The worst of Baltimore—historically high rates of violent crime and racially insensitive police misconduct—was on full display as a divided U.S. Court of Appeals turned back a challenge to an aerial surveillance program conducted by the Baltimore City Police Department (BCPD).  In Leaders of a Beautiful Struggle v. BCPD, No. 20-1495 (4th Cir. Nov. 5, 2020), community activists argued that monitoring the movements of virtually every person in the City violated their rights to free association and their reasonable expectations of privacy.  For the Court’s majority, the case required it to balance “the burden on constitutional rights against other law enforcement and public safety needs.” Id., Slip Op. at 16–17.  With homicide rates rising and case clearance rates falling, the majority struck that balance in favor of public safety.  Reading U.S. Supreme Court precedent differently, the dissent concluded that the surveillance program was both unconstitutional and reminiscent of “dragnet law enforcement tactics” historically used to target Baltimore’s Black community.  Id., at 46–47 (Gregory, C.J., dissenting).  

The majority set the tone early: “Baltimore sadly has experienced a serious recent rise in homicides … experienc[ing] a higher absolute number of murders than New York City, a city with fourteen times Baltimore’s population.” Id. at 2. To combat this epidemic, BCPD launched an experimental Aerial Investigative Research (AIR) program, designed to help locate suspects and witnesses to violent crime. Id. at 4. 

AIR used three airplanes to fly over the City for 12 hours a day.  Their cameras covered 90% of the City, but were voluntarily set at a resolution that recorded individuals and automobiles only as pixelated dots, revealing no identifying characteristics. There was no live tracking, and the photographs were accessed only when a shooting, robbery, or carjacking was reported. Technicians would then tag dots that appeared near the crime scene and track their public (i.e., outdoor) movements before and after the crime, generating a report that revealed the tracks of people and vehicles that went to and from the scene, and the places they visited before and after the crime.  BCPD would then marry that data with information obtained from other surveillance assets, such as license plate readers and its 800 ground-based CCTV cameras, to identify people and vehicles that were on scene when the crime was committed.  Id. at 3–4.  The six-month AIR experiment ended as scheduled  just as the Court issued its opinion, and is pending an independent study of its results.

The Court made quick work of the plaintiffs’ argument that AIR violated their First Amendment rights to associate freely with others: “[P]eople do not have a right to avoid being seen in public places… [a]nd even if that were not so, it is a stretch to suggest people are deterred from associating with others because they may show up as a dot under the AIR program.”  Id. at 21.  

For its Fourth Amendment analysis, the Court used the “reasonable expectation of privacy” test and noted that in this context, “the ultimate measure of the constitutionality of a government search is ‘reasonableness,’ [and that] courts are sometimes required to balance the degree of invasion of Fourth Amendment rights against the public safety interests furthered when assessing the reasonableness of a surveillance program.”  Id. at 9 (citations and internal quotations omitted). The majority observed that this was the approach taken by the U.S. Supreme Court when it upheld drunk driving checkpoints, border searches, DNA swabbing of arrestees, and other programs that involve warrantless searches and seizures. Id. at 9 

The Court rejected the argument that AIR violated plaintiffs’ reasonable expectation of privacy.  “A cardinal rule that emerges from the Supreme Court’s caselaw is that an individual has a limited expectation of privacy in his or her public movements.” Id. at 10. The majority relied on United States v. Knotts, 460 U.S. 276, 281 (1983), a case in which a unanimous court held that the warrantless use of an electronic tracking device to follow a car to a single location did not offend the Fourth Amendment, because one travelling public streets “has no reasonable expectation of privacy in his movements from one place to another.”  

The Leaders majority contrasted Knotts with United States v. Jones, 565 U.S. 400 (2012), where a plurality of justices found the warrantless use of a GPS device to track an automobile for 28 days did violate the subject’s reasonable expectation of privacy, concluding that “[t]he lesson from these cases is that short-term surveillance of an individual’s public movements is less likely to violate a reasonable expectation of privacy.”  Id. at 11.  As AIR involved only short term (12-hour) tracking of the outdoor movement of dots, and cannot track an individual dot from day to day, it “passed muster” under the Knotts/Jones analysis.  Id. 

The Court found additional support in a series of U.S. Supreme Court decisions that specifically authorized targeted, high-resolution aerial surveillance of individuals and their property, including areas inside the curtilage of a home, as long as the plane was in public airspace and the surveillance was done in a physically non-intrusive manner.  Id. at 12–13. “Unlike the aerial surveillance previously upheld, AIR photographs cannot even be used to identify specific items within backyards or a person’s identifying characteristics.” Id. 

Before reaching that conclusion, the majority had to clear one last hurdle:  Carpenter v. United States, 138 S. Ct. 2206 (2018).  In Carpenter, the Court held that the warrantless use of cell-site location information to track an individual through his phone for six days violated the target’s reasonable expectation of privacy.  The cellular technology provided the government with an average of 101 real-time location data points per day, yielding a “detailed, encyclopedic, and effortlessly compiled” record of one person’s every movement.  Id. at 14, quoting Carpenter, 138 S.Ct. at 220.  The majority concluded that because AIR was used to track outdoor movement only, after-the-fact and for only a portion of a day, it did not allow a “deep dive into an individual’s life and in fact can tell police very little about an identified person.”  Id. at 14–15.  It thus found Carpenter inapplicable.  

In dissent, Chief Judge Gregory argued that it was Carpenter and Jones, rather than Knotts and the aerial surveillance cases, that controlled. Taking a more nuanced view of these cases, the dissent wrote that “the question under Carpenter is whether the AIR program will…enable the police to deduce a comprehensive record of peoples’ past movements.” Id. at 33. Finding that providing such a record is the very purpose of the program, the Chief Judge concluded that AIR violated everyone’s reasonable expectation of privacy. Id. at 34. “The most problematic aspect of the AIR program is its dragnet nature, surveilling every individual’s public movements across Baltimore.”  Id. at 37, n. 11 (emphasis in original).

The Chief Judge was also concerned by the majority’s uncritical acceptance of BCPD’s representation that it would voluntarily keep the AIR camera resolution low enough to avoid recording identifying characteristics of individuals, even though it clearly had that capability.  For the Chief, this required “putting one’s head in the sand about the program’s capabilities.  That … capability, however, is what controls the Fourth Amendment analysis.”  Id. at 37–38.

Even though the majority concluded that AIR did not infringe on plaintiffs’ reasonable expectations of privacy, it nonetheless went on to balance that privacy interest against the government interest that AIR sought to promote. 

Plaintiffs have failed to persuade us that this program violates their constitutional rights. As cherished as constitutional rights are, the Founders understood that the Bill of Rights was not the only source of rights worthy of protection. They understood that all people are endowed with “certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.” 

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When hundreds of Baltimore residents are killed on their streets each year, their rights to life are not protected. When murders remain unsolved, their rights to liberty are not protected. When criminals can rob Baltimoreans at gunpoint with apparent impunity, their rights to property are not protected. All these rights are denied without due process, nothing remotely resembling the protections an accused will receive, rightly and deservedly, from the Bill of Rights. It is all so sad.

Id. at 23-24 (citations omitted).

The dissent had a different take on this aspect of the equation.

[D]ragnet law enforcement tactics are nothing new for many neighborhoods in Baltimore….The DOJ [has] found “a widespread pattern of BPD officers stopping and detaining people on Baltimore streets without reasonable suspicion that they are involved in criminal activity…” [a]nd “overwhelming” statistical evidence established that these strategies targeted predominantly Black neighborhoods and “produce severe and unjustified disparities in the rates of stops . . . of African Americans.”

Id. at 46–47 (citations omitted).

Responding directly to the majority’s concerns about putting the “unalienable rights” listed in the Declaration of Independence on par with the Bill of Rights, Chief Judge Gregory asked:

Under this line of reasoning, which rights—and whose rights—are regarded as expendable in the name of protecting life, liberty, and property? Why must the people of Baltimore, that the majority regards as so thoroughly victimized by crime and violence, “decide between their constitutional rights against unwarranted searches and seizures or forgo governmental protection that is readily afforded to other communities[?]”

Id. at 49 (citations omitted).

Under his interpretation of Fourth Amendment precedent, the Chief Judge would have struck a balance in favor of the privacy interests of all those who walk or drive the streets of Baltimore City. “This Court should not ‘[p]ermit unconstitutional intrusions into these communities in the name of protecting them.’”  Id. at 51–52 (citation omitted).

But for now, if BCPD chooses to continue the AIR program after its study period, every citizen of and visitor to Baltimore risks appearing as a pixelated dot in police photos. While the Court’s  decision concerned only the trial court’s denial of the plaintiffs’ request for a preliminary injunction, it did so in language that left little room for movement on the underlying constitutional questions.  In the absence of substantially different evidence at trial, or subsequent en banc review, the future of the program will have to be determined by City officials rather than the courts.  The eye in the sky may be here to stay.