Stop! And Say Cheese

By Nadya Labi Sunday, Sept. 15, 2002
    • Martin Mills, 25, keeps a low profile in order to stay safe in his tough neighborhood. He cleans hotels for $250 a week and then goes straight home to a three-bedroom house in a predominantly African-American area on the north side of Wilmington, Del. He lives with five of his six children and his girlfriend. His younger brother was robbed at gunpoint and shot in the head a few years ago. "I don't bother anybody," he says. "I try to do right, keep a cool head." He needed one on Sept. 3, when seven or eight cops descended on him as he was leaving the corner deli. They jumped out of an unmarked van and, according to Mills, knocked over his 1-year-old son in their haste to collar Mills. They frisked him, then shoved a camera in his face. He says he heard an officer say, "We are taking your picture now for anything you might do in the future." They then let him go without charging him with any crime.

    Wilmington police say they have "no record" of Mills' case. But their chief, Michael Szczerba, makes no apologies for his department's latest effort to crack down on drugs. This summer units of as many as 18 agents, known to locals as "jump-out squads," began stopping individuals, usually African Americans like Mills, at drug-infested street corners in search of guns, crack and heroin. The police would then take a digital photo, even with no evidence of malfeasance, to file in a database that Szczerba says can be accessed "if we see a subsequent violation." The department plans to continue indefinitely what it calls Operation Bold Eagle.


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    The notion of collecting mug shots of potential criminals has sparked comparisons to the futuristic thriller Minority Report, in which a fictional high-tech police unit identifies criminals before they commit crimes, an analogy that Szczerba says is laughable. He adds that it is "highly improbable" that innocent people were caught up in the sweeps. But police statistics show that nearly 20% of the more than 600 people detained thus far were not charged with any offense.

    According to the 1968 Supreme Court decision Terry v. Ohio, police can conduct "stop-and-frisks" if they have a reasonable, particularized suspicion that criminal activity is afoot and a suspect is dangerous. But they cannot use these stops to go fishing for criminals in high-crime areas. Cops often fudge that distinction. "Police stop generally young males in high-drug-traffic areas based on very little suspicion all the time," says Bill Stuntz, a Harvard Law School professor. "The reality on the streets is some distance from what the law says." In Wilmington, the police insist that they abide by the law by engaging in surveillance before they send out the jump-out squads. But what especially bothers the Wilmington operation's critics, who range from civil libertarians to local politicians, is the pictures taken by the police. The A.C.L.U. is considering suing the police department if it continues the candid shots. Says one of the group's directors, Barry Steinhardt: "The premise of the Fourth Amendment is that you don't question people, detain them — and you certainly don't take photos and enter them into a database — unless you have reasonable cause."

    Most experts believe that as long as the initial stop is legal, the police can take what-ever photos they want. The Supreme Court has held that people can have no expectation of privacy when they are in public. That's why the government was able to scan the faces of fans at last year's Super Bowl and why it can videotape drivers to make sure they don't run a red light. "Police can take photos of people in public places," says Stanford law professor Robert Weisberg. "It can be ugly, immoral, authoritarian, but it's not unconstitutional."

    Many Wilmington residents appreciate the efforts of their police. Ann McGrellis, 33, a sales assistant in downtown Wilmington, says, "The bottom line is, if you're not doing anything wrong, you don't have to worry about the jump-out squads." Mills, who believes he was targeted because of his race and address, might beg to disagree.