Montgomery County police, investigating complaints about sexual liaisons between homosexuals, have secretly filmed a men's restroom in Wheaton Plaza and made 32 arrests, prompting a challenge by Montgomery County's chief public defender.
But despite the police campaign, county prosecutors are allowing the men to plead guilty to reduced charges, aggravating a feud between the police chief and the state's attorney.
Police Chief Bernard D. Crooke said that the action in November was necessary to respond to complaints from Wheaton Plaza stores and customers, who "felt they were victims of a distasteful, criminal activity" at the restroom in the Woodward & Lothrop store.
Public Defender Thomas B. Cooke said in an interview Friday that the police surveillance, in which everyone using the restroom was monitored from a camera hidden in the ceiling, was illegal under state and federal law.
In a motion filed Jan. 3 in District Court, Cooke argued that evidence collected by police in the investigation should be suppressed because it violates the "justifiable, reasonable expectation of privacy" that a person has when using a restroom.
He said that he intends to file a similar motion in another case later this month involving another defendant.
The investigation in Montgomery follows a similar crackdown last year on homosexual activity at Seven Corners and Springfield malls, where Fairfax County police said they used a two-way mirror to monitor activities. Such surveillance has drawn criticism from gay rights groups.
A spokesman for Woodward & Lothrop declined to comment on the filming, except to say that the store cooperated with police on the matter.
Crooke insists that the surveillance, which was conducted by two to four police officers during a two-week period, was legal and that his office confirmed that with the state's attorney's office before the investigation began.
State's Attorney Andrew L. Sonner said, however, that although he believes that the surveillance was legal, he and his staff believed that it was inappropriate and that there is more important work for police and prosecutors to do.
Therefore, Sonner said, he and his administrative staff made a policy decision to drop the charges of indecent exposure, prostitution and unnatural and perverted sex acts against the 32 defendants as their cases go to court if the men agree to plead guilty to disorderly conduct, a lesser charge.
"They [police] did in these cases call . . . and ask if it would be a violation of the law to monitor the activities in the restroom," Sonner said.
" . . . It wasn't a violation, but that doesn't mean it is a proper use of [police and prosecutorial] resources," he said. "We felt that essentially what was involved was disorderly conduct," he said.
Also, Sonner said, the police investigation of restroom activities was an "enforcement decision made without consultation with us." In fact, Sonner said, police investigations should be made in coordination with prosecutors. "They can't just dump these cases on our desks."
Finally, Sonner said, the use of television monitors in the men's room, even if legal, is "too intrusive."
Crooke characterized Sonner's comments as "hilarious."
"First, they [the state's attorney's office] say it is legal; then they say it is an intrusion on people . . . . Who is being intruded on here? Who is being offended? It is the decent, law-abiding people and their children . . . . Talk about intrusion of rights," Crooke said.
As for misappropriation of manpower, Crooke said he personally would prefer having his men working other cases. "And 99 percent of the time, they are," he said, "but occasionally we have to do this because of numerous complaints, and as long as I am chief of police, I will be responsive to citizen complaints. If they aren't satisfied, because the state's attorney doesn't want to do anything about these cases, then I will direct them to the state's attorney and let them complain to him."