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Public defender: Baltimore's secret surveillance images could have exonerated innocent citizens

Public defender: Baltimore's secret surveillance images could have exonerated innocent citizens.

As a public defender in Baltimore reading the Department of Justice's Aug. 10th report finding that the Baltimore City Police Department engaged in a pattern and practice of violating constitutional rights, I felt a glimmer of hope. Maybe the BPD would finally be forced into better practices. Maybe this meant an end to secret surveillance and unconstitutional harassment of the people of Baltimore. My hope was short-lived. This week, it was revealed that since January, city police have been using a Cessna plane to transmit and store photographs of 32 square miles of the city at a time. The spy plane captures movements of the same citizens who were told to focus on healing from law enforcement injustices.

The surveillance technology was labeled Angel Firewhen used in Iraq and then rebranded in Baltimore with the friendlier label of Community Support Program. The founder of Persistent Surveillance Systems, the company that brought the surveillance technology to Baltimore, described the technology as "Google Earth with TiVo capability." One of the employees in the nondescript Community Support Program office could currently be sitting with a BPD officer, combing through your movements from last week. They could be noting where you go to church, what suspicious-looking package you carry and the color of your car. The DOJ report encouraged the BPD to engage in community policing that was grounded in relationship-building and "jointly solving problems," not secretly watching people from a Community Support Program spy plane.

My colleagues at the Office of the Public Defender and I first heard about the program from a Bloomberg News article. Unlike in Dayton, Ohio, where the Dayton police department and City Council held public hearings on whether to use Persistent Surveillance Systems and ultimately decided against it after community opposition, the BPD decided to institute this surveillance in secret. Our office did not know the BPD was working with the Community Support Program to collect data on our clients' movements and then using the data to charge our clients with crimes without disclosing the source of the evidence. For our innocent clients, we missed opportunities to subpoena exonerating footage collected by the spy plane. For our clients who were mistreated by officers, or whose versions of the truth differed from an officer's report, we failed to corroborate the truth because we did not know that a plane had captured footage of the city. The BPD, and by extension the Baltimore City State's Attorney's Office, had data that likely could have corroborated our clients' innocence in the face of an officer's inconsistent statement, but they decided to keep it a secret.

The BPD downplays the significance of their failure to tell people about the plane capturing photographs with TiVo-like replay ability. The BPD claims this aerial surveillance is a mere extension of the city's closed-circuit television, or CCTV, cameras. But, unlike the Community Support Program, CCTV cameras are visible orbs mounted on posts and buildings, and sometimes accompanied by a blue light. The list of each CCTV camera's street intersection, latitude, longitude and camera number is available to the public through a Baltimore City website. CCTV cameras do not venture above the height of a building, nor can they track our movements along a 32-square-mile path.

Moreover, the BPD has a history of secret surveillance, including the use of machines that act as cell phone towers to spy on the citizens of Baltimore. Like the aerial surveillance technology used by the Community Support Program, the BPD kept the use and prevalence of the cell site simulator machines a secret.

Transparency creates justice. When defense attorneys are told by our clients that an officer is lying about an encounter, we subpoena the CCTV footage. In a publicized 2014 case, Kollin Truss was charged with assaulting police officers. The truth was that Officer Vincent Cosom assaulted Mr. Truss. If Mr. Truss' assistant public defender had not subpoenaed the CCTV footage within the 28 days the BPD keeps the footage, then the court may not have believed in Mr. Truss' innocence.

Hiding the technology and surveillance systems used to solve crimes does not create a fairer justice system; it encourages officers to leave material facts out of reports and to lie about the real probable cause for locating someone, and it deprives people of access to evidence that could lead to their exoneration. If individuals knew about the documentation of their movements, they could subpoena the footage when an officer gives an untrue account of a police encounter.

The Baltimore City State's Attorney's Office and the BPD should be open about the law enforcement techniques being used. The BPD has a dangerous tendency to oversimplify its righteousness in its fight against the "criminal" darkness. At a press conference discussing the aerial surveillance, a BPD spokesman said: "The only people that should be concerned in the city of Baltimore are criminals." First of all, it is the rare person who has never gambled with friends for money, enjoyed a beer on a stoop, tried marijuana, or had alcohol before the age of 21 — all offenses for which my clients are regularly detained or arrested and hauled into Central Booking by the Baltimore City Police. Additionally, all of us are being surveilled, and our privacy is compromised. If this surveillance was only about fighting crime, then why is it being done in secret?

Law enforcement should be transparent. Secret spying can only lead to further distrust of the BPD at a time when the BPD's "community support" programs should involve more dialogue with the communities they serve. The DOJ Report explains that the BPD targets African Americans and this discrimination is "most pronounced for highly discretionary offenses," like trespassing and disorderly conduct. We cannot trust the BPD to determine that a group of people needs to be watched. If the BPD wants to move away from its history of unconstitutional policing in African American communities, it should not be secretly flying a photographing plane over those same communities.

Kelly Swanston is an assistant public defender in the Felony Trial Division of the Maryland Office of the Public Defender. Her email is KSwanston@opd.state.md.us.

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