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Drug treatment facility granted preliminary injunction regarding search

At issue is surveillance video seized by Hagerstown police and photos they took while at Wells House

October 24, 2012|By DON AINES | dona@herald-mail.com

A Washington County Circuit judge this week granted a preliminary injunction to Wells House against the City of Hagerstown and the police department regarding a search of the drug treatment facility in an assault case.

“The net of protection cast over an entity such as Wells House is quite broad,” Judge John H. McDowell said during Tuesday’s hearing. Federal and state laws provide for the confidentiality of patient information in such facilities, he said.

“My interpretation is that the judge’s order simply refers to the records and tangible property taken with the search warrant,” City Attorney Bill Nairn said Wednesday. The information gathered by police by interviews regarding a possible crime, he believes, is not covered by McDowell’s order.

Wells House attorney Ira C. Cooke said the issue is broader.

“What we’re looking for is to insure the Hagerstown Police Department operates in a legal and transparent fashion when they are dealing with drug and alcohol treatment facilities,” Cooke said Wednesday.

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Congress has decided that protecting the confidentiality and privacy of patients in drug and alcohol treatment facilities is important to their treatment, he said.

At issue was an Aug. 30 search warrant executed at Wells House in which police seized surveillance video, but also took photos of and information from residents and staff.

Police later charged Darrin Jones, 43, of Gwynn Oak, Md., with first- and second-degree assault and reckless endangerment, according to District Court records. Jones is accused of pulling a knife on another man who was also living at the Wells House, 124 E. Baltimore St., the charging document said.

As a result of an earlier temporary restraining order, all items seized by police during the search have been returned to Wells House, and the department will not be seeking their return, Nairn said during the hearing.

Cooke said he will seek a permanent injunction against the city and police department. Wells House will also be seeking fees and costs from the city related to the litigation, he said.

“It’s been a very expensive venture for the Wells House to protect its patients,” Cooke told McDowell.

McDowell’s order granting the preliminary injunction states it “shall remain in effect until the scheduling of a one-day merits hearing.” Cooke said no date has yet been set for that hearing.

Cooke subpoenaed seven police officers, telling McDowell he wanted them to testify as to whether any members of the Washington County Narcotics Task Force had participated in the search, or if any information had been disseminated outside the police department.

Cooke also asked whether the injunction would cover the Washington County Narcotics Task Force.

“They are not a party to this case,” Nairn told McDowell.

“They have nobody here to respond on their behalf,” McDowell said of the county government. “I can only grant it as it applies to the city” he said of the relief granted in the preliminary injunction.

None of the officers were called to testify.

None of the information gathered from the search was shared outside the department with the exception of a technician with a private company who was called in to help retrieve the surveillance video from a hard drive, Nairn told McDowell.

What the law would require, in the event police sought another search warrant on a similar facility as a part of a criminal investigation, is that there be a hearing before a judge, Nairn said. The facility would have to be notified of the hearing so that it might argue for any restrictions on a warrant, he said.

Left unresolved was whether confidential informants have been used by police in Wells House in violation of state and federal law, Cooke said.

Wells House amended its complaint to request that evidence be heard at Tuesday’s hearing about informants, but McDowell ruled that it had not been filed early enough to allow the city time to respond.

Cooke said that the issue could be heard at a subsequent hearing.

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