Attorney claims Durham police practice illegal surveillance

jwise@newsobserver.comJanuary 8, 2014 

— Defense attorney Alex Charns says the Durham Police Department has a “custom and practice” of illegal surveillance, and he has gone to court for evidence to back up his allegations.

Charns won some points Wednesday, when Superior Court Judge Michael J. O’Foghludha upheld parts of Charns’ subpoena for police documents and recordings pertaining to illegal recordings of suspects in custody.

O’Foghludha granted a city motion to quash the subpoena’s request for all actual recordings of warrantless electronic surveillance made since 2010, stating that it would be “unduly burdensome” to police. He allowed the subpoena’s requests for police documents authorizing warrantless electronic surveillance, but O’Foghludha was skeptical about the value of what it might produce.

“I bet you they’re not going to admit they always trick people,” he said.

City Police Attorney Patti Smith argued that police policy on recording is already on public record and that information pertaining to other cases is not pertinent to the case of Charns’ client Willie Hayes.

Charns, though, claims that Durham police routinely videotape suspects in the police interrogation room without the suspect’s knowledge or consent. He said he needs documents and recordings demonstrating that claim to support his motion to suppress an illegal video recording that could be used to prosecute his client.

O’Foghludha agreed that police should produce:

•  All rules, regulations, general orders, communications ... of any kind authorizing the warrantless electronic surveillance, or ELSUR, of persons in Durham Police Department interview rooms.

•  Copies of all consent forms in this case or any other where a person subjected to warrantless ELSUR signed a waiver or consent form prior to being interviewed and recorded.

Charns is the court-appointed lawyer for Hayes, 18, a suspect in a July 2012 home invasion. According to Charns’ motion, Hayes, who was 17 at the time, was brought to police headquarters for questioning. He waived his juvenile Miranda rights and agreed to talk to investigators at headquarters. A video camera recorded the interrogation.

Shortly afterward, Hayes said he wanted to talk to his mother, who was in the lobby. His mother, Francine Steele, was brought to the interrogation room and left alone with her son, but without their consent or knowledge, the camera continued running while, the motion states, “the furious mother berated her son, and the son made disclosures to his mother.”

Videotaping the interrogation was fine, Charns said, as long as police employees were present; it became illegal when mother and son were left alone for what they had reason to believe was a private conversation.

Wednesday’s court session dealt only with Charns’ subpoena and the city’s objection to it. The recording’s legality and past police procedures were not at issue, nor was Charns’ motion to suppress the video as evidence in Hayes’ yet-unscheduled trial.

O’Foghludha set no deadline for police to produce the material Charns subpoenaed, and directed that the material be delivered to the district attorney’s office for its decision whether the material may be “discoverable.”

Afterward, Charns said, “We accomplished ... part of what we asked for.

“But there are many things to get done before we get to a trial.”

Wise: 919-641-5895

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