# COMAR Title 29 — Department of State Police

## Subtitle 08 — Investigations Involving the Exercise of First Amendment Activities

### Chapter 01 — Covert Investigations and Criminal Intelligence

**Authority:** Public Safety Article, §3-701, Annotated Code of Maryland

**Administrative History:** Effective date: March 8, 2010 (37:5 Md. R. 432)

#### Regulation .01 Definitions.

*COMAR 29.08.01.01*

A. In this subtitle, the following terms have the meanings indicated.

B. Terms Defined.

  (1) Covert Investigation.

    (a) “Covert investigation” means an infiltration of or attempt to infiltrate a group or organization in a manner that conceals the identity of the law enforcement agency or the identity of an officer or agent of the law enforcement agency.

    (b) “Covert investigation” does not include the use of plainclothes officers or employees for crowd control and public safety purposes at public events.

  (2) “Criminal intelligence” means information concerning or related to the detection, investigation, deterrence, or prevention of crime or the apprehension and prosecution of a suspected criminal.

  (3) “Department” means the Department of State Police.

  (4) “First Amendment activities” means:

    (a) Activities involving constitutionally protected speech or association; or

    (b) Conduct related to freedom of speech, free exercise of religion, freedom of the press, the right to assemble, or the right to petition the government.

  (5) “Legitimate law enforcement objective” means the detection, investigation, deterrence, or prevention of crime, or the apprehension and prosecution of a suspected criminal.

  (6) Reasonable, Articulable Suspicion of Criminal Activity.

    (a) “Reasonable, articulable suspicion of criminal activity” means an objective, factual basis for initiating or pursuing an investigation, which basis is substantially less than that required to establish probable cause.

    (b) “Reasonable, articulable suspicion of criminal activity” is established when information exists which establishes sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that there is a reasonable possibility that an individual or organization is involved in a definable criminal activity or enterprise.

#### Regulation .02 Purposes.

*COMAR 29.08.01.02*

A. The purposes of this subtitle are:

  (1) To establish the responsibilities of the Department related to investigations involving the exercise of First Amendment activities; and

  (2) To recognize and respect the rights of persons, groups, and organizations engaged in First Amendment activities.

B. This subtitle applies only to investigations involving First Amendment activities.

#### Regulation .03 Policy.

*COMAR 29.08.01.03*

A. The Department shall endeavor to maintain the appropriate balance between the constitutional rights afforded to each citizen and the legitimate needs of law enforcement.

B. The Department shall only engage in intelligence gathering, retention, and dissemination activities that may infringe on First Amendment rights to further legitimate law enforcement objectives and in accordance with the procedures and prohibitions set forth in this chapter.

#### Regulation .04 Procedures.

*COMAR 29.08.01.04*

A. Covert Investigations Involving First Amendment Activities.

  (1) The Department may not conduct a covert investigation of a person, a group, or an organization engaged in First Amendment activities unless the Secretary or designee makes a written finding that the covert investigation is justified because it is based on a reasonable, articulable suspicion that the person, group, or organization is planning or engaged in criminal activity and a less intrusive method of investigation is not likely to yield satisfactory results.

  (2) The written finding shall, if possible, be made in advance of the initiation of the covert investigation or as soon thereafter as is practicable.

  (3) Membership or participation in a group or organization engaged primarily in First Amendment activities does not alone constitute reasonable, articulable suspicion of criminal activity justifying a covert investigation.

  (4) Reports.

    (a) It is the responsibility of the sworn Criminal Intelligence Section (CIS) supervisor to ensure that all activities are properly reported and documented by the covert operative.

    (b) A report shall be prepared on the approved Department form for each and every incident of contact between the covert operative and the target of the investigation.

    (c) A report shall be submitted as soon as possible, but in no case later than 2 working days after the contact. Further delay in the submission of these reports requires the approval from the sworn CIS supervisor.

    (d) Each report shall be reviewed and evaluated by the sworn CIS supervisor to determine if there is a continuing need to conduct the covert investigation involving First Amendment activities.

    (e) The report shall be reviewed not later than 5 working days after its submission, and the decision whether or not to continue with the investigation shall be made in writing and include the reasons for continuing or discontinuing the investigation.

  (5) An investigation involving First Amendment activities shall be terminated when logical leads have been exhausted or no legitimate law enforcement objective justifies the continuation of the investigation.

B. Collection, Dissemination, Retention, Database Inclusion, Purging and Auditing of Records Involving First Amendment Activities.

  (1) The Department may not collect or maintain information solely about the political beliefs, ideologies, or associations of any person, group, or organization, unless the information is relevant to a criminal investigation or there is a reasonable, articulable suspicion that the person, group, or organization advocates, supports, or encourages the violation of any federal, State, or local criminal law that prohibits acts of terrorism, racketeering activity, as found in 18 U.S.C. §1961, violence, extortion, destruction of property, intimidation, harassment, obstruction of justice, or fraud.

  (2) Criminal intelligence related to First Amendment activities shall be reviewed by a supervisor prior to entry into any criminal intelligence file to ensure that:

    (a) It is being retained in accordance with this regulation;

    (b) It has been classified accurately; and

    (c) It reflects the purpose for which the information is collected.

  (3) The Department shall evaluate intelligence regarding First Amendment activities with respect to the reliability of the source and the validity and accuracy of the content.

  (4) A record shall be kept of the source of all information.

  (5) The Department may not knowingly include in its criminal intelligence files any information that has been obtained in violation of Public Safety Article, §3-701, Annotated Code of Maryland.

  (6) Criminal intelligence gathered and maintained by the Department regarding First Amendment activities may be disseminated only to appropriate persons for legitimate law enforcement objectives. Dissemination of criminal intelligence of the type described in this subtitle shall be recorded in such a manner that the recipient of the intelligence, date of dissemination, manner of dissemination, and information disseminated are known.

  (7) The Department shall disseminate criminal intelligence information regarding First Amendment activities only to law enforcement authorities who agree to follow procedures regarding information receipt, maintenance, security, and dissemination that are consistent with the principles underlying the procedures and prohibitions of this subtitle and applicable State and federal law.

  (8) Review and Maintenance of Files.

    (a) All criminal intelligence files related to First Amendment activities shall be maintained in accordance with the goals and objectives of this subtitle and to ensure that these files include information that is accurate, timely, and relevant.

    (b) Reclassifying and purging information in the criminal intelligence files shall be done on an ongoing basis as documents are reviewed.

    (c) All information retained as a result of this review shall reflect the name of the reviewer, date of the review, and an explanation of the decision to retain the information.

    (d) Purging Files.

      (i) If a file has no further informational value or meets the purging criteria of any applicable law, it shall be destroyed.

      (ii) A record of purged files shall be maintained by the Department.

      (iii) Any information that is misleading, obsolete, or otherwise unreliable shall be purged.

  (9) Audit; Report.

    (a) An audit of these criminal intelligence files is to be undertaken annually.

    (b) The audit shall reflect whether documents have been created, retained, disseminated, and purged in accordance with State and federal law.

    (c) The audit report shall be submitted to the Director, Criminal Intelligence Section, for review and implementation of any needed corrective actions.

C. Training and Review of Regulations.

  (1) The Department shall ensure that all members assigned to the section receive training regarding this subtitle and applicable federal and State law.

  (2) Training shall be documented in the member's training records.

  (3) An annual review of this subtitle shall be conducted and new proposals made based on recent court decisions, changes in federal or State law, and national best practices.

#### Regulation .05 Prohibited Practices.

*COMAR 29.08.01.05*

A. A member of the Department may not investigate, prosecute, disrupt, interfere with, harass, or discriminate against a person engaged in a First Amendment activity for the purpose of punishing a person for, retaliating against a person for, or preventing or hindering a person from exercising constitutional rights.

B. Members of the Department may not:

  (1) Collect or disseminate information that becomes known to them through covert investigations or through access to criminal intelligence, except as specifically provided by this subtitle and State and federal law;

  (2) Employ or direct an individual to obtain intelligence data in a manner that is inconsistent with this subtitle or State and federal law; or

  (3) Use any information that becomes known to them through covert surveillance, covert investigations, or access to criminal intelligence for political or economic purposes or for personal gain.