BWC Incident #3

Date: 6-3-2017
Location of Incident: 100 block of S. Calverton Rd.
Investigated by: Baltimore Police Department
 Factual Scenario:

This case involves the alleged reenactment of the recovery of

Controlled Dangerous Substances (CDS) by BPD Police
Officers so that the Officer’s Body Worn Camera (BWC) could
capture the recovery.
On June 14, 2017, Officer #2, assigned to the Western District,
District Action Team (D.A.T.), was conducting visual
surveillance from a covert location when he observed the
defendant engage in what Officer #2 believed to be a drug
transaction. Based on this observation, Officer #2 directed the
arrest team, consisting of Sergeant #1, Officer #1, and Officer
#3, to arrest the defendant. After a brief foot pursuit, the
defendant was apprehended by the arrest team and a search of
his person was initiated by the officers.
However, a few minutes after he had been placed in handcuffs,
the defendant was able to flee and run approximately 20 yards to
a wooded area of the 100 block of S. Calverton Rd before he
could be apprehended again by the officers. A search of the
defendant ultimately recovered three purple Ziploc bags
containing marijuana, one Suboxone Film, and over $100 in
U.S. currency.
A few days later, Officer #1 reviewed the jail calls that the
defendant made after his arrest. In one of the calls, Officer #1
heard the defendant tell an unknown person that he had
discarded drugs in the wooded area where he had been
apprehended the second time. The drugs were in a Rello pack.
(A transcript of the relevant portion of the defendant’s call is
included below).
Based on the information obtained from the jail call, on June 17,
2017, Officer #1, along with Officers #3, and #2, went to the
location described by the defendant in his call to search for the
drugs he said he had discarded. During the ensuing search of
the wooded area, the BWCs from all three officers were at some
point activated and recorded the recovery of the CDS from their
various perspectives. The BWC videos, with no audio, begin by
showing the officers searching the foliage for the drugs. Officer
#1 is seen bending down and picking up what appears to be a
piece of litter lying in the undergrowth. After Officer #1 opens
what appears to be tobacco packaging litter (a Rello pack) and
finds the CDS inside, he indicates that he found it to the other
officers. He hesitates for a moment, and then he places the
package back where he found it, activates his BWC, and picks it
up again. The package was subsequently found to contain
eleven blue top vials of crack cocaine. (A detailed timeline of
all three BWC videos is included below).
On July 20, 2017, Officer #1 applied for charges against the
defendant and an arrest warrant was subsequently issued. In his
Application for Statement of Charges, Officer #1 did not
indicate that he had only activated his BWC after he had
returned the CDS to where he had initially found it. Instead,
Officer #1 stated only that, “This incident was captured on BWC
#1 (J696).” Application for Statement of Charges, pg 3, dated
June 18, 2017.
On August 2, 2017, Officer #1 called the Body Worn Camera
(BWC) Unit and reported a potential issue concerning the
activation of his BWC and his recovery of the CDS. Also on
that date, Officer #1 provided the Internal Affairs Section a copy
of the jail call from the defendant. In the course of self-
reporting this issue, Officer #1 made statements to one of his
supervisors, Sergeant #1, indicating that he realized that there
might be an issue with the BWC in this case after seeing news
reports about other BWC cases that had recently been in the
news because of alleged reenactments by BPD Officers.
On Aug. 24, 2017, the State entered a Nolle Prosequi for charges
related to the CDS that Officer #1 found during his search on
June 17, 2017.
LEO (Law Enforcement Officer) Witness Statement Summary:1

Sgt #1:

Sometime near the end of July 2017, Sgt. #1 states that Officer
#1 reported to him that there may be an issue with his recovery
of the CDS in a case. Officer #1 stated that after seeing news
reports about other BWC cases, that had recently been in the
news because of alleged reenactments by BPD Officers, he
realized that there could be a similar issue in this case. Based
on Officer #1’s disclosure, Sgt. #1 told him to contact the Body
Worn Camera Unit and advise them of the situation.

1
LEO#1 did not provide a statement.
 BODY WORN CAMERA VIDEO
The BWC videos reviewed for this case includes the BWC video
from Officer #1 showing the initial arrest of the defendant on
June 14, 2017. The BWC videos at issue, dated June 17, 2017,
from Officers #1, #2, and #3 showing the later recovery of the
drugs that the defendant had allegedly discarded when he was
arrested were also reviewed.
The way the BWC operates is of particular relevance in this
case. “When Powered On, but not activated, the BWC captures
video but not audio. The video is not stored into permanent
memory until BWC activation. Once Activated, the BWC will
permanently store video captured 30 seconds prior to BWC
Activation, and all audio and video captured until Deactivation.”
(See BPD Policy 824, Body Worn Camera, pg. 1, dated 1 Jan
2018.) In other words, when activated by the Involved Officer,
the BWC devices recorded the thirty (30) seconds of video, with
no audio, that occurred immediately preceding the activation.
When the audio on the video begins, it indicates the point in
time when the Officer activated his BWC.

BWC of the Initial Arrest on June 14, 2017 (Video #1)

A review of Officer #1’s BWC video from the initial arrest, on

June 14, 2017, begins with Officer #1 riding in the backseat of a
car. When the car stops, Officer #1 gets out and a brief foot
chase ensues until the defendant is caught after he stumbles and
falls. BPD Officers place the defendant in handcuffs and stand
him up, but within a few minutes, the defendant tries to escape
and takes off running again while still in handcuffs. The
Officers give pursuit and quickly capture him again in a wooded
area of the 100 block of S. Calverton Rd. The Officers then
arrest the defendant and the video ends with Officer #1 taking
him into a hospital to receive medical attention for what appear
to be minor issues. BWC from Officer #1, recorded on June 14,
2017.
The rest of the BWC videos reviewed in this investigation were
taken on June 17, 2017 by Officers #1, #2, and #3. These three
BWC videos show the search and recovery of the CDS that the
defendant allegedly discarded when he tried to escape during his
initial arrest on June 14th and referenced in his jail call.

The following are timelines for the videos taken by the Involved
Officers’ BWCs during their search and recovery of the CDS
that the defendant allegedly discarded:2

Officer #1 – June 17, 2017 (Video #2)

1) 18:44:41 Officer #1 appears to be searching in a
wooded area. The video begins with no
audio. At this point, it is 30 seconds before
audio beings.
2) 18:44:55 Officer #1 bends down and picks up
something.
3) 18:44:58 Officer #1 opens a package and something
blue can be seen inside and Officer #1
appears to indicate with his body language
to the other Officers that he found the CDS.
4) 18:45:06 Officer #1 bends down, places the package
back on the ground, and then stands back up.

2
BPD Radio Code 10-61 means, “BWC activated,” and Code 10-62 means, “BWC de-activated.” See BPD
Policy 701, Departmental Radio Communications, Appendix A.
 5) 18:45:11 Officer #1’s body camera audio begins
(indicating that the BWC was activated at
this point).
6) 18:45:15 Officer #1 bends down and picks the
package up again.
7) 18:45:19 Officer #1 opens the package and shows that
it contains several blue topped vials
containing a white substance.
8) 18:45: 21 Officer #3 tells Officer #1 that there’s
poison ivy.
9) 18:45:34 Officer #1 says “62” and then deactivates his
camera.

****
Officer #2 – June 17, 2017 (Video #3)
1) 14:44:37 Video begins with no audio. Officer #2 is
walking toward a wooded area. Officers #1
and #3 are already there searching the area.
2) 14:44:54 Officer #1 is seen bending down and picking
up what looks like a piece of litter.
3) 14:44:59 Officer #1 shows the contents of the
package to Officer #3 who nods his head up
and down.
4) 14:45:06 Officer #1 bends down and puts the package
back on the ground.
5) 14:45:07 The audio begins.
6) 14:45:11 Officer #1 says “I’m going ten six one.”
7) 14:45:12 Officer #2 says “I’m six one too.”
8) 14:45:15 Officer #3 is seen activating his BWC.
9) 14:45:16 Officer #1 squats down and picks the
package up again.
 10) 14:45:21 Officer #3 tells Officer #1 that there’s
poison ivy
11) 14:45:28 Officer #2 says they are surrounded by
mosquitos
12) 14:45: 32 Officer #2 says “six two.”
13) 14:45:36 Officer #2 deactivates his BWC

****

Officer #3 – June 17, 2017 (Video #4)

1) 14:44:45 Video begins with no audio. Officer #1 can
be seen searching around a wooded area.
2) 14:44:57 Officer #1 is seen bending down and to pick
up something.
3) 14:45:00 Officer #1 opens the package and lifts it up
as to signal he had found something.
4) 14:45:07 Officer #1 puts the package back on the
ground.
5) 14:45:08 Officer #2 is seen activating his BWC.
6) 14:45:15 Officer #3’s BWC audio begins.
7) 14:45:19 Officer #1 is seen bending down and picking
the package back up.
8) 14:45:22 Officer #3 tells Officer #1 that there’s
poison ivy near his face.
9) 14:45:32 Officer #2 says “six two.”
10) 14:45:37 Officer #3 deactivates his camera.
 JAIL CALL BY DEFENDANT
The following is a transcription of the relevant part of a longer
jail phone call in which the defendant tells an unknown male to
look in the foliage on Calverton Road for a “Rello Pack.”
The defendant: Yeah yeah. Shit was crazy boy. Ayo,
look through right, you know where
Calverton Road is?
Unknown: Yeah
The defendant: And you know, you know where like
the bushes at right there, say we like,
listen, look you gotta listen yo me and
picture it. You gotta listen to me.
Unknown: Yeah.
The defendant: You be walking through Frederick
Road
The defendant: Yeah. So, you know if you walking
like in the field and shit.
Unknown: Yeah
The defendant: In the cut where all that tall grass and
shit at?
Unknown: Yeah
The defendant: Yeah, go check right there; Rello Pack
Unknown: Oh alright, Oh alright, Oh alright. No
doubt no doubt. I’ll do that in the a.m.
 Attempt by BPD to Contact the Defendant
A detective made several unsuccessful attempts to contact the
defendant to obtain a statement from him for this investigation.
On Aug. 10, 2017, a detective called the telephone number that
the defendant had used when he was arrested, but no one
answered and the phone was not set up to receive voicemail. On
Aug. 14, 2017, the detective visited the defendant’s home but no
one answered the door or replied to the business card he left.
Finally, on Aug. 22, 2017, the detective sent the defendant a
certified letter, but did not receive a response.
 Departmental Policies:

BPD Policy 824 – Body Worn Camera Policy, Pg. 2, Published

May 1, 2016, states the following:
Mandatory Recording
1. Unless unsafe, impossible or impractical to do so, the
BWC shall be activated:
1.1. At the initiation of a call for service or other activity
or encounter that is investigative or enforcement-
related in nature.
BPD Policy 824, ¶ 4, further states that:
When a member does not activate the camera as this
subsection directs, either because of danger, because one of
the above exceptions apply, because the camera was
inoperable, or because of the member’s mistake, the
member must record the reason why the camera was not
activated either on camera or in writing, at the earliest time
practicable. Id.
 BPD Training

The training records of all the Involved Officers were

subpoenaed by the SAO. A review of the records failed to
reveal what BWC training the Involved Officers received.
The Primary Investigator was contacted and he sent the SAO
information showing that Officer #1’s BWC training date was
Oct. 20, 2015, Officer #2’s training date was Oct. 22, 2015, and
Officer #3’s training date was Aug. 23, 2016.
 Legal Analysis
Based on a review of the evidence, there is not probable cause to
charge any of the Involved Officers (Officers #1, #2, #3) with a
criminal offense related to their recovery of the CDS that the
defendant had allegedly discarded.
The evidence in this case raises the possibility that the Involved
Officers either violated, or attempted to violate, Md. Code Ann.,
Crim. Law § 9-307, Tampering with or Fabricating Evidence, or
committed the common law offense of Misconduct in Office.

Maryland law prohibits the tampering with or fabrication of

physical evidence with the intent to deceive. Specifically, the
Maryland Code states the following:
(a) Tampering with physical evidence. -- A person may not
destroy, alter, conceal, or remove physical evidence that the
person believes may be used in a pending or future official
proceeding with the intent to impair the verity or
availability of the physical evidence in the official
proceeding.
(b) Fabrication of physical evidence. -- A person may
not fabricate physical evidence in order to impair the
verity of the physical evidence with the intent to
deceive and that the fabricated physical evidence be
introduced in a pending or future official proceeding.
(c) Introduction of altered or fabricated evidence in
official proceeding. -- A person may not introduce
physical evidence in an official proceeding if the
person knows that the evidence has been altered or
 fabricated with the intent to deceive in order to impair
the verity of the physical evidence.
(d) Violation; penalties. -- A person who violates this
section is guilty of a misdemeanor and on conviction
is subject to imprisonment not exceeding 3 years or a
fine not exceeding $ 5,000 or both

Additionally, “Maryland has retained the common-law crime of

attempt, which is generally defined as the intent to commit a
crime coupled with some overt act beyond mere preparation in
furtherance of the crime.” Hardy v. State, 301 Md. 124, 128,
482 A.2d 474, 476 (1984).

At issue, is whether Officer #1, with the complicity of the other

two Involved Officers, wrongfully tried to create a fraudulent
BWC video showing his recovery of the CDS. As noted above,
in order to convict a defendant for the offense of fabrication of
physical evidence, in violation of Maryland Criminal Code § 9-
307(b), the State must prove that the defendant, 1) “fabricated
physical evidence in order to impair the verity of the physical
evidence,” 2) did so “with the intent to deceive, and 3) with the
intent “that the fabricated physical evidence be introduced in a
pending or future official proceeding.”

First, viewed on their own, all three BWC videos (Videos #2,
#3, #4) from the Involved Officers show the entire sequence of
relevant events from when Officer #1 first discovered the
package of litter containing the drugs, to when he put it back,
turned on his BWC, and then picked it up a second time. All
three BWC videos are what they purport to be: Videos showing
the recovery of CDS. The BWC videos show when the CDS
was first discovered, that the Involved Officers activated their
BWC’s after the initial discovery, and that Officer #1 picked up
the CDS a second time after his BWC had been activated.
Viewed by themselves, the BWC videos would not mislead a
reasonable viewer into believing that the first time Officer #1
discovered the CDS was the second time he had picked it up,
after he had activated his BWC, because the BWC
unambiguously shows his initial discovery of the CDS. There is
nothing false or fraudulent in the BWC videos that would
deceive or mislead a reasonable person in an official proceeding.

Consequently, because there is no evidence showing that the

BWC videos were in any way fabricated, or are otherwise false
or misleading, there are no legal grounds for charging any of the
Involved Officers with a violation of Section § 9-307 of the
Maryland Criminal Code.

Attempted Violation of § 9-307:

However, even though there is no actual fabricated evidence in

this case, the facts of the case raise the possibility that the
Involved Officers attempted to fabricate BWC video in violation
of Maryland common law. In the context of this attempt
offense, it was not inherently unlawful for Officer #1 to have
returned the CDS to where he found it, and then picked it up
again after he had activated his BWC. However, if he did so
with the intent to fraudulently pass off the reenactment as his
original recovery of the CDS, it potentially could be an
attempted violation of Md. Code Ann., Crim. Law § 9-307, even
if he ultimately did not actually fabricate any evidence.
There is some evidence that could indicate intent to deceive by
the Involved Officers. Instantly, the Involved Officers only
activated their BWC after they found the CDS, and thus did not
record their entire search as required by BPD Policy 824, which
requires that BWCs be activated when Officers are engaging in
activity that is investigative or enforcement related.

Additionally, Officer #1 did not include in his Application for

Statement of Charges against the defendant the fact that he had
only activated his BWC after he had initially discovered the
CDS. This fact could potentially indicate that he was attempting
to conceal this information. However, since the BWC did in
fact show Officer #1’s initial discovery of the CDS, Officer #1’s
assertion in the Application Statement of Charges was not
materially untrue because the “incident was captured on BWC
#1 (J696).” Consequently, a reasonable person would likely
find that the lack of documentation in the Application for
Charges was probably due to imprecise writing, and not motived
by an intent to deceive.
Ultimately, a review of all the available evidence fails to support
the finding that the Involved Officers had the requisite intent
necessary to charge an attempted violation of Md. Code Ann.,
Crim. Law § 9-307. First, it is common knowledge that BWC’s
go back and record the thirty seconds prior to their activation.
Consequently, it is significant that the BWC videos do not show
the Involved Officers taking any furtive actions to ensure that
the first 30 seconds of video did not reveal anything
incriminating. Instead, the videos show that as soon as Officer
#1 indicated to the other Officers that he had found the CDS,
both of the other Officers appear to have almost immediately
activated their BWCs. Officer #1 also immediately turned on
his BWC as soon as he returned the CDS to where he had found
it. This is consistent with an innocent motive on the part of the
Involved Officers to just record where the CDS was found.
Also relevant, is the fact that Officer #1 self-reported the
possible BWC issue to Sgt. #1 when he realized it could be an
issue. While in no way conclusive, by itself the fact that Officer
#1 self-reported the issue is consistent with an innocent motive,
and would tend to negate an inference of intent to deceive by the
Involved Officers.

Misconduct in Office:

In Maryland, the common law offense of Misconduct in Office

has been defined by the courts as:
[C]orrupt behavior by a public officer in the exercise
of the duties of his office or while acting under color
of his office. The corrupt behavior may be (1) the
doing of an act which is wrongful in itself --
malfeasance, or, (2) the doing of an act otherwise
lawful in a wrongful manner -- misfeasance; or, (3) the
omitting to do an act which is required by the duties of
the office -- nonfeasance. Leopold v. State, 216 Md.
App.586 (2014).

The Court pointed out in State v. Riley, 227 Md. App. 249, 263
(2016) quoting Chester v. State, 32 Md. App. 593, 606 (1976)
acts that constitute misconduct:

Acts that qualify as misconduct in office include:

Neglect or non-performance of any positive duty imposed
by law; oppressive and willful abuse of authority (to be
 distinguished from mere error of judgement); extortion;
fraud or breach of trust affecting the public, such as
rendering, passing or procuring false accounts, or
wil[l]fully neglecting to account for money received, or
corruptly retaining money found upon a prisoner; grossly
indecorous conduct, such as sitting as a justice while drunk,
or getting drunk during time of service as a grand juror.

A review of all the available evidence fails to support a finding

that the Involved Officers had the requisite intent necessary to
have committed the offense of Misconduct in Office. As
discussed above, there was no actual fabrication or tampering
with evidence in this case. The Misconduct in Office could only
relate to the Involved Officer’s failure to activate their BWC
when they began searching for the CDS and the alleged
attempted fabrication of evidence by recreating their discovery
of the CDS after they had activated their BWC. As discussed
above in relation to the attempt offense, the BWC videos do not
show the Involved Officers taking any furtive actions to ensure
that the first 30 seconds of video did not reveal anything
incriminating. Moreover, Officer #1 self-reported the possible
BWC issue to Sgt. #1 when he realized it could be an issue. In
summary, the overwhelming weight of the evidence is more
consistent with an error of judgment by the Involved Officers.
 Conclusion
For the reasons discussed above, there is no evidence that the
Involved Officers in fact tampered with or fabricated any
physical evidence in the case against the defendant. The
evidence also does not support the intent element required to
find that there was an attempted violation of Maryland Criminal
Code § 9-307, or a violation of the common law Misconduct in
Office offense.

The police officer’s actions in this case did not rise to a

level of criminal culpability. Therefore, the State declines to
prosecute the officer.
Stills from BWC are below:
Area where
Defendant fled
and was
detained; officers
went back later
and recovered
the CDS in a
cigar package.
On 06/14/2017 Defendant
is initially stopped on
Pulaski, but after being
detained he flees down S.
Calverton Rd.
Officers in full pursuit of the
defendant
Defendant flees into an over grown
area where officers eventually
catch up to him and take him into
custody.
Officer’s BWC
footage
showing them
in the same
over grown
area on June
17, 2017.
Officer locates
the cigar
package, picks
it up, and peers
inside to find
suspected CDS.
Officer places
the cigar
package back
on the ground
in the area
where it was
initially
discovered.
Officer activates
his BWC and
then retrieves
the cigar
package from
the ground.
Officer reopens
the cigar
package
confirming that
it contains
suspected CDS.