Lots of Cameras; Lots of Data

In China, they say the "authorities" can identify anyone, in any public place, in seconds. With a population of nearly 1.4 billion, that kind of state power is scary.  Can the United States be that far behind?

This real-time identification is the latest technological rage; brought to us by a high-tech process known as facial recognition. Like the geofence warrants profiled in our last post, facial recognition is getting lots of love from law enforcement as a highly-effective investigative tool to solve crimes.

Real-time facial recognition technology allows authorities to match any face, captured on a number of networked cameras, with an extensive and growing database. This is accomplished, by the way, in complete secrecy.

But what happens to our privacy when law enforcement can track all of our moves? Our privacy erodes to the point of extinction, that's what happens.

Detroit Police Department's Real-Time Facial Recognition Software

Here in Michigan, the Detroit Board of Police Commissioners has been attempting to articulate a facial recognition policy. Whether the Detroit Police Department is allowed to implement facial recognition in real-time; and whether such implementation will result in racial injustice for African-Americans are two of the hot-button issues surrounding the recently-acquired facial recognition software.

The DPD, with City Council approval, purchased the million dollar facial recognition software in January 2017. As soon as it was installed on the DPD's network, the scope of the software's implementation was the subject of a heated and protracted policy debate.

Police Chief James Craig, along with Detroit Mayor Mike Duggan, favor implementation of the software with certain safeguards. Chief Craig says that no one will be the subject of criminal charges based solely on facial recognition; that the software would not be used for real-time identification; and that officers transgressing these limits would be subject to disciplinary and possibly criminal sanctions.

As the Law Blogger was uploading this post, the Board of Police Commissioners approved the Chief's request for expanded use of facial recognition in a 8-3 vote. Now the expanded-use policy goes to the Detroit City Council for a ratification vote. With a top-ten big city murder rate, and enough unsolved case files to fill a good sized library, it is understandable why city leaders want broad implementation of the software.

In Detroit, ubiquitous security cameras, standard for most retail businesses, provide an excellent image feed for comparison to the DPD's photo database. The so-called "green light partnership" requires participating businesses in Detroit to maintain a minimum standard of lighting on their premises, and also requires installation of high-definition security cameras that feed directly into the DPD's computer network.

Most of the current green light partners are gas stations and liquor stores; high-profile crime targets. Soon, however, green light partners will include schools, churches and health care facilities. News stories about DPD's software also mention the potential for ubiquitous traffic cameras to be patched into the facial recognition software.

Obvious targets here in Detroit are the legion of repeat offenders whose images currently reside in the DPD's database. The database against which images are compared can easily be expanded from the basic mug-shot collection, to include social media images, Secretary of State images, and other government-maintained digital photo databases. And yes, there is a mobile-device-version of the software.

Biometric Privacy Rights

The DPD's implementation of facial recognition, and the similar -suspected- use of this technology by the Chicago Police Department, precipitated a review and assessment recently published by the Georgetown Law's Center on Privacy and Technology. Pilot face recognition programs are rolling-out in New York, Washington D.C. and Orlando.

Across the board, law enforcement officials issue assurances that the facial recognition software they are considering will not be used to monitor random citizens, immigrants, activists or people of color. Yet once implemented, the potential for serious Orwellian privacy invasion is certainly operational.

The Detroit chapter of the ACLU, of course, has been vocal in opposition to any adoption and use of facial recognition software, mostly on the basis such software has great potential to discriminate against people of color. Critics of the software claim it misidentifies people of color in a high percentage of cases. Perhaps for this reason, the City of San Francisco has banned all state use of this technology.

State Legislation

Here in Michigan, state legislators have introduced a bill prohibiting law enforcement from using any evidence obtained from facial recognition technology to enforce state law. The bill expressly calls for the exclusion of evidence so obtained as an express violation of the Fourth Amendment to the United States Constitution and section 11 of article 1 of Michigan's constitution.

This bill, of course, represents the other end of the spectrum. Placing an absolute bar to law enforcement's use of facial recognition technology will not likely pass any legislature, regardless of the political climate; such a bright-line bar is simply too restrictive.

A strong public interest exists in the privacy of our biometric data. One problem with facial recognition is that there is no way to "opt-out".

Illinois passed the nation's first biometric privacy legislation back in 2008. The Biometric Information Privacy Act proscribes the collection, use and dissemination of a citizen's biometric data without consent. This act, however, does not apply to state actors; only commercial entities.

Constitutional Concerns

Freedom of assembly under the First Amendment, and the Fourth Amendment's requirement that seizures be based on probable cause are fundamental rights. To the extent that collecting and transmitting our biometric data constitutes a seizure, minimum constitutional standards are sure to be developed.

Surprisingly, the Roberts Court is turning a studied eye toward not only selecting, but properly deciding some very interesting privacy cases. Last August, we blogged about the most recent such case: Carpenter v United States.

Carpenter was summarized in our post:

Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.

Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.

The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In Carpenter, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.

Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.

In the 5-4 opinion that granted Carpenter a new criminal trial, Justice Roberts declared that we do not waive our Fourth Amendment protections simply by taking a step outside of our homes. SCOTUS held that secretly monitoring and cataloging every single move across an appreciable span of time violated Carpenter's Fourth Amendment rights.

Given the growing list of U. S. cities bidding on facial recognition software, and considering the increasingly high-tech methods of data collection [i.e. geofence warrants, police drones, facial recognition] a case will come along soon that is ripe for a petition for certiorari before the SCOTUS.

Until then, our privacy rights continue to erode. Where we go, when we go there, and with whom, are now as much a part of our digital profile as our key-strokes on Internet-connected devices. Should the state have unfettered access to our profiles?

We Can Help

If you or a family member have been the subject of a warrant or criminal charge, based in whole or in part, on facial recognition technology, or on a geofence warrant, contact our law firm to have your options assessed.

Post #626
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By: Timothy P. Flynn

On Sunday Morning, I was reading the Detroit Free Press about a rough incident of vigilante justice made possible by Facebook.  As the social media experience accelerates, we can expect more cases like this one.

The Crime.  A 15-year old girl with Down Syndrome was allegedly raped in the Hubbard Farms neighborhood on Detroit's Southwest side on July 17th.  Word got out that the suspect was a 45-year old man, also from Hubbard Farms.

The Consequences.  First, Emails circulated through the neighborhood about the attack and the suspect's involvement, divulging his name and address.  Next, graffiti below the suspect's apartment window pronounced the Hubbard Farms resident a "Rapist".  Once outed by the graffiti and emails, neighbors demanded to know what should be done about the attack, and the alleged attacker, like right now.

An Unfortunate Delay.  For their part, the Detroit Police bungled getting off the dime on the case.  The subsequent investigation into the girl's attack led to a rape kit that included a Buccal swab from the suspect.  The DNA samples, however, were not transmitted to the Michigan State Police crime lab by the DPD for over a week.

We here at the Law Blogger know, from our own cases, that the State Police crime lab is seriously backlogged, taking between 6-months up to one-year before test results are returned.

A Facebook "Call-to-Action".  So in the month since the rape occurred, neighbors who see the alleged attacker still walking the streets, have become incensed with the slow-moving wheels of justice.  They know that the suspect has not been charged with any crime; at least not yet.

This delay in justice was not acceptable to some of the neighborhood residents who recently struck-up a FB campaign calling for street justice; one post even suggested a back-alley castration; others posted equally specific threats.

The Beatdown.  Apparently, due to the e-notoriety of the alleged attacker, he himself was attacked on the street by several members of the neighborhood, beaten with a baseball bat and kicked in the ribs and face according to witnesses.  He survived the beatdown and his family moved him to an unknown location for his own safety.  [Note: Although witnesses to the beatdown contacted the DPD, the police arrived too late, apparently otherwise engaged with a fatal shooting nearby.]

Guardianship Proceedings.  According to the Freep article, the suspect has a mental illness, was committed to a mental health facility last year, and has a Guardianship in the Wayne County Probate Court.

Managing over 75 guardianships in my own law practice as a Public Administrator, I understand the challenges and heartbreak of mental illness.  Mental illness, however, is not a legal defense to most crimes.  When our wards get charged and convicted of crimes, their mental illness is taken into account at the sentencing hearing, but it does not exonerate the criminal act.

Vigilante Justice.  Vigilante justice is not the answer, even when the wheels of justice turn slowly.  While justice delayed is truly justice denied, vigilantism points to a critical breakdown in our society, letting us know just how close chaos looms beneath the surface.

As a criminal defense lawyer, I understand the necessity of the prosecutor to collect evidence to prove the charges in a court of law.  Nearly always easier said than done, especially in Detroit.

In this case, the Wayne County Prosecutor will bring criminal charges against the alleged attacker just as soon as they have sufficient evidence to prevail in court; that's how the justice system works.

We here at the Law Blogger find it ironic that technological advances such as the proliferation of social media serve, at least in cases like this, to accelerate violence in a frenzied rush to judgment.

What if the mob gets it wrong; where is the appeal filed from that injustice?

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Davontae Sanford (left) &
Vincent Smothers

A few weeks ago, the New Yorker ran an article titled: Letter from Detroit: The Hit Man's Tale. The piece features a multiple shooting homicide from 2007, to which two different persons have separately confessed: a hit man, and a local kid, apparently trying to acquire some street credibility.

The self-proclaimed hit man is Vincent Smothers, doing 50-100 years at the Michigan Reformatory in Ionia, MI for a series of murders-for-hire to which he confessed, including the multiple shooting deaths of 4 victims on Runyon in Detroit.

His most infamous "hit", other than the Runyon job, was Rose Cobb, the wife of Detroit Police officer David Cobb, who ultimately hung himself in a jail cell.  Smothers confessed to more than a dozen murders, mostly drug dealers, but it was Ms. Cobb's murder that caused his conscience to come clean with law enforcement. Like Cobb, Smothers attempted suicide; unlike Cobb, he was unsuccessful.

The kid, Davontae Sanford, was sentenced to 37-90 years on 4-counts of second-degree murder for the same Runyon shootings.  Sanford was initially represented by the Frank Murphy Hall of Justice legend, Robert Slamenka, following his confession to the Runyon murders.

As defense attorneys, we here at the Law Blogger are still amazed why folks tender confessions to [serious] things that they did not do.  But when it comes to juveniles, they are often manipulated by their interrogators.

Well, in this case, the apparent consequence of Sanford's confession to the Runyon murders was that the DPD ignored the hit man's detailed confession to the same dirty deeds.  They had their man on the Runyon murders [Sanford], and "that-was-that."

According to Sanford's trial transcript, Wayne Circuit Judge Brian Sullivan pushed both sides to produce a plea agreement.  Sanford's plea, in hindsight, may have been rationale given Judge Sullivan's comments at his sentencing that, had he not pled, Sanford would have been sentenced to "the bullet", i.e. life in prison.

His appeal is currently pending with the Michigan Court of Appeals; an amicus brief has been filed by UM Law's Innocence Project, led by Law Professor David Moran.

For her part, Sanford's mother claims her son was pressured to tender the murder pleas by Slameka, his initial court-appointed attorney.  For his part, Smothers, the hit man, wishes Sanford well, thinks it is time for Sanford to go home, and personally longs for the day that, "I run across whoever will kill me."

Post Script:  Nearly a year since this post, the Court of Appeals has ruled that Smothers can testify at Sanford's trial court remand hearing.

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This case was straight out of Detroit.  Anthony Covington was lying next to his car at a gas station, shot in the stomach, bleeding out, but still alive and speaking with the Detroit Police.

Just before he died, he identified Rick Bryant as his shooter.  Bryant's subsequent conviction, based largely on the dying man's identification, went all the way to the SCOTUS and was decided last month.

Conviction affirmed; and in the process, one of the many exceptions to the hearsay rule is broadly expanded at the expense of accused persons everywhere.

The 6-2 decision in Michigan v Bryant erodes the confrontation clause of the Sixth Amendment requiring that all witnesses against an accused be brought to court.  Surprisingly, Justice Sotomayor wrote for the majority; Justice Giinsburg recused herself; and just as surprisingly, Justice Scalia wrote in dissent.

This case is significant to the extent that it allows police officers to testify at a trial about what an out-of-court (i.e. hearsay) witness said when that witness is no longer available for purposes of cross-examination and in-court confrontation.  Whether a dying man's declaration comes into evidence at a criminal trial depends on the "testimonial" nature of his utterance.

Prior SCOTUS decisions have addressed this problem.  Until now, two domestic violence cases established each end of the continuum.

In the well-known case of Davis v Washington, the declarant's statment -made during a 911 call- was admitted because the emergency was ongoing when the statement was made.  The presence of the emergency made the statement non-testimonial and thus, admissible in court even though the declarant was not present at the trial.

On the other hand, when a statement is made after the emergency is extinguished, as in Hammond v Indiana, then such a statement is clearly testimonial; that witness must be brought into court, or the statement is excluded from trial.  The witness in Hammond made her statement from the safety of her home during a subsequent police visit. 

The Bryant Court constructs a complicated two-perspective test to determine the "testimonial" nature of a dying man's declaration.  A reviewing court must now consider both the declarant's primary purpose in uttering the statement, along with the recipient's purpose in receiving the statement.  Say what??

Writing for the dissent, Justice Scalia, not usually a champion for the defense but an ardent supporter of the confrontation clause, thinks the question "is an absurdly easy one".  The murder victim from Detroit, in his last breath, was telling the Detroit Police who shot him so they could apprehend the shooter; not to stop any "emergency".  Therefore, the statement was testimonial in nature and should not be admissible in court according to Scalia's analysis.

Seems like each year SCOTUS issues at least one decision from Detroit and the surrounding area that has a local murder at issue.  Last year it was Warden Berguhis v Thompkins; this year it's Rick Bryant's case.

Kinda sad that we're known for the laws that get spawned from these murders.

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