donor had paid a pri­vate com­pany to con­duct aerial surveil­lance on the de­part­ment’s be­half from a small Cessna air­plane fly­ing about 8,000 feet above the city.

Ohio-based Per­sis­tent Surveil­lance Sys­tems has con­ducted about 300 hours of aerial surveil­lance since Jan­uary. Its cam­eras film about 32 square miles of the city at a time.

Po­lice said last week they were go­ing to con­tinue the pro­gram for sev­eral more weeks and then re­view it to de­ter­mine whether it is ef­fec­tive in fight­ing crime. Davis promised “a ro­bust and in­clu­sive com­mu­nity con­ver­sa­tion in the event that we con­clude it can im­prove pub­lic safety in Bal­ti­more.”

Ross McNutt, owner of Per­sis­tent Surveil­lance Sys­tems, has said the res­o­lu­tion of the footage is too low to al­low po­lice to iden­tify in­di­vid­u­als be­low.

But civil lib­er­ties ad­vo­cates have said the surveil­lance of huge num­bers of lawabid­ing cit­i­zens with­out ob­tain­ing war­rants vi­o­lates their rights..

Mem­bers of the City Coun­cil, who said they were un­aware of the pro­gram un­til it was dis­closed last week, have said they will hold spe­cial hear­ings to de­ter­mine why the pro­gram was not dis­closed.

Mayor Stephanie Rawl­ings-Blake said she was not aware of the pro­gram at its in­cep­tion, and be­came aware of it only re­cently.

She has backed the use of the tech­nol­ogy since as an in­no­va­tive step by po­lice.

Fine­gar said the scope of the surveil­lance is such that the footage could cap­ture vast num­bers of al­leged crimes, mak­ing it dis­cov­er­able ev­i­dence, which must be dis­closed to de­fense at­tor­neys re­gard­less of whether pros­e­cu­tors plan to use it at trial.

Pros­e­cu­tors say they are re­view­ing the use of the surveil­lance footage in five open crim­i­nal cases but do not know how many other cases it was used in.

McNutt said his an­a­lysts have cre­ated “in­ves­tiga­tive briefs” in at least 102 cases.

Only two cases in which the surveil­lance sys­tem was used have been dis­closed pub­licly.

One in­volved the shoot­ing of an el­derly cou­ple, and the other in­volved an as­sault on an off-duty po­lice de­tec­tive who had been in an ac­ci­dent with a dirt bike. The use of the surveil­lance pro­gram was not dis­closed in the state­ments of prob­a­ble cause for ei­ther of the de­fen­dants ar­rested in those cases, ac­cord­ing to a re­view of the doc­u­ments.

Fine­gar’s let­ter to Davis in­cluded a list of nine spe­cific re­quests:

A list of dates and times that surveil­lance was con­ducted.

That all data gath­ered un­der the pro­gram be pre­served.

A “clar­i­fi­ca­tion” on whether the po­lice, Per­sis­tent Surveil­lance Sys­tems or some other en­tity owns the footage.

The “re­ten­tion pro­to­col” for the pro­gram’s data.

Any “poli­cies, reg­u­la­tions or agree­ments en­tered into be­tween the Bal­ti­more City Po­lice De­part­ment, Per­sis­tent Surveil­lance Sys­tems or any other pri­vate or pub­lic en­tity re­gard­ing the es­tab­lish­ment or op­er­a­tion of this pro­gram.”

Any in­ter­nal “poli­cies or reg­u­la­tions re­gard­ing the es­tab­lish­ment or op­er­a­tion of this pro­gram.”

Any “train­ing pro­to­cols for civil­ian or po­lice de­part­ment em­ploy­ees” re­lated to the pro­gram.

Any war­rants or court or­ders “au­tho­riz­ing the anal­y­sis of data col­lected” by the pro­gram.

Any “le­gal au­thor­ity” that po­lice or Per­sis­tent Surveil­lance Sys­tems are re­ly­ing on to op­er­ate the pro­gram.

Fine­gar wrote that the pub­lic de­fender’s of­fice en­joys an “open and cor­dial re­la­tion­ship” with po­lice and pros­e­cu­tors, but added that the surveil­lance pro­gram “presents huge Fourth Amend­ment and Due Process im­pli­ca­tions” for crim­i­nal de­fen­dants in Bal­ti­more that must be ad­dressed as quickly as pos­si­ble.

“If we can­not re­ceive this in­for­ma­tion and be guar­an­teed of the ces­sa­tion of this pro­gram un­til such time as it can be con­ducted openly with full dis­clo­sure in place, we must pur­sue reme­dies in court in an ex­pe­dited fash­ion,” Fine­gar wrote to Davis and Mosby.

In her let­ter to Mosby, Fine­gar cited news re­ports that the footage be­ing col­lected would be de­stroyed af­ter a cer­tain pe­riod of time.

She said the pub­lic de­fender’s of­fice would file mo­tions to pre­serve any ev­i­dence col­lected by the pro­gram in all cases in which the al­leged crimes oc­curred while the surveil­lance plane was oper­at­ing.

“We ask for your sup­port and co­op­er­a­tion with re­gards to this mo­tion,” Fine­gar wrote.

“As soon as we re­ceive clar­i­fi­ca­tion on what time pe­ri­ods the surveil­lance was gath­ered, we will nar­row our mo­tions to those dates and times.”

Fine­gar said Mosby’s re­sponse was “a start in play­ing cleanup” of a pro­gram that should have been dis­closed be­fore it be­gan.

She said the Po­lice De­part­ment still has a lot of ex­plain­ing to do.

“We are play­ing catch-up at this point,” she said.

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