Cherry Hill police: Surveillance of woman in bathroom proper

When surveillance cameras twice captured images of a Philadelphia woman using a toilet in a Cherry Hill holding cell during her arrest on drunken-driving charges, police followed proper protocol, authorities said yesterday.

The policy, however, has come under attack by the 42-year-old woman, who filed a federal lawsuit against Cherry Hill on Monday, alleging a violation of her privacy during her arrest a year ago.

It's unclear how many police departments across the state watch people in custody that closely.

In Haddon Heights, for example, 10 cameras keep watch around the station, in the courtroom, and in detention areas, Chief Rich Kinkler said.

The camera that would capture images of the toilet in a holding cell is covered to preserve privacy.

"We don't want to see somebody going to the bathroom," Kinkler said.

In Philadelphia, there are no cameras to record such personal acts, said Officer Tanya Little of the police Public Affairs Unit.

Cherry Hill Lt. William Kushina said the township follows state Department of Corrections regulations on surveillance systems in municipalities.

Those arrested "are on camera from the time they walk in until the time they walk out," Kushina said, adding that the state last inspected Cherry Hill's station in July and found the department in compliance.

Digital images are censored with a black bar to cover sensitive areas. Authorities said the surveillance was designed to keep detainees safe, prevent suicide, and protect the department against brutality allegations.

Gloucester Township also uses a camera in its holding cell and follows the black-bar censorship guidelines, said Capt. Ray Evans.

The woman suing Cherry Hill, listed in court documents as "Gretchen W.," was surprised by the toilet scenes in surveillance videos sent to her attorney as he prepared for court on the drunken-driving charges.

On March 18, 2009, she was pulled over on Route 70. She was taken to the police station and charged with traffic infractions that included DUI and refusing to take a breath test. She later pleaded guilty to refusing the breath test.

While in custody, she twice asked to use a bathroom and was taken to a holding cell with a toilet and surveillance camera.

"People have rights. If she was arrested for murder or robbing a bank, and they put her in a holding cell with surveillance, then fine," said Haddonfield lawyer Joseph Osefchen, who filed the lawsuit.

"She was sitting on a bench. She was not handcuffed; she was not sitting in a cell," Osefchen said, adding that when his client asked to use a bathroom, she was entitled to privacy. "I don't think that the policy is going to cut it."

Deirdre Fedkenheuer, a spokeswoman for the state Department of Corrections, said municipalities may use surveillance equipment in cells with toilets.

The state does not require surveillance cameras, but if departments have them, the guidelines say, "the monitoring system shall remain activated at all times that detainees are present due to the added measure of safety and security the system provides."

It further states: "Care shall be taken that there is no intrusion of privacy in the area around the sanitary unit."

The woman's attorneys said the black bar on Cherry Hill's video failed to conceal much, partly because the bar does not move as the subject moves.

Additionally, they say, the department has no right to videotape people in the bathroom if they pose no security threat or are not charged with an indictable offense.

In the lawsuit, lawyers note three cases - two that originated in New Jersey - in which federal judges have commented on law enforcement's right to observe an individual in custody using a toilet.

In one case, out of Gloucester County, a judge concluded: "There are few activities in our society more personal or private than the passing of urine."

The judge further noted, "Arrestees may reasonably expect to defecate, urinate . . . without direct visual observation by law enforcement officers, unless some justification for the intrusion is demonstrated."