An Ohio judge threw out key evidence in a murder case earlier this month because the prosecution improperly relied on facial recognition technology, highlighting the limitations of a tool being widely adopted by police departments across the country.

According to court documents, Blake Story was shot in Cleveland last February, and police used surveillance footage taken six days later to tie the killing to Qeyeon Tolbert. Police submitted the video evidence to a regional fusion center, which ran it through Clearview AI’s facial recognition software.

The police did not identify Tolbert without the tool’s help, court records show. Police also neglected to mention that they used Clearview’s system to identify Tolbert in the search warrant affidavit which ultimately allowed them to enter Tolbert’s apartment.

Investigators turned up a gun and other evidence in the search, but on January 9 an Ohio judge sided with Tolbert’s defense lawyer who argued that law enforcement’s heavy reliance on Clearview’s system and the fact that they did not disclose its use meant they lacked probable cause. 

“The search of the defendant’s residence produced a variety of items including clothing, a gun and statements, all of which need to be suppressed should this court find a violation, as they are the fruit of the poisonous tree,” the defense lawyer wrote in his motion to suppress the evidence.

Although Clearview AI and other facial recognition technology have become popular tools among police departments for identifying suspects, the Ohio case suggests they have limitations when it comes to the courtroom.

Clearview includes a disclaimer in its reports warning law enforcement that its findings are not “intended or permitted” to be used as admissible evidence, according to court records.

The company also warns on its website that search results established by its software “should not be considered definitive.”

“Clearview makes no guarantees as to the accuracy of its search-identification software,” the website says. “Clearview is neither designed, nor intended … to be used as a sole source system for conclusively establishing or determining an individual’s identity.”

The Cleveland case is bad news for other prosecutors around the country: Police are increasingly using facial recognition technology to arrest suspects, often without any additional evidence that those they are arresting committed crimes. 

What’s next

A team of Washington Post reporters recently reviewed detailed records from 23 police departments using facial recognition technology and found that 15 of them made arrests based solely on alleged facial recognition matches.

In some cases, arrests made based on the technology’s results implicated innocent people, the Post reported.

Clearview AI’s facial recognition database now contains 30 billion facial images, the company says. It scrapes facial images from the web and social media sites and is used by local, state and federal law enforcement investigating crimes. 

The fact that many police departments are now using facial recognition as their sole basis for arrests is troubling, critics say, given Clearview’s own warnings about its system’s accuracy.

Images obtained “under real world conditions” can be less accurate than those derived from other circumstances, according to the company’s website.

“The quality of a submitted probe image, the lack of online images of a depicted individual in Clearview’s database and other factors can impact and potentially reduce the accuracy of the Clearview search results,” the website says. It adds that search results may mix together images of different people with similar looks.

The larger legal implications of the Cleveland ruling are still unclear, but the judge’s decision could foretell a bigger problem for prosecutors largely relying on evidence obtained from a Clearview match.

Prosecutors appealed the judge’s decision excluding the evidence on January 14, saying they likely cannot obtain a conviction as a result. 

Without the gun and other evidence seized via the search warrant, the judge had “destroyed any reasonable possibility of effectively prosecuting the charge,” prosecutors said in court documents.

Cleveland police and Clearview did not respond to a request for comment.

A spokesperson for the Cuyahoga County Prosecutor’s Office said via email that the office has filed an appeal.

“As the appeal will be pending in the 8th District Court of Appeals and the case remains open, we decline to comment further,” the spokesperson said.