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Drug Case Could Be Test for High-Tech Surveillance

Massachusetts’ highest court is being asked to consider whether police should have been required to obtain a warrant before they installed surveillance cameras that led to the arrest of 13 people.

by Julie Manganis, The Salem News / May 5, 2020
A surveillance camera outside the Northampton Police Department. The city banned the use of facial recognition technology in December. TNS

(TNS) — For several months in 2017 and 2018, the cameras sat on utility poles in Peabody and Lynn, Mass., quietly recording the comings and goings from five different homes.

Police and DEA agents were looking for evidence of a drug ring that was alleged to be selling fentanyl, heroin and oxycodone on the North Shore.

The investigation eventually led to the arrests of 13 people, the seizure of what is alleged to be at least two pounds of heroin and fentanyl and 2,400 oxycodone pills, and more than $400,000 in cash in May, 2018.

Now, the state's highest court is being asked to consider whether police should have been required to obtain a warrant, like the ones required when police want to listen in on phone calls, track cellphone locations or put a GPS tracker on a vehicle, before they installed the cameras on Swampscott Avenue in Peabody and four locations in Lynn.

Lawyers for Randy Suarez and Lymbel Guerrero of Peabody and Nelson Mora of Lynn, who are awaiting trial in the case, argue that police should have been required to get a warrant, regardless of past court rulings that warrants are not required to conduct surveillance of a public place.

The lawyers, Elliot Weinstein, Mark Miliotis and Stephen Judge, say that the prior court holdings do not reflect the significant technological advances since law enforcement began using the cameras.

They say that the massive compilation of data by law enforcement -- in the case of their clients, six terabytes worth -- without a warrant should be concerning.

"The ability to digitize and manipulate the seized information and images suggests that facial recognition, biometric identification and the capturing of things no person could ever anticipate a casual passerby seeing, let alone remembering or identifying, creates infinite future trespasses to our own person, image and information possible by the government," they argue.

Last year, they asked a Salem Superior Court judge to suppress evidence that was found as a result of those cameras. Judge Timothy Feeley denied the request, leading to an appeal.

The Supreme Judicial Court is scheduled to hear arguments in the case Tuesday morning.

It's a case that's also being watched by privacy and civil rights advocates, including the ACLU, which submitted a friend of the court brief in the case.

Law enforcement have used cameras on utility poles for decades, and courts have justified their use by pointing to the lack of any expectation of privacy once someone is outside their home.

The cameras were set up on poles that were on public sidewalks, and "could neither peer inside any home nor observe behavior that would not have been readily apparent to any passerby or neighbor," the Massachusetts Attorney General's office, which is prosecuting the case, wrote in its brief. "Unsurprisingly, courts have found no reasonable expectation of privacy on such facts in case after case, spanning decades."

But in their brief, the ACLU and two other groups, the Electronic Frontier Foundation and the Center for Democracy and Technology, say that in the face of advances in technology that allow cameras to zoom in on tiny details like license plate numbers and to collect the images and and then create a searchable database, that argument is "Orwellian."

"They give police previously unimaginable capabilities to monitor individuals for weeks or months, and to indefinitely store and search this detailed surveillance information," the advocates argue.

The attorney general is also arguing that even if the court takes that view, it should not penalize law enforcement by throwing out evidence, given that investigators were acting in good faith, based on the existing state of the law.

©2020 The Salem News (Beverly, Mass.). Distributed by Tribune Content Agency, LLC.

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