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4th Circuit Rules Baltimore Air Surveillance Program Unconstitutional

BALTIMORE, MARYLAND - JULY 28: A person walks past a police car on July 28, 2019 in Baltimore, Maryland.  President Donald Trump has recently drawn criticism by calling the city of Baltimore  "disgusting." While the struggling city has a number of affluent areas, it has a stubborn crime problem and has one of the highest murder rates in the nation for a city of any size. (Photo by Spencer Platt/Getty Images)
By Laura Temme, Esq. on July 16, 2021 3:41 PM

A divided en banc Fourth Circuit recently held the Baltimore Police Department's Aerial Investigation Research (AIR) pilot program violated the Fourth Amendment. The six-month program involved flying planes over the city for 40 hours a week, aimed at battling crime through increased surveillance.

Background

The plaintiffs, grassroots community activists represented by the ACLU, tried to stop the AIR program before it started. But U.S. District Court Judge Richard D. Bennett denied their motion for an injunction in April 2020. The Fourth Circuit affirmed, and while the appeal for an en banc rehearing was pending the program ran its course.

The Baltimore Police Department moved to have the appeal dismissed as moot because the pilot program had ended and much of the data collected was already deleted. Before moving on to the merits of the case, the majority held that "[w]hile the planes have stopped flying, the fruits of the AIR program persist."

Majority Compares Surveillance to Citywide Ankle Monitors

The slim majority in the 8-7 decision held that the Supreme Court's decision in Carpenter v. United States "applies squarely" in this case. In Carpenter, SCOTUS held that the warrantless use of cellphone tracking data violated the Fourth Amendment.

"The AIR program records the movements of a city," Judge Roger Gregory wrote for the Fourth Circuit, which "violates a reasonable expectation of privacy individuals have in the whole of their movements."

Carpenter was part of a line of cases addressing a person's expectation of privacy in their movements and physical location. Finding that a cell phone's location data, over time, "provides an all-encompassing record of the holder's whereabouts," the Court in Carpenter held that accessing such data required a warrant.

Applying this reasoning to the Baltimore case, the Fourth Circuit majority compared the AIR data to attaching an ankle monitor to every person in the city. Opening such "an intimate window" into a person's activities violates the reasonable expectation of privacy, the court held.

Related Resources:

Supreme Court Interpretations of Probable Cause

Is It Legal to Videotape, Record Police?

'Policing the Police' Makes a Comeback

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