On one hand, it’s great to see a ruling like this. On the other hand, it’s not going to set any precedent, not even in its own jurisdiction. But it does push this conversation forward, judicially speaking, which means other cases reliant on ALPR tech have some new reference material to add to challenges of searches.
But that’s the bad news up front. Let’s get to the good stuff. And that stuff is a court recognizing that a license plate reader search doesn’t occur in a vacuum. The government will always argue — as it did here — that there’s no expectation of privacy on public roads. Therefore, any plate read (and any subsequent search of an ALPR database) is no different than a cop physically seeing a license plate on a passing car and then proceeding with whatever information they happen to have on hand.
Except it’s definitely not like that at all, not when plate readers are gathering 20 billion plate/location images a month. And that’s just Flock Safety, whose cameras and constantly swelling database are at the center of this decision [PDF].
What we have here is a pretextual stop that (very) eventually resulted in the discovery of 91 lbs. of meth. This stroke of luck belongs to Tulsa County Deputy Freddie Alaniz, who saw a vehicle drive by with California plates and decided to play the odds. From the federal court ruling:
Alaniz then pulled his vehicle onto the highway to follow the Mazda for no apparent reason other than the fact that it had a California license plate. Alaniz also ran a query on the Flock system for the California license plate number on the Mazda SUV. Both Flock and VehicleManager provide users an option for the reason the query is being run. The reasons Alaniz put in those systems for running the queries were “traffic violation,” and “investigation.” At the time of those queries, all Alaniz knew was that the vehicle had a California license plate.
The eventual traffic stop (for lane change violations and following too closely) quickly became an investigative stop (albeit not officially). The deputy asked the driver several questions about her recent travels, attempting to sniff out any differences between her narrative and the one provided by the Flock ALPR search he had performed while following her down the highway. To do this, Alaniz performed a nationwide search of the database even though he was apparently only troubled by the driver’s semi-carelessness on the road. (Also of note: the deputy was unable to access any Flock data from California because that state appears to have finally succeeded in blocking outside searches.)
Free to go is never free to go, not when an officer has ulterior motives:
Alaniz then completed the stop by returning Kyle’s license to her and giving her a warning. After that was done, Alaniz asked Kyle if she would answer some questions, which Kyle agreed to do.
A few minutes later and it looks like we have an unlawfully extended stop:
Alaniz asked Kyle for consent to search her vehicle, and she denied the request. Immediately after Kyle refused, Alaniz asked for backup and told Kyle that she was detained so he could have his dog sniff her car.
While Alaniz explained the next steps, Kyle disclosed that she had some marijuana in the car. She asked Alaniz if she could give it to him because she knew that Alaniz’s dog would alert to the marijuana. Alaniz stated, “I am not worried at all for a little bit of marijuana, that’s not what I’m looking for,” but he proceeded with detaining Kyle to deploy his dog for a drug sniff. Alaniz also responded to a radio communication by stating “it’s non-pressing, I’ve just got a refusal on k9 deployment.”
Given this development, the court had multiple reasons to toss the evidence. The decision says the stop itself was clean due to traffic violation caught on camera. But the stop was illegally extended. That alone would have been enough, but fortunately the court decided to fully address Kyle’s challenge of the ALPR search. That’s where things get really interesting.
The court says it’s no longer acceptable to maintain the illusion that always-on ALPR systems can be excused with the dated assumption that no expectation of privacy exists when traveling on public roads. And courts certainly don’t need to maintain this pretense on behalf of law enforcement, which has enjoyed an exponential growth in collection/retention abilities with nearly zero added constraints.
The use of the ALPR camera system described by Alaniz in this case credibly invokes concerns raised in both Carpenter and Chatrie. Alaniz had access to an entire month’s worth of location data tied to the license plate on Kyle’s car, including more than fifty sightings across multiple states. This is not the same fine-tuned level of detail that something like a cell phone reveals about the whole of someone’s physical movements. But by virtue of how ALPR technology works, Alaniz and other officers using these systems have access to a continuously updated location history for all vehicles caught on ALPR cameras within the network. This is a type of indiscriminate mass surveillance. It is not targeted on a single individual, as in Carpenter. It is a tool that collects information about all vehicles that pass by any network-connected camera at all times, and it serves up the information to law enforcement on demand.
And because the government likes to play dumb when faced with simple statements like this, the court breaks it down further, making it perfectly clear that what cops think is “reasonable” is nothing any actual reasonable person would agree with, much less consider an acceptable use of law enforcement technology.
Think about it this way. We might reasonably expect our friends and family to tell us something like: “Hey, I saw you out driving by the store last week.” But we do not expect people we know—let alone strangers, and especially not law enforcement—to randomly approach us to say: “Hey, I have been following your car for the last 30 days, and here is a detailed log of every place your vehicle has been with supporting photographic evidence. I am also going to share this information with law enforcement throughout the country so they know your whereabouts, too.” Freedom from persistent, dragnet-style surveillance while in public is not a foreign concept in our society, and it is a reasonable expectation that society already accepts.
Still not enough? There’s more, just in case the government thinks it can bluff its way through this by setting its deliberate obtuseness to “MAX.”
To be sure, ALPR technology does not provide the same precision in location information as cell phones. But it could still reveal a lot about a person’s whereabouts, and it is easy to imagine the kinds of sensitive information it collects. It could track and log a couple struggling to start a family at the fertility clinic. It could show how often someone visits a liquor store or casino. It could show which doctor someone goes to or what lawyer’s office someone visits. It also collects mundane information about people’s commutes, but it collects a tremendous amount of such information all the time. It is possible that a dedicated team of law enforcement officers could constitutionally collect this information about one car—and its driver—by following that vehicle on public roadways over a month. But this leaves the question of why is it the government’s business where everyone goes all the time? The government cannot go snooping through our personal lives and business without an adequate basis to do so. That is what the Supreme Court has said since its decision in Katz through its decision in Chatrie this year, nearly sixty years later. It is not too much to draw the line at indiscriminate mass surveillance.
Amen. Of course, I’m sure the government is already crafting the argument that it is too much to draw the line at indiscriminate mass surveillance in preparation for its inevitable appeal. But until then, we have this, which makes all the points the beneficiaries of mass surveillance resolutely refuse to recognize.