June 10, 2024 | By Nick Hurston | Virginia Lawyers Weekly |
A trial court found that Norfolk’s newly installed automatic license plate reader, or ALPR, camera system constituted a Fourth Amendment search and granted a defendant’s motion to suppress evidence and poisonous fruit gathered from the warrantless search.
Citing U.S. Supreme Court precedent, the commonwealth argued that “what a person knowingly exposes to the public … is not subject of Fourth Amendment protection.”
Judge Jamilah D. LeCruise, however, said a person doesn’t surrender all Fourth Amendment protection by venturing into the public sphere.
“Prolonged tracking of public movements with surveillance serves to invade the reasonable expectation citizens possess in their entire movements and thus requires a warrant,” the Norfolk Circuit Court judge wrote.
Since the commonwealth didn’t obtain a warrant in this case, LeCruise suppressed evidence the police gathered via ALPR in Commonwealth v. Bell (VLW 024-8-039).
FLOCK system
Last year, the Norfolk police installed a FLOCK system of 172 ALPRs that could track the location of vehicles by license number and physical description. Stored for 30 days, the data is available for any Norfolk officer to access and is shared with other police departments.
The Norfolk FLOCK system discovered a “hit” on a vehicle described by witnesses as being involved with a robbery in Chesapeake, leading to their arrest of Jayvon Bell.
Bell moved to suppress photographs of the vehicle he was driving, as well as an incriminating statement he made as fruit of the poisonous tree, because the police didn’t seek a warrant to obtain the license plate information from FLOCK.
Privacy expectation
LeCruise found “the collection and storage of license plate and location information by the FLOCK system constitutes a search within the meaning of the Fourth Amendment and should require a warrant.”
She also agreed with Bell that, in the current technology age, vehicles are akin to cellular telephones as they reveal the continued location of civilians.
“Courts have already determined that the government’s acquisition of a defendant’s historical cell-site location information (CLSI) from wireless carriers is a search under the Fourth Amendment,” the judge said, looking to Carpenter v. United States.
Absent exigent circumstances, the Carpenter court found a warrant was required to obtain CLSI.
“Furthermore, the Court found that an individual maintains a legitimate expectation of privacy in the record of his or her physical movements as captured through cell-site information,” LeCruise pointed out.
She rejected the commonwealth’s position that Bell didn’t have a reasonable expectation of privacy in his vehicles while a public sphere.
“‘[A] person does not surrender all Fourth Amendment protection by venturing into the public sphere,’” LeCruise wrote. “‘To the contrary, what one seeks to preserve as private, even in an area accessible to the public may be constitutionally protected. Individuals have a reasonable expectation of privacy in the whole of their physical movements.’”
The judge found the FLOCK system collected and recorded a vehicle’s movements similarly to CLSI or installation of a global positioning system device on a vehicle, both of which are searches requiring a warrant.
Thus, she held that “the breadth of FLOCK cameras covering the entire City of Norfolk and the storage component is also akin to a GPS device and requires a warrant.”
Also, in Leaders of a Beautiful Struggle v. Baltimore Police Department, the 4th U.S. Circuit Court of Appeals found that aerial surveillance with data storage was an unconstitutional warrantless search because it permitted law enforcement to deduce from the whole individual’s movements.
“Like the aerial surveillance in Baltimore, the highway surveillance program in Norfolk must comply with the warrant requirement,” LeCruise said.
Foundational issue
LeCruise couldn’t overlook the “foundational issue” systems like FLOCK presented to courts that regularly hear testimony from custodians of records for 911 calls and related event chronologies, cell phone data, social media and red-light cameras.
“In each of those instances, the Defendant himself or herself or counsel may cross examine and challenge these witnesses in accordance with court procedural rules that safeguard the reliability of admitted evidence,” the judge said.
She emphasized that her concern about warrantless use of the FLOCK system “about which the courts of the Commonwealth know so little is due in part to the many ways in which it could be abused.”
With modern technology enabling governments to acquire information about the population at an “unprecedent scale,” the Supreme Court of Virginia noted in Neal v. Fairfax County Police Department that governments could use that information “for a variety of administrative purposes and to help apprehend dangerous criminals.”
“But knowledge is power, and power can be abused,” the Neal court acknowledged.
Unconstitutional search
Here, Norfolk didn’t require training in the FLOCK system. The city also provided all officers with “unfettered” access to FLOCK data stored for 30 days and shared it with neighboring jurisdictions.
“It would not be difficult for mistakes to be made tying law-abiding citizens to crime due to the nature of the FLOCK system and in the event a law enforcement officer would seek to create a suspect where one did not otherwise exist, it would be a simple task and no custodian of record would be presented to the court for testimony or cross examination,” LeCruise wrote. “The court cannot ignore the possibility of a potential hacking incident either.”
Opining that Norfolk’s citizens may be concerned to learn the extent to which police were tracking and maintaining a database of their every movement for 30 days, the judge agreed with Bell’s argument that FLOCK created a “dragnet over the entire city.”
LeCruise observed that times have “undoubtedly changed since Katz [v. United States] and advances in technology will only continue to provide law enforcement with more avenues to combat crime.”
“However, courts must not neglect the underpinning of the Katz decision that ‘Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures,’” she pointed out.
Undecided law
Assistant public defender Christopher Bettis, who represented Bell, said the Supreme Court has clearly voiced concerns about the Fourth Amendment privacy implications of 24-hour surveillance and storage of that data.
“Despite that, the Norfolk police installed these FLOCK cameras without any oversight, with very little public discussion, and did so before the General Assembly had passed any law authorizing this sort of thing,” he told Virginia Lawyers Weekly.
Bettis said this decision in no way limited the police’s power to use the FLOCK system while on the lookout for a vehicle that was stolen or involved in an active crime.
Ramin Fatehi, Norfolk’s commonwealth attorney, said he was surprised no defendant had challenged the FLOCK system earlier. He respectfully disagreed with LeCruise’s decision and cautioned against heavy restrictions on using ALPR data.
“If we put unreasonable restrictions on this technology, it will effectively become unusable,” he told Virginia Lawyers Weekly. “Then what we’re going to get is poor people in communities of color being over policed with as many pretextual stops as the law will allow — or, God forbid, back to stop and frisk.”
Noting that LeCruise’s decision isn’t binding authority, Fatehi expressed confidence that another circuit or appellate court will reach a different conclusion.
“We will see a ruling which demonstrates that use of this technology is constitutionally sound,” he said.
Lauren Whitley, executive director of the Virginia Association of Criminal Defense Lawyers, called this a complicated and undecided area of law.
“I think the judge rightly noted the inability to cross-examine or challenge the authenticity and foundation of a recording,” she noted.
Whitley also found it problematic that FLOCK cameras hold data for 30 days.
“The concern from our perspective is abuse, as well as about private entities and public partnerships where we don’t know where this is data going,” she said.
VLW 024-8-039
Read the original article HERE.
