Ohio Judge: Clearview Matches Aren’t Probable Cause So Kiss Your Murder Case Goodbye
If cops aren't going to follow the law or the Constitution, I don't know why we're expecting them to adhere to end user agreements.
It's not just the fake social media profiles officers and investigators use. It's also the tech they deploy. No matter how well facial recognition tech may perform, it's still problematic. And even if its matches, look pretty close to the uploaded source material, it's still just another anonymous eyewitness and nothing more than that.
Even AI firms offering facial recognition tech realize its limitations. That's why nearly ever user agreement reminds cops (often in CAPS) that matches should only be considered starting points for investigations and never considered probable cause for a search/arrest on their own. Private companies can't stop cops from ignoring this clause. The only backstop is the cops themselves. And if they care more about arrests than actually catching criminals, they'll do whatever they can to turn facial rec Googling into the only thing they need to start searching/arresting people.
Detroit PD investigators have become notorious for their over-reliance on facial recognition tech - a problem that has been exacerbated by the low-quality CCTV freeze-frames fed to the AI to generate search results. This time, the problematic PD is located in Cleveland. And it's going to cost the PD and the prosecutor a murder case they all assumed (without facts in evidence) was on its way to securing someone life in the slammer.
A jury may never see the gun that authorities say was used to kill Blake Story last year.
That's because Cleveland police used a facial recognition program - one that explicitly says its results are not admissible in court - to obtain a search warrant, according to court documents.
The search turned up what police say is the murder weapon in the suspect's home. But a Cuyahoga County judge tossed that evidence after siding with defense attorneys who argued that the search warrant affidavit was misleading and relied on inadmissible evidence.
The tech at the middle of this is Clearview, a company with its own history of problematic behavior. Utilizing billions of images scraped from the open web (along with any attached personal info). Clearview's tech may have improved over the years but its casual attitude towards other people's personal information remains intact. Clearview isn't necessarily better than its competitors. It's only advantage is its image library, which is billions of times larger than its competitors, as well as dozens of times cheaper to amass due to its reliance on web-scraping.
But this case goes beyond boilerplate attached to facial recognition tech sold to law enforcement agencies. Even Clearview is smart enough by now (after having been stung in courts both local and international over the past few years) to tell cops no search results should be considered probable cause.
Facial recognition search results are to be treated as investigative leads and should not be solely relied upon for making an arrest. Investigators are required to conduct thorough investigations, independently verify identifications, and adhere to applicable laws and agency policies regarding facial recognition search results.
That clause was cited by the court in its granting of the evidence suppression motion. But there's more to it than a bad warrant. There are also the cops (who claim to be investigators") who decided it was ok to treat unrelated footage of someone walking on a street as evidence because they claimed to have recognized the walk.
On Feb. 20, officers watched a surveillance camera that recorded a man later identified as Qeyeon Tolbert leave his apartment on East 152nd Street, which is roughly a block from where the murder happened.
Tolbert, 23, walked to a nearby convenience store, and a different surveillance camera captured a shot of his face while he was at the register, according to court records. Police, monitoring the neighborhood through real-time street cameras, thought Tolbert looked like the shooter, so they went to the convenience store and got a copy of the surveillance video.
[...]
Police believed the shooter looked like Tolbert because he had the same build, hair style, clothing and walking characteristics," Detective Michael Legg testified during a hearing on the search warrant.
Maybe. Maybe not. I don't know if cops are better at identifying distinct walking than they are identifying distinct bite marks or mass-produced jeans. Even if they are, the main point of the ruling remains: nothing here remotely resembles probable cause." And the distinct lack of actual evidence definitely doesn't help the prosecution's case. This from The Register's report on this decision, which quotes the motion filed by the murder suspect's attorney:
The defendant's DNA was not found on the scene or on the victim which is hard to fathom when it was supposed to have been a robbery," reads that motion.
There are no witnesses that say the defendant was the person who did it or seen the defendant. There was not any gun shot residue on the defendant or any of the items taken as evidence. There was shoes taken that did not belong to the defendant and can not fit the defendant for the purpose of evidence for an undetermined reason. The phone that the defendant had was not pinged in the area of the crime and even the victim's family have stated to have never seen the defendant proving they were not known to each other."
Clearview search results aren't probable cause for an arrest. That's how it stands for now in this Ohio county. Clearview agrees with this, even if it can't be happy its name is appearing yet again in court proceedings that aren't exactly aligned with its interests. Add to that the fact that both Cleveland PD employees involved in the Clearview searched testified under oath they'd never received any facial recognition training, and it looks pretty bad for the Cleveland PD. Not only that, it strongly suggests most facial recognition tech use by law enforcement is handled the way it's been handled here: with minimal training, respect for AI tech guidance, or even the most rudimentary of government oversight.