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A Wilmington, Del., police practice of photographing people detained during searches for drugs and weapons even if they weren’t arrested has raised the hackles of defense lawyers and civil libertarians. Critics of the program have accused the city of putting the pictures and names in a database of people the police believe are likely to commit a crime in the future — a charge the city denies. “It sounds to me like racial profiling repackaged,” said Stephen Schulhofer, who teaches criminal law at the New York University School of Law. Neither the American Civil Liberties Union (ACLU) nor the office of public defender have taken action on the practice, but they are monitoring it and may make a claim that it’s a violation of the Fourth Amendment’s illegal search provision. “We think it’s a clear constitutional violation,” said Drewry Fennell, executive director of the ACLU in Delaware. “The photos are inherently an invasion.” The city defends the practice. “Do you have a reasonable expectation of privacy as to your face in public?” said assistant city solicitor Aaron Goldstein. “The Supreme Court says no.” The controversy centers around a program known as “corner deployment units” by the police and “jump out squads” on the street. It uses two police squads, with up to 10 officers, to rush to an area where they believe there is illegal activity and detain suspicious people in the area. It was enacted in June to combat high drug activity in certain neighborhoods. After detaining and searching people, the officers photograph them, including those who were not arrested or those who were charged with loitering rather than possession of drugs or weapons. Goldstein says there is no database, although the photos are being used for ongoing investigations of a given corner. The mayor’s office said that 588 people have been detained since the operation began in June. Of those, 471 were arrested but the other 117 were also photographed. The police detainment is known as a “Terry stop,” after the 1968 U.S. Supreme Court decision Terry v. Ohio, 392 U.S. 1 (1968), that allows officers to stop, question and frisk people they have a “reasonable suspicion” may be involved in criminal activity. The stops that result in photographs can also come as a consequence of the city’s anti-loitering law, which prohibits people from hanging out in front of stores if they are not doing business. The ACLU’s Fennell said that her office initially received reports that the “jump out squad” policy was based on geography alone, to which the ACLU objected. She says, after discussions with the city, she was assured that the policy is based on individual reasonable suspicion that the person is about to engage in illegal activity. “I’m satisfied that they’re making good-faith efforts [and] that their policy is being complied with,” Fennell said. However, she said the ACLU is still at odds with the city on the photographing policy, which she called deliberately intimidating. Meanwhile, the public defender’s office said that it may take action against the policy if it arises in a case and expressed concern about the entire practice. “Police can’t just simply round up people who might be suspects in order to gather evidence,” said Bernie O’Donnell, assistant public defender. Legal experts are split on its legality. NYU’s Schulhofer expressed skepticism. “The question is, what inference are the police drawing from the fact that they have someone’s picture?” NYU Professor Jerome Skolnick noted that the Supreme Court has been “rather generous in its interpretation of the scope of police activity in drug enforcement.”

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