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Federal Appeals Court Rules Baltimore Police Department’s Aerial Surveillance Program Unconstitutional

Technology makes it easy for us to keep track of people at all times. But this also raises special challenges for criminal defense. After all, if the police can simply track everyone’s whereabouts at all times, do they even need a warrant?

In 2018, the U.S. Supreme Court held in Carpenter v. United States that police could not seize cell-site location information without a warrant in order to track a suspect’s movements by following his cell phone location. Chief Justice John Roberts, writing for the Court, said that such warrantless tracking violated a person’s “reasonable expectation of privacy in the whole of their movements.” Such expectations were effectively destroyed if the government could conduct “near perfect surveillance” of a person without first establishing probable cause of criminal activity.

Tracking Everyone’s Movements Violates “Reasonable Expectations of Privacy”

Based on Carpenter, the U.S. Fourth Circuit Court of Appeals recently held the Baltimore Police Department (BPD) violated the Fourth Amendment when it launched a now-abandoned pilot project to conduct warrantless aerial surveillance of Baltimore City. The project launched in 2019, when the BPD hired a private contractor to conduct “aerial photography to track movements related to serious crimes.” The planes could effectively take images covering an area of 32 square miles.

A number of community organizations sued the BPD, asking a federal court to issue an injunction stopping the surveillance program. A federal judge denied the injunction, prompting an appeal to the Fourth Circuit. Although a three-judge panel initially sided with the trial court, the full 15-judge Fourth Circuit later reheard the case and a majority ruled in favor of the injunction. Although BPD discontinued the pilot program, the Fourth Circuit said an injunction was still necessary, as the police retained data from its surveillance that could be used in ongoing criminal cases.

As for the surveillance program itself, the Fourth Circuit was blunt–it blatantly crossed the line established by the Supreme Court in Carpenter. The Fourth Circuit noted that the line separated “short-term tracking of public movements” and “prolonged tracking that can reveal intimate details through habits and patterns.” BPD’s surveillance program fell squarely in the latter category. As such, it invaded “the reasonable expectation of privacy that individuals have in the whole of their movements,” which required a warrant under the Fourth Amendment.

The Court noted this was quite different from, say, the police relying on security camera footage or stakeouts to track a particular suspect. Such “short-term” observation did not implicate fundamental privacy rights. In contrast, “capturing everyone’s movements outside during the daytime for 45 days,” as the BPD’s surveillance program did, was completely inappropriate. Even if the surveillance data did not identify specific individuals, the data collected could still allow the police to “deduce from the whole of individuals’ movements,” which effectively made it a “search” for Fourth Amendment purposes.

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This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 705-5137.