Maryland public defender’s office calls for immediate suspension of Baltimore police surveillance program

Maryland’s 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 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 law-abiding citizens without 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 the police department.

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 involving the shooting of an elderly couple, and one involving the assault of 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” of whether the police department, Persistent Surveillance Systems, or some other entity own 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 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 media reports that the footage being collected would be destroyed after a certain period of time, and 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.

Rector is a reporter for the Baltimore Sun.