The Post and Courier

Police forces across the United States are stockpiling massive databases with personal information from millions of Americans who crossed paths with officers but were not charged with a crime.

A person can end up in one of these databases by doing nothing more than sitting on a public park bench or chatting with an officer on the street. Once there, these records can linger forever and be used by police agencies to track movements, habits, acquaintances and associations – even a person’s marital and job status, The Post and Courier found in an investigation of police practices around the nation.

What began as a method for linking suspicious behavior to crime has morphed into a practice that threatens to turn local police departments into miniature versions of the National Security Agency. In the process, critics contend, police risk trampling constitutional rights, tarnishing innocent people and further eroding public trust.

Law enforcement agencies have for decades used what’s known as field interview or contact cards to document everything from sketchy activity to random encounters with people on the street. But the digital age has greatly expanded the power and reach of this tool, allowing police to store indefinitely reams of data on those who draw their interest — long after any potential link to a crime has evaporated.

“They pose a different threat than the NSA. … But they can reveal a much more invasive picture of a person’s life,” attorney Stephanie Lacambra of the Electronic Frontier Foundation, a California-based digital-rights advocacy group, said in response to the newspaper’s findings. “The public should be concerned.”

Some 35,000 people — roughly equal to a quarter of the city’s population – show up in the Charleston Police Department’s database for field contacts, which includes everyone from suspected killers to toddlers and 99-year-olds. One man alone has more than 1,000 entries to his name.

If you want to know what’s in those files, it’s going to cost you. Even though these are public records under South Carolina law, Charleston police has refused to fully open them for inspection unless The Post and Courier forks over nearly $200,000 – a fee the newspaper is fighting in court. In other places, public access is blocked altogether and mired in secrecy.

In a first-of-its-kind review, the newspaper spent a year examining the field contact practices of the nation’s 50 largest police departments, along with some of the top law enforcement agencies in South Carolina. The investigation found a haphazard system with few controls and many concerns. Among the findings:

Rising concerns

Revelations about field contact practices have brought to light allegations of misconduct and invited scrutiny of police administrations. The data was central to shake-ups in New Orleans; New York City; Newark, New Jersey; Ferguson, Missouri; and Baltimore — cities whose police agencies have struggled in recent years to find a balance between fighting crime and building close ties with their communities.

In Baltimore this year, federal investigators slammed police for aggressive and discriminatory stops that unfairly targeted black residents without legal justification. Police stopped one black man 30 times in four years without an arrest or citation. And in Newark, the Justice Department in 2014 found thousands of cases in which officers did not document the reasonable suspicion needed to make stops and conduct field interviews.

Federal investigators slammed Baltimore police for aggressive and discriminatory stops that unfairly targeted black residents without legal justification. AP File Photo/Patrick Semansky

Capt. Derek Glenn of the Newark Public Safety Department said his agency is still doing extensive training, stressing to officers the importance of making proper stops and justifying their actions in reports.

“Bottom line is, if it’s not in that report, that’s what you’re going to be judged by,” he said. “If you didn’t include it, it doesn’t exist.”

Problems have been reported across the nation. In Florida, police in Miami Gardens questioned nearly 57,000 people during a six-year period without an arrest. In California, sheriff’s deputies mislabeled a special-needs student as a gang member on a field contact card. In Colorado, police in the affluent ski town of Steamboat Springs were accused of confronting people doing innocuous things, such as working out at a 24-hour gym, in their zeal to build a database of field contacts. All three departments drew lawsuits over their actions.

These incidents come at a time when civil libertarians have become increasingly concerned over the reach of police surveillance, from video cameras sweeping public spaces to license-plate scanners, facial recognition software and so-called “stingray” devices that can intercept cellphone data without search warrants.

The nation also is wrangling with a robust and divisive debate over police use of traffic and pedestrian stops to ferret out potential criminal behavior. Much of that debate has focused on so-called “pretext stops” in which officers use minor violations to stop and question someone they think might be involved in a more serious crime. But field contact data draws from an even broader field, using everything from observations to casual conversations to build voluminous storehouses of information on sketchy characters and innocents alike.

Consider that Florida’s Miami-Dade Police Department has more than 1.6 million entries in its field interview database. Fairfax County, Virginia, has another 1.3 million. In South Carolina, Charleston police have amassed a database of nearly 100,000 encounters in the past seven years.

‘Secret surveillance’

Police officials across the nation have downplayed the potential threats to privacy from this practice, defending field interviews as a critical tool for fighting and preventing crime in an age of myriad threats.

“It’s absolutely useful,” Sgt. Trent Crump of Arizona’s Phoenix Police Department told The Post and Courier. “These things help us to solve crimes.”

Crump offered no examples, but other departments did. Charleston police pointed to a field interview card that officers filled out three years ago on a suspicious man seen running near a “known narcotics location.” The card proved crucial in linking him to a murder in the area that same night. The man is now serving 38 years in prison.

Marjorie Esman, executive director of the American Civil Liberties Union in Louisiana, heard about the crime-fighting benefits of these cards while battling New Orleans police in 2010 over their extensive use of field interviews. Police there were completing about 200 field interview cards per day, netting many innocents along the way. Esman said most people have no idea of the potential ramifications of this “secret surveillance.”

“Do we want the police to, essentially, be able to follow people around?” she asked. “And that’s what this is if they know who you are, where you are, who you are with, what you are doing. What business is that of the government if you are not breaking any laws? That is very scary.”

Some law enforcement officers have rebelled against the practice as well. Dave Kleiber, a 19-year veteran, quit the Steamboat Springs Police Department and penned a public letter raising concerns about the agency’s tactics.

“In most circumstances, cities doing this have created an environment with a tremendous amount of animosity between the public and the police,” Kleiber said. “You have to look at that and say, ‘Maybe I’m getting this data, but what am I losing in the process?’ If you’re losing the faith of the community … then what’s the benefit?”

An age-old tool

The practice of filling out field contact cards has been around since at least the 1960s, when it was hailed as a novel crime-fighting device in a report by a presidential commission studying justice issues. Some departments, however, said they have had some system in place for documenting encounters with the public since the 1920s.

From the start, the premise behind the cards was fairly simple: If an officer spotted someone acting suspiciously – say, lurking around a building after dark — he jotted down the circumstances and the person’s information for future reference. If a burglary occurred at that address a short time later, the card would give a detective a starting point to look for possible suspects.

For years, officers filled out paper cards, and clerks filed them away in records departments or detective offices for analysis. Sheriff’s deputies in Charleston County still use this method, storing the cards in a filing cabinet. Once the drawer gets too full, the cards are tossed and replaced with new ones.

Sheriff’s deputies in Charleston County still use paper records to document field contacts, but Sheriff Al Cannon said he would like to convert these files into an electronic database similar to ones used by surrounding police agencies. Grace Beahm/Staff

More and more agencies, however, are turning to digital forms that can be filled out on smartphones, laptops or tablets. In Montgomery County, Maryland, it’s even easier. Officers there simply scan the barcode on a person’s driver’s license with an electronic reader and personal information pops up on a contact form, said Officer Rick Goodale, a police spokesman.

There and elsewhere, information from citizen encounters is then fed into a central database without storage constraints. With the records often just a few keystrokes away, officers in the field can peruse a person’s history of interactions with police before making contact.

That ability, officials said, provides useful context and prepares officers for what they might encounter. But critics contend this also could color an officer’s perception of an individual and lead to unnecessary distrust. In Newark, for example, Justice Department officials found that internal affairs investigators at times discredited valid complaints against officers because the person making the allegations showed up in the department’s field inquiry database, often under dubious circumstances.

“NPD officers’ unjustified stops can have long-lasting and substantial consequences for people’s lives, as well as for the NPD’s ability to hold officers accountable for misconduct,” Justice Department investigators warned in a 2014 report.

Drive for data

The drive to collect data itself has led, at times, to allegations of harassment and racial profiling in some communities.

A 2014 investigation by the Fusion television network uncovered problems with a push for field contacts in the predominantly black Florida suburb of Miami Gardens. Officers stopped and questioned 56,922 people — the equivalent of more than half of the city’s population — over a six-year stretch without a single arrest. More than 8,000 minors, including a 5-year-old boy, were detained along the way, Fusion found.

Earl Sampson, a customer and employee at a convenience store targeted by Miami Gardens police, was stopped more than 200 times for questioning in four years and arrested for trespassing 62 times, mostly for being at his place of work, a Miami Herald investigation determined in 2013. The city’s police chief resigned amid allegations of harassment and intimidation, and a federal civil rights lawsuit was filed against the city over the stops.

This 2013 photo shows Earl Sampson, who was stopped for questioning by Florida’s Miami Gardens police more than 200 times for questioning in four years during a push for field contacts. Sampson also was arrested 62 times for trespassing, mostly for being at the convenience store where he worked, pictured here. AP Photo/The Miami Herald, CW Griffin

Antonio Brooklen, the city’s current police chief, did not respond to multiple requests for comment on the episodes. But Miami-Dade County Public Defender Carlos Martinez told The Post and Courier that the number of field contacts in the city has dropped dramatically since bad press caused police to reverse a policy he described as “New York’s stop-and-frisk on steroids.”

“They were really painting the whole town as criminals,” Martinez said. “They were using the field investigation cards as a way for individual officers to rack up the number of contacts they had and make it look like they were actually doing good investigative work. In the process, they hurt a lot of innocent people who were not engaged in any sort of questionable behavior but ended up in a police database anyway.”

Similar concerns surfaced in New Orleans, where residents complained to the ACLU in 2010 that police were stopping people for no apparent reason and demanding identification. Police there were using field interview cards to judge officer performance, leading to complaints of racial profiling and implied quotas in a system that landed nearly 60,000 people in the police database without an arrest. One department veteran warned the police administration that officers were being instructed to document every contact with a citizen regardless of the reason — an order he deemed unconstitutional, The Times-Picayune newspaper reported.

Another officer who was disciplined for speaking out on the policy later sued then-Police Superintendent Ronal Serpas, alleging that the chief’s push for statistics “led the NOPD to cast a dragnet over all individuals having contact with the agency.”

New Orleans Police Department Superintendent Ronal Serpas, left, drew scrutiny after a widespread field interview program landed nearly 60,000 people in a police database without an arrest. Serpas, who retired in 2014, is seen here at a 2011 news conference to announce the findings of a U.S. Department of Justice report into the New Orleans Police Department. AP/File Photo

The department has since shifted away from these widespread stops following a federal consent decree and Serpas’ retirement in 2014, ACLU leaders said. New Orleans police also joined a White House effort to increase police transparency with data, and they now publish regular reports about field contact stops on the department’s website for the public to review.

In 2004, the ACLU also challenged field interview policies in Jackson, Tennessee, after a college student alleged that racial profiling led an officer to question him on his grandmother’s front porch, according to Hedy Weinberg, executive director of the ACLU of Tennessee.

Other residents also complained to the local newspaper about being stopped, questioned and photographed by police during field interviews. Statistics later showed 76 percent of the photos taken were of black residents.

“Field contact cards can be a useful tool for ensuring police accountability when they are used to gather information on police activity, but not when they violate civilians’ privacy,” the ACLU’s Weinberg said in an email to The Post and Courier.

Suspicions linger

Law enforcement officials insist the personal data collected is kept private and that suspicions alone won’t land anyone in jail. Still, those suspicions can haunt a person for years after the initial encounter.

In Santa Cruz, California, a school resource officer in 2003 filled out a field interview card that identified a special-education student as a gang member without evidence to prove that, according to a lawsuit filed by the boy’s mother. The officer based his suspicions on the teen’s choice of clothing and the fact he was seen talking with classmates who were suspected gang members, according to court papers. The card landed the boy in a gang database, and soured his relationship with teachers and administrators, causing his grades to plummet, according to the lawsuit. The two sides settled the suit in 2005, with sheriff’s officials agreeing to remove the teen from the database.

Last year, a team of criminologists released a report on the Boston Police Department‘s field interrogation, observation and stop-and-frisk policies. They raised concerns about officers placing people in that department’s database just because they had been seen with others deemed suspicious, saidJack McDevitt, director of the Institute on Race and Justice at Northeastern University.

The so-called “FIO report” database had been primarily used to monitor gang activity, and it had been an effective tool in that regard, McDevitt said. The problem was, others were getting drawn into that web solely due to their association or proximity to a gang member. The study found many of those interviewed and catalogued by police had no records or further encounters with police.

“They realized what the police were doing was FIOing a gang member and the four or five kids he had with him, and that was seen as a gang database,” he said. “They were taking people who just happened to be at the wrong place at the wrong time.”

Boston police did not respond to a request for an interview but supplied reports and data to show they had made tactical changes as a result of the study. Among them: purging files from their database within five years if those named haven’t been stopped again by police. Before, those records were kept indefinitely.

“That’s the way it was historically done in the department, and clearly it’s wrong,” said McDevitt, who has been working with police to craft changes from the study’s findings. “Just because someone had an incident or a bad encounter doesn’t give police the license to continue treating them with disrespect.”

Still, only a handful of the law enforcement agencies surveyed by The Post and Courier had policies in place for removing data after a set time period. For most, the records were permanent.

That’s why Charleston’s database has an entry for two men questioned by police after they were spotted loading construction supplies into a truck on Daniel Island in 2012. Their personal information remains on file four years after police determined they were simply a pair of contractors getting ready for work. Similar examples were found in other departments’ files.

North Charleston Deputy Police Chief Scott Deckard said field contact entries lose value over time, but they still provide police with somewhere to start when an investigation gets rolling. “You don’t know the value of that information until you really need it,” he said.

But others maintain that convenience comes with too high a risk of impugning reputations and invading personal privacy.

Richard Rosenfeld, a criminologist with the University of Missouri, said he sees no reason for police to hold on to citizens’ private information if that person has not been tied to a crime within three to six months.

“To put it bluntly,” he said, “the police have no business compiling and retaining indefinitely information on persons innocent of any wrongdoing.”

The risk of misperceptions has only multiplied, critics contend, as police departments have turned to the contact forms to document a whole range of things beyond suspicious activity.

While police in El Paso, Texas, use the forms primarily to monitor criminal gang activity, their counterparts in San Francisco fill out cards when they spot new homeless people or are asked to check on people’s welfare. Charleston’s database includes abandoned cars. And North Charleston police sometimes use theirs as a tickler file of sorts for neighborhood contacts, entering a person’s information with no accompanying narrative to explain how they ended up there.

Inviting scrutiny

In some cities, including Charleston, landing in such a database can be an invitation for greater scrutiny in the future. More than 1,200 people in the Charleston police database had 10 or more entries; 64 showed up more than 100 times.

Charleston police officer John Saunders does field interviews with 52-year-old Nathan Gagnon (left) and 59-year-old John Francis Morgan on Aug. 9 after reports of a disturbance at the One80 Place homeless shelter on Walnut Street. Andrew Knapp/Staff

Police officials insist such encounters are generally benign and not intended to place average citizens under suspicion. They point out that no law prevents an officer from striking up a conversation, and nothing prevents a citizen from just walking away if police lack reasonable suspicion to detain them. They are under no obligation to supply their information during consensual encounters.

Still, given the increasingly sophisticated technology available to store and manipulate the information, many civil rights advocates, defense attorneys and experts in police accountability have grave concerns about this widespread collection of data.

“You’re not entering their information in the McDonald’s favorite customer system,” said Tim Kulp, a Charleston defense attorney and former FBI agent. “You are entering them in the police system. And there is a flag of stigma attached to that.”

Gerry Morris, former president of the National Association of Criminal Defense Lawyers, said it’s naïve to think that people don’t feel compelled to answer questions when approached by police. And most probably have no idea that police are warehousing information culled from what might have been a casual conversation on the street, he said.

“When they approached, was the citizen fully aware of what that data was going to be used for and that it would be maintained possibly indefinitely?” he asked. “And knowing that, would the citizen have volunteered that information?”

Others question who protects the information from being misused.

An oversight agency found three instances last year in which Denver police officers misused a restricted law enforcement database, including one incident in which an officer looked up personal information on a man suspected of having an affair with his friend’s wife.

A New York City police sergeant was convicted this year of accepting cash to furnish confidential information from a federal database to a private detective. In Connecticut, an officer was accused of giving a friend records from a criminal database to harass her ex-boyfriend’s pregnant girlfriend. And in Charleston in June,a former Naval Criminal Investigative Service agent was charged with illegally accessing personal information about co-workers, his wife and her divorce attorney from a state database of motor vehicle records.

U.S. Rep. Zoe Lofgren, a California Democrat, is an attorney and a House Judiciary Committee member who speaks often about privacy rights and the shifting parameters of policing in the digital age. She said the law has yet to catch up with technological advances and the potential threats to privacy and government intrusions into people’s lives.

“The question is, does the old doctrine of ‘plain sight’ really work in the digital age?” she said. “You know, it’s one thing in the 1950s to stop a person, you write it down, they go on their way. It’s not going to be data-mined for something else. It’s not going to be cumulative in a different way that’s very intrusive.”

Challenges to access

Of particular concern to many advocates is the lack of standards and transparency associated with the use of field inquiries. They exist outside of stringent incident reporting guidelines set by the FBI and, in some places, aren’t considered public documents at all. In others, police have worked to put up barriers to sidestep scrutiny.

Access to the data is as varied as the states that keep it. Residents in New York’s Suffolk County, for instance, can get copies of their field contact cards for 25 cents a page while Los Angeles police require a court-issued subpoena before they will hand them out. Officers in Boston can call up the information in their cruisers, while Las Vegas police limit its distribution to hand-picked officials with special clearance.

In South Carolina, some police agencies surveyed released limited information that revealed race and age data and showed where in their cities people were most often encountered for field contacts. But police mostly withheld crucial details that could show why people were being stopped for field interviews, whether officers were properly documenting them and how the authorities are using the information they gather.

Charleston police refused to provide full access to its field contact database unless The Post and Courier paid for a city official to review the files and redact sensitive information. The newspaper has filed a lawsuit against the city, seeking to open that information to the public.

Police in North Charleston and the capital city of Columbia threw up similar roadblocks and proposed charging tens of thousands of dollars for access to their field contact files.

Susan Dunn, legal director for the ACLU of South Carolina, said this secrecy can fuel fear that police are creating a list of people to target for suspicion and action.

“It’s almost having the same effect as creating an unknown, do-not-fly list,” she said. “You have to wonder what they are keeping it all for. What is the purpose of keeping it if the community can’t access it and see what is going on?”

In most cases, officials argued they had no easy way to scrub out people’s personal information and intelligence that could be used to solve crimes. But other agencies in the country have found ways to gather crucial details of public interest without compromising those sensitive details.

The only way to provide a check on this type of police activity is to make it public, said Bill Nettles, who recently stepped down as South Carolina’s U.S. attorney. This data allows citizens to see what’s happening and assess whether they can support what the police are doing. Information gathered with taxpayers’ money, he said, should be available to the taxpayers.

“I think the community has a right to know what is happening,” Nettles said. “That is how a democratic society should work.”

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