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05/01 POLICE CAMERAS : Illegal 'unblinking eyes' or smart tricks of the t..
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Police cameras on power poles: Illegal 'unblinking eyes' or smart tricks of the trade?

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05/01/2016 | 05:07am CEST

April 30--Portland police Detective Travis Fields suspected two auto shops in North Portland were paying cash for stolen cars and crushing them to sell for scrap metal, but he needed more evidence.

Fields asked an officer in the Drugs and Vice Division to plant video cameras on a utility pole across the street from the North Columbia Boulevard businesses to monitor what was going on.

Officer Christopher Watts ended up helping arrange for the installation of six cameras trained at the two businesses, three related homes and a residential street. They recorded 24 hours a day, seven days a week, supplying more than 6,000 hours of video from Sept. 3, 2013, through April 2014. The images helped police identify 110 stolen cars taken to the two businesses.

Now, the eight defendants charged with racketeering in what prosecutors dubbed a family-run scheme are asking a judge to throw out the evidence captured by the cameras. They contend the surveillance violated their privacy and amounts to an illegal search because police never got a warrant to put up the cameras. Defense lawyers also are asking the court to suppress wiretaps conducted later based partly on the video evidence.

If they're successful, the judge's ruling could unravel the state's case. His decision also could set a new standard in Oregon for deploying pole cameras and open the door for other legal challenges.

Portland police admitted in court that they never seek warrants to install pole cameras. Testimony over two days of hearings in March revealed little oversight or written documentation tracking their use.

For more than a decade, drugs and vice officers have placed hundreds of cameras on poles owned by Portland General Electric and other utilities throughout the metro area under years-old unwritten agreements with the companies.

In 2015 alone, police installed about 150 of the cameras, the Police Bureau reported in response to a request from The Oregonian/OregonLive. Roughly 90 of those were for Portland police investigations; the others were requested by other law enforcement agencies.

In the car-crushing case, defense lawyer Kristen Winemiller argued that police perched the cameras "high above public sidewalks, removed from common areas of public access" to provide surreptitious surveillance.

"No Oregon court or case has considered whether the continual use of pole cameras for an extended period of time, without judicial supervision, is constitutionally sound," she wrote in court papers.

Winemiller represents Tony Schneider Sr., owner of A-1 Light Truck & Van Parts and identified by investigators as the mastermind of the alleged scam.

"The defendant and other Schneider family members were subjected to constant observation at home and at work for over half a year," she wrote. "The video surveillance was technologically sophisticated and could pan and zoom at the will of the operator. It could hardly have been more intrusive as family members were together day and night, at home and at work."

Another defense lawyer representing Schneider's daughter-in-law who worked and lived with Tony Schneider Jr. at the other business, West Coast Car Crushing, said the cameras violated Oregon's constitutional protection against unreasonable search and seizure. He cited rulings from the U.S. Supreme Court and 9th U.S. Circuit Court of Appeals calling for limited approval of "sweeping" and "indiscriminate" video surveillance.

State prosecutor Kevin Demer countered that the camera evidence was no different than the view an ordinary person would have when driving by or standing across the street from the businesses or homes.

He urged the judge to compare still images from the camera video to photos taken by a detective standing in a dog park across the street from the two auto-crushing companies.

Demer also pointed out that A-1 Light Truck & Van Parts had its own cameras on site for security against metal theft. And he noted that the shops face state regulation and are subject to warrantless searches by police or DMV inspectors at any time.

"There is no expectation of privacy or right to privacy to the areas where dismantling is occurring," Demer wrote in court filings. "The defendants were hiding their criminal enterprise in plain sight for all the world to see."

*--

Fields was the lead investigator in the stolen car-crushing case when he ordered up the cameras in August 2013 from Watts, a 22-year bureau veteran.

"I just tell Chris Watts this is what I need to get done," Fields testified in March. Then, a sergeant would need to sign off on it, he said.

Watts typically would survey the site, ensuring the camera installation could be done safely, he said, "then myself and couple of other members of the team would go and install the device on a pole."

Police didn't initially fill out any paperwork for the first camera, Watts testified. By the time a second camera went up, Watts filled out one of the bureau's "Technical Operation Unit Request" forms for both cameras.

The generic forms cover a range of surveillance equipment that police might use, including GPS and phone tracking devices. They ask for a description of the case and cite an Oregon statute that prevents police from collecting or keeping information about political, religious or social groups unless they suspect a crime.

The forms also ask if a search warrant is needed. For pole cameras, police never check the box.

Under questioning by a defense attorney, Watts said the bureau didn't create the forms until 2013. Police, though, have been installing pole cameras in the city since roughly 2004 through an unwritten "standing agreement" with PGE. Before 2004, PGE would put up the cameras upon police request, he said.

PGE spokesman Stan Sittser said utility poles are in public rights-of-way and Portland police usually provide notification to the company after installing a camera.

"We care about community safety so we believe providing law enforcement access is reasonable," Sittser said.

The arrangement isn't in writing because it doesn't rise to the level of a business contract, he said, though PGE now plans to formalize the agreement in writing "because it makes good sense."

*--

Drugs and Vice Division officers positioned the first camera on a pole across from West Coast Car Crushing and A-1 Light Trucks & Van Parts on Sept. 4, 2013, using an unmarked aerial bucket truck. Later that day, police sent an email to PGE to inform the company, Watts said.

"Ever seek a court order for a pole camera?" defense lawyer Graham C. Fisher asked.

No, Watts said.

The bureau also has no written guidelines governing where to place the cameras and what to avoid filming, the testimony showed. Generally, officers are instructed not to put cameras on business premises or the property of a person under investigation. They're usually attached 18 to 25 feet off the ground, police said.

Police are "very conservative," Watts testified, about where they aim the cameras -- usually a door or driveway, but not windows -- and consult the prosecutor on the case about the recording.

In this case, Watts said he spotted a camera pointed at a window of a scale booth at West Coast Car Crushing a few weeks into the surveillance and advised changing the focus.

Fields said he made the change. "Officer Watts called and says, 'Hey, even though that's a business and everything, don't be doing that,'" he testified. "I said okay and then that was it."

"The general rule was just kind of wherever the public could see" was OK to film, Fields added.

Fields and another officer, Jeff Becker, reviewed the footage and had remote access to the cameras, meaning they could zoom in, tilt or pan. At first, they stored the video on a Police Bureau hard drive, but as the investigation progressed, the Oregon Department of Justice stored the images.

*--

With no binding Oregon court case on pole camera surveillance, Multnomah County Judge Thomas M. Ryan fired questions at the prosecutor and defense lawyers during three days of hearings.

He was trying to figure out where to draw the line for requesting a search warrant.

"Would it be OK for the state to put a camera on every utility pole in Portland?" Ryan asked.

"Depending upon what they're watching," Demer, the deputy district attorney, replied. "If it's open to the public. It's open to the public."

That "very scary prospect," Winemiller countered, should give citizens and the court pause. One camera was focused on the front of Tony Schneider Sr.'s home in a gated community on Hayden Island, she said.

"If it's the state's position that they can put up any number of video cameras all over town ... and capture whatever they happen to see from every pole, there really is a place for judicial input here at the front end," Winemiller said.

Calling the cameras an "unblinking eye," defense lawyers argued that police should have gotten a warrant from a judge before setting them up, citing the seven-month duration of the recordings, that police put the cameras on utility poles operated by a private company and that the general public wouldn't have had the same view.

"If I were to put out a folding chair and plop myself down in front of somebody's house with binoculars 24/7 that would be deeply offensive to people and violate a social norm," said defense attorney Ryan Scott.

He cited a 2012 U.S. Supreme Court ruling, U.S. v. Jones, that found a police agency's four-week tracking of a suspect's car using a GPS device violated the Fourth Amendment. The key question, Justice Samuel Alito wrote, was whether the surveillance "involved a degree of intrusion that a reasonable person would not have anticipated."

Demer responded that it's not uncommon for neighbors concerned about a suspected drug house on their block to keep watch with "eagle eyes," take photos of visitors and jot down license plate numbers of cars coming and going at all hours to help police investigate.

The state doesn't need to announce every camera, just as TriMet doesn't on its buses and trains, he said.

Defense lawyers played a video clip from West Coast Car Crushing surveillance showing a camera zooming in on Scott's client, Katrina Schneider, as she was scantily dressed, walking on the grounds of the auto yard. A detective said it was unintentional, caused by a delay as the camera's position changes by remote control. Katrina Schneider is Tony Schneider Sr.'s daughter-in-law.

Defense lawyers also cited a 2014 federal case, U.S. v. Vargas, in which law enforcement watched a suspected drug dealer's house in rural Washington for more than six weeks with a camera nailed to a utility pole 100 yards away. A federal judge tossed evidence gathered from the camera, ruling that such continuous use of a concealed camera required a search warrant.

Judge Ryan noted that Oregon case law allows low-level aircraft to pass over a property for observation. "Does it matter if it comes from a pole camera or from a plane?" he asked.

Demer cited other case law that bolstered his stance, including a 2014 federal finding that a pole camera positioned for almost five months to see over barriers blocking a street-level view of an Ohio commercial property didn't constitute a search.

The prosecutor also argued that even though some of the Schneider family members slept at the business properties, the buildings are in a heavy industrial zone with no residential protections. And the camera trained on Tony Schneider Sr.'s Hayden Island home was from a public street outside the gated community, he said.

"To protect his right to be free from government scrutiny, Tony Sr. should have built a shell around his house?" the judge asked.

"Absolutely," Demer replied, drawing guffaws from some of the Schneiders.

"The defendants are unable to cite a single case that holds that law enforcement personnel are not permitted to make the same or similar observations that a citizen would have from a legal vantage point," Demer said.

The judge may rule on the camera challenge as early as next week.

-- Maxine Bernstein

___

(c)2016 The Oregonian (Portland, Ore.)

Visit The Oregonian (Portland, Ore.) at www.oregonian.com

Distributed by Tribune Content Agency, LLC.

© Tribune Content Agency, source Regional News

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