Jefferson Memorial

Groundhog Day at the CVS

Jamison KoehlerEvidence, Social Media and Technology

It is a snippet of life from a CVS store in the District, viewed again and again through 15 different surveillance cameras. There is a 5-minute view from one camera – say, for example, at the entrance of the store. When that 5 minutes is up, you go back in time like the Bill Murray character in Groundhog Day to a different camera, perhaps to the pharmacy counter or the self-checkout registers or the main register. There is even a camera in the employee break room, and another one in the security booth at the back of the store. There are 75 minutes in all, 15 micro-glimpses into the same five-minute time span repeating itself over and over again.

Watching the video on behalf of your client, you get to know the characters pretty well. There is the friendly Latina at the pharmacy counter, and the pharmacist filling prescriptions behind her. There is the guy with the red shirt in the wheelchair. There is the woman with the white coat and black handbag. And there is a woman in a burka wrestling with her children in virtually every aisle and every frame of the video.

Having followed the character’s movements from one snippet to the next, you can predict exactly where each character is heading and where each character will end up. For example, during one of the early snippets, you see that the guy in the wheelchair ends up first in line at the pharmacy counter. When you see him trailing the woman in the white coat as they both move toward the pharmacy, you know that somehow he will overtake her before they arrive. Sure enough, she is distracted by something she sees in the household goods aisle and stops to inspect it. He rolls on past her.

These same aisles will seem pretty familiar to you when you enter the store yourself later to investigate. You may even recognize one or two of the store clerks. The loss prevention officer, if he is working that day, may recognize you from the probable cause hearing and you will nod at each other as you come in, two professionals each doing his job. Later, you feel his presence through the cameras as you move toward the makeup aisle. You can imagine him watching you from the security booth above you.

The loss prevention officer testified at the probable cause hearing that the three respondents came into the store together. They do in fact have cheerful expressions on their faces as they walk into the store, unaware that they are about to be arrested for shoplifting. But the rest of the recording contradicts much of his testimony. Although he claimed that the three women stayed together throughout the entire time they spent in the store, your client – dressed in a brightly colored sweater as if she were trying to call attention to herself – often leaves the other two women to wander around on her own.

And then you see it.

It happens so quickly you need to press rewind to watch it again. This is the moment that will be examined again and again in careful detail at trial.

The three women have come together again in the makeup aisle, their images washed out and grainy and their movements jerky like the characters in a Charlie Chaplin movie. The two other women, both with large handbags on their shoulders, are at one end at the aisle. Your client – empty-handed, empty-shouldered – is at the other.

Your client stoops in and picks up an item off the shelf, and for a moment you think she will hand it to one of the other women now moving towards her. This is in fact what the security guard claimed she did at the probable cause hearing. Instead, she puts the item back onto the shelf, and the other women move past her.

One of the other woman has something in her hand. Suddenly it is not there anymore, and you need to rewind the recording to see the fluid motion with which she slips the item into the bag. Rewind the recording yet again and you find that your client is nowhere near her. Your client is also looking the other way. No matter what the officer claimed at the probable cause hearing, the recording provides no proof that your client ever concealed any merchandise herself or knew what the other women were doing.

Although everything will be subject to interpretation at trial, this is why you have long been a big fan of surveillance cameras. Although defendants often claim that police do not have any evidence, what they really mean to say is that the police do not have any tangible evidence. The simple say-so of a complaining witness or police officer taking the stand is also evidence. It can have the same legal effect as any physical evidence.

Government witnesses often have remarkable memories for even the smallest of details when it comes time to testify. And these memories tend to coincide nicely with the prosecutor’s theory of the case. This is why there are no cameras mounted on police car dashboards in D.C. even though these technologies are both widely available and inexpensive; such recordings tend to inhibit the ability of the officer to assess, to interpret and to explain.

In the final series on the recording, you are watching the loss prevention officer himself in the security booth. Even he is under the surveillance; the observer observed. Although we have gone back in time yet again, you know from earlier footage where he will end up. Standing at the end of the aisle, he will motion the three women toward him so that he can examine their bags. He will then take one of the women by the arm – the woman who put the item into her bag — and march her down the aisle toward the office. In a gesture borne of either defiance or remorse, it is hard to tell which, she will put her hand over her mouth just before the two of them pass in front of the camera.

For now, the officer takes another bite from a sandwich before, checking the monitors once again, you see him stiffen and stand up. He has seen what he needs to see. He reaches for rubber gloves before he steps out into the store.