Police Body Cameras Subject of Debate in Utah

police body camera debate

Photo: Glogger/Wikimedia Commons

Two recent cases in Utah where deadly force was applied by police officers have raised questions about the use of police body cameras. In both cases, it has been determined by the Salt Lake County District Attorney’s Office that the use of deadly force was justified. This decision was made largely as a result of the fact that both officers were wearing body cameras at the time of the shootings and it was possible to evaluate their actions. While many have wondered if a national policy regarding police body cameras could have alleviated problems in the aftermath of the Ferguson, MO, incident, others are concerned about the potential implications of such a requirement.

Police Body Cameras in Utah

Two separate cases in Utah have made considerable news: the fatal shooting of Dillon Taylor and nonfatal shooting of Timothy James Peterson. While footage remains to be released regarding the Taylor incident as the result of a pending investigation, the officer in the Peterson case has been cleared as a result of the body camera he was wearing and inflammatory statements made by Peterson previous to the shooting.

In a recent Utah poll, 83 percent of Utahns stated that they strongly or somewhat agree with police body cameras or some other device that would record the officers’ interactions with the public. Currently, 145 Utah officers are wearing the cameras with 114 more scheduled to get them in upcoming months. However, the state’s largest police department, the Unified Police Department, currently prohibits police body cameras, even if an officer has purchased one on his/her own.

According to Salt Lake County Sheriff Jim Winder, who oversees the Unified Police Department, he isn’t against them. He just believes they shouldn’t rush to equip every officer with a camera without making sure they have policies in place regarding privacy concerns and how the footage will be used.

“I think they promote better customer service,” Winder said. “I think they promote liability reduction for the agency. The reason to have them is not just to protect the cop.”

Pros and Cons of Police Body Cameras: Can Big Brother be a Good Thing?

Utah isn’t the only state mulling over the use of police body cameras. In a recent panel discussion on the topic, San Diego Police Chief Shelley Zimmerman stated that their goal was to have all 1,800 San Diego patrol officers equipped with body cameras by the end of 2015. However, as opposed to Utah where the footage from police body cameras is available to the public through the state’s public records law, California has chosen to only release records through the court system. Zimmerman said she would reconsider her stance if public safety was at stake, such as in the case of the Ferguson, MO, shooting. The public safety isn’t the only listed benefit of police body cameras. In addition to transparency, Zimmerman believes the use of body cameras can help restore public confidence in police.

Another benefit to the cameras directly links to the Ferguson incident, but a quick YouTube search of the term “racial profiling” indicates Ferguson wasn’t the only incident where law enforcement officers have been accused of this type of behavior. The behavior by some people to treating other people differently based on their race could be affirmed or acquitted regarding police actions if police body cameras were employed more regularly. Questions of abuse of power or unnecessary use of force could also be addressed. In September, the U.S. Border patrol stated that it would start testing body cameras on their agents as a result of numerous complaints.

Another benefit that was addressed at the San Diego panel was the fact that many situations that start as hostile become calmer once a suspect knows he/she is being filmed. Even though police officers are not required to notify an individual that they are wearing a body camera, many have found it to their advantage in tense situations. “[N]umerous officers have indicated they were glad they had them,” Zimmerman said.

While police body cameras can also be beneficial tools in officer training, one of the concerns regarding the cameras is that they would be used as part of performance evaluations. Another concern is that while many newer officers approve of using the cameras, many veteran officers are struggling with adapting to the technology, especially considering that many departments only require the officers to turn it on when dealing with individuals, something veteran officers may forget to do.

Other concerns relate to privacy and how the video might be used. For example, even though videos of failed sobriety tests are prevalent online, it is generally agreed that such video shouldn’t be used to make people look foolish. Also, this video could be used out of context. An example was used of an officer entering a home where child abuse may be reported. A house may look messy because of time of day or the child has been playing, but even though no abuse may be apparent, this type of video evidence of “unfit living conditions” might be misused in divorce proceedings.

The Future of Police Body Cameras in Utah

Sheriff Winder has raised other questions regarding the use of police body cameras that he feels need to be addressed before implementing a program with the Unified Police Department, questions such as how long video records need to be kept, how they are classified, and how editing will occur. Cost will be another issue.

In order to address some of these issues, Winder has assembled a panel to study the use of police body cameras, including police officers, members of the community, and at least one person who has admitted to being “anti-police.”

Winder believes it is best to thoroughly research this before implementation in order to avoid a civil lawsuit. He referred to an article from the U.S. Department of Justice which included a letter from the Police Executive Research Forum which stated, “The decision to implement body-worn cameras should not be entered into lightly…once the public comes to expect the availability of video records–it will become increasingly difficult to have second thoughts or to scale back a body-worn camera program.”

Utah Aiding and Abetting Case Examined by SCOTUS

Supreme Court Examines Aiding and Abetting

Photo: Miroslav Pragl/Wikimedia Commons

In a 2007 Utah case of a drug deal gone bad, the facts have been unclear since the beginning. However, what is known is that one of the defendants was charged with possessing drugs with an intent to distribute, possessing ammunition as a felon, and a firearms charge revolving around either discharging the weapon or aiding and abetting the use of one (although this delves into murky waters again, as it was unclear who actually fired the weapon or had knowledge of it).

These charges led to a sentence of 48 months in prison, plus an addition mandatory sentence of ten years for the firearms charge under Federal law. This conviction was appealed on the basis that the trial judge erroneously instructed the jury regarding the aiding and abetting aspect of the crime, but the Denver-based 10th Circuit Court of Appeals agreed with the trial court, and the case of Rosemond v. United States continued on to the U.S. Supreme Court in November of 2013.

Who’s on First, and Who Shot Whom? The Case at Hand

In 2007 in Tooele, Utah, Justus Rosemond, a previously convicted felon, and two others were attempting to sell a pound of marijuana in a deal set up by one of Rosemond’s accomplices. Upon arrival at the scene of the crime, the potential buyers inspected the marijuana and then assaulted one of Rosemond’s accomplices and ran. Shots from a 9mm were fired at the thieves, and the would-be-drug dealers gave chase.

Those are the only facts not being disputed. After this point, the details get fuzzy. Regarding the shots fired, testimony was unclear as to who did the actual shooting. Immunity was given to both of Rosemond’s accomplices in exchange for their testimony (but not to the convicted felon Rosemond), but while one of the suspects claimed it was Rosemond, the other said her back was turned and she didn’t see who it was–a change from her earlier statement. Even the testimony of a witness was inconclusive.

These details were considered irrelevant by the prosecution who tried Rosemond under one of two theories, either A) he was the actual shooter, or B) he was guilty of aiding and abetting the drug crime because he knew a gun was used. Notice the last part, “he knew a gun was used.” When the jury brought back a guilty verdict, it was a “general verdict,” meaning that they did not state under which theory they convicted him.

So What Actually Constitutes Aiding and Abetting?

Rosemond didn’t appeal any of the convictions except for the firearms charge which added a mandatory ten years to his sentence. The reason for this mandatory sentence can be found under U.S. Code 924(c), which essentially states that if a weapon is used in the furtherance of a drug crime, someone guilty of aiding and abetting that crime is as guilty as the person who used the gun.

However, in the response from the Supreme Court, they stated that in order to be found guilty of aiding and abetting, the government must prove “that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.”

This “advance knowledge” is different than the prosecution and judge’s direction to the jury that he would be guilty of the aiding and abetting if he “knew his cohort used a firearm in the drug trafficking crime.” The defense maintained that he needed to have acted intentionally “to facilitate or encourage” the firearm’s use.

When the case was taken to the 10th Circuit Court of Appeals, they agreed with the district court, even though they stated other Circuit Courts had found along the same lines as the defense. They justified this by stating that previous cases in their circuit had already established precedence in this matter.

While the prosecution stated that even if Rosemond didn’t have advanced knowledge that a gun would be used, the fact that the crime continued (via the car chase) after shots had been fired contributed to their argument that the Rosemond facilitated or encouraged the use of the firearm. According to prosecution, he knew that a gun was used, making him guilty of aiding and abetting.

There were various other arguments on both sides of the issue, and when the case was presented to the U.S. Supreme Court, both the defense and the judges raised various scenarios to establish whether or not aiding and abetting applied in this case.

Ultimately, the Supreme Court found that the circumstances surrounding Rosemond’s case did indeed satisfy certain requirements of 924(c), specifically that he acted with intent to bring about the drug trafficking crime and make it successful “with full knowledge of the circumstances constituting the charged offense.” However, they maintained that the instructions to the trial court jury were erroneous in this issue because “they failed to require that Rosemond knew in advance that one of his cohorts would be armed … to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime.”

In March of this year, the Supreme Court remanded the case back to the Court of Appeals to determine whether or not this objection was properly preserved and whether the error in instructions was sufficient to cause harm to the final verdict.

Cellphone Tracking: Not the Exact Science Federal Prosecutors Claim. Court Overturns Conviction based upon Questionable Cell Phone Tracking Data.

Cellphone Tracking Accuracy Questioned

Photo: Marc Johnson

In late 2009, the FBI formed a special unit dedicated to assisting in their investigations of crime utilizing the tracking and analysis of cellphone use. This agency, the Cellular Analysis and Survey Team (C.A.S.T.) has had many successes with their methods. The agency has trained over 5,000 state and local police investigators, and now they want to expand from their current 32 full-time agents. Unfortunately, besides criticisms of invasion of privacy, their methodology, especially when it comes to the area of cellphone tracking and location, has been proven flawed in many cases. One of the biggest cases to shine a light on these flaws deals with Lisa Marie Roberts, of Portland, Oregon, who was recently released from prison after serving almost twelve years for a murder she didn’t commit.

A Case of Flawed Cellphone Tracking

In 2004, Lisa Marie Roberts was told by her court appointed attorney that she should plead guilty for the 2002 murder of her girlfriend, Jerri Williams. Her attorney told her that state cellphone tracking evidence placed her phone within 3.4 miles of the park where Williams’ body was found. Her attorney told her there was no chance of acquittal.

According to a report from the Washington Post, Roberts was quoted as saying, “I just bawled. I didn’t do it.” However, she took the plea deal for a 15 year sentence. In April of this year, the guilty plea was thrown out by U.S. District Court Judge Malcolm F. Marshall. In addition to calling into question the validity of the cellphone tracking evidence [more information in the next section], witness testimony placed her more than 8 miles away from the scene of the crime, and new DNA evidence placed another suspect at the park. Roberts was released from prison at the end of May.

Cellphone Tracking: Misunderstood and Overused Science

Even though cellphone tracking has been used for years by prosecutors, experts are starting to come forward to say that the way the information is being used is flawed. While some are simply calling the technology interpretation “misunderstood,” some are even going so far as to call it “junk science.”

The idea behind cellphone tracking according to C.A.S.T. and prosecutors is that cellphone tower records can pinpoint a person’s precise location. The flawed logic is the assumption that when you make a call, it is automatically routed to the nearest cell tower. Ergo, if a crime has been committed, a search of those records can tell investigators if the suspect was in the vicinity of the crime. Here is a quick layman’s explanation of how cellphones actually work and how this information is being used in a flawed manner:

  • Step 1: Hit “send” on the phone. Depending on whether it is a rural or urban area, the phone sends out a radio-frequency signal to towers within a radius of up to twenty miles.
  • Step 2: A switching center evaluates the call, determines the destination and a software program “decides” which tower to connect your call based on a variety of factors.

 

It is this second step which causes discrepancies and invalidates the use of cellphone tracking as an investigative tool, according to experts. For example, the decision of which tower your call will use may not be the same even if you make repeated calls to the same destination in a short period of time. Sometimes a call will shift towers during the same call. This was another piece of exonerating evidence for Roberts. Apparently she had received another call moments before the one which placed her near the park. This first call came from a tower 1.3 miles away from the second call, but there was no way she could have traveled that distance in the 40 seconds that elapsed between calls.

In addition, sometimes the nearest tower may be overloaded (in the case of too many people using the tower, for example at a sporting event) or under routine maintenance, in which case your call is routed to a different tower. According to a report from The New Yorker, the only certainty is that your call will connect with a tower “somewhere within a range of roughly twenty miles.” Even if one figures half of that radius [10 miles] and the fact that most towers have three directional antennae, each covering a third of the circle, you still get an area of almost 105 square miles. Not very accurate science.

Cellphone Tracking Hits and Misses

While it’s true that this method isn’t to be trusted without question, there have been instances where investigators have been–and could potentially continue to be–successful. For example, most smartphones have G.P.S. which pinpoints your location to between 50 and 100 feet. Also, if you are under investigation, law enforcement agencies can “ping” your phone and give real-time locations.

A successful case in 2010 gave fuel to the fire driving the establishment C.A.S.T. In this case, Kelvin L. Jones, a rogue New York City police officer, staged a $1 million perfume heist. Jones was using a prepaid phone–a similar plan used by other criminals to try to mask their movements–but FBI agents were still able to create a map of locations following Jones’ movements as he pulled off the crime. This led to a successful conviction.

According to the chief of forensics for the Los Angeles County public defender’s office, Jennifer Friedman, “In every major case in Los Angeles, they use cell-tower information…It’s like fingerprints, it’s that common.” However, in a 2012 California murder case, a radio frequency engineer for AT&T testified that towers in the L.A. area have ranges of zero to 20 miles. Other experts have also added that towers can be affected by such things as topography and atmospheric conditions, and even though the FBI has claimed they run “drive tests” to confirm their data, these changing conditions make it nearly impossible to say with certainty that one day’s data matches a day being investigated in the past.

Courts are starting to agree. While there have been successes with cellphone tracking investigations, there have been numerous misses, besides the case of Lisa Marie Roberts. Enough so that many judges are no longer allowing the evidence or instructing jury members to weigh the evidence critically. Even where judges allowing the evidence, many juries, increasingly familiar with modern technology, are starting to figure it out on their own.

While the U.S. Supreme Court recently ruled that warrants must be obtained to search cellphones (which would apply to obtaining the G.P.S. chips from phones), there is currently no national protocol as to whether a warrant is required for getting call records and cellphone tower data.

[For more information on the Supreme Court decision regarding warrants to search cellphones, click on our post, Cellphone Privacy and Fourth Amendment Upheld by Supreme Court.]

In the case of Lisa Marie Roberts, to get back to the beginning, this case illustrates the importance of an experienced criminal defense attorney. Roberts’ court appointed attorney encouraged her to take the plea deal without even looking at the evidence or considering the implications or flaws. If you have been charged with a crime where the evidence deals with your cellphone, make sure you contact a criminal defense attorney who will do everything in their power to assure your rights.