Police found 91 pounds of meth in Melisa Kyle's vehicle. Nobody has to squint very hard to understand why law enforcement wanted the drugs off the highway.
The harder question is how police got there.
A Tulsa County sheriff's deputy saw Kyle driving a Mazda SUV with California plates in Oklahoma. He later searched automated license-plate-reader databases, including Flock Safety's network, and pulled up more than 50 records showing where the vehicle had been during roughly a month of travel. He used her travel history as part of the basis for searching the SUV.
Police found the meth.
U.S. District Judge Sara Hill still ruled the warrantless database search violated the Fourth Amendment, and suppressed the evidence that followed it. She described the technology as a form of “indiscriminate mass surveillance.”
There’s a reason this case deserves the spotlight beyond a single drug prosecution.
A police officer seeing your license plate on a public highway isn’t particularly controversial. Police have been able to observe cars, write down plate numbers, and follow suspects for generations. Flock changes the scale.
Its cameras record plates throughout a community and place those observations into a searchable database. Instead of an officer remembering seeing your car Tuesday afternoon, investigators can potentially reconstruct where a vehicle repeatedly appeared over days or weeks.
Hill’s ruling focused on exactly that distinction. More than 50 location records allowed investigators to examine a significant portion of Kyle’s movements without first persuading a judge that probable cause existed.
From 404 Media:
The officer’s “use of the ALPR Systems was an Unconstitutional Warrantless Search,” and “was not supported by probable cause, and it was done without a warrant in violation of [the defendant’s] Fourth Amendment rights,” the judge, Sara Hill, wrote, implying that the law enforcement officer should have obtained a warrant before searching for the vehicle in Flock’s system. There are currently more than a hundred thousand warrantless searches of the Flock system every month, according to audit logs viewed by 404 Media. Hill's decision will not set a binding precedent, and there are several other cases throughout the nation considering the legality of warrantless ALPR searches.
Hill argued that previous judge opinions saying Flock searches were not a Fourth Amendment violation because they track cars in public do not consider the context that Flock’s nationwide network is quickly “approaching dragnet-type law enforcement practice,” and that courts should update their understanding of the technology moving forward.
Flock disagrees strongly with the ruling. The company argues that license plates are exposed to public view and that courts have repeatedly allowed law enforcement to use plate-reader technology. Its representatives have also said the Oklahoma decision is limited to one case, isn’t binding precedent elsewhere, and conflicts with other court decisions.
Those arguments have weight; Hill’s order doesn’t suddenly make every Flock camera unconstitutional, nor does it erase decades of law recognizing that people generally have fewer expectations of privacy when traveling on public roads.
Still, technology changes what an old rule means in practice.
One police officer watching one highway is surveillance, while tens of thousands of networked cameras capable of searching a person’s past movements are something qualitatively different. The constitutional problem isn’t necessarily the photograph. It’s the database created from millions of photographs and the ability to search backward through someone’s life.
Congress is paying attention.
Sen. Josh Hawley (R-Mo.) recently held a judiciary subcommittee hearing examining Flock and other automated surveillance systems. Hawley has pushed for federal privacy safeguards and questioned executives about how their systems collect, retain, and share Americans’ travel data.
From Sen. Hawley’s press release:
“Flock is a privately held company. Based on what we know, it’s backed by a venture capital firm. It’s worth about $10 billion, and it has amassed in a very short time frame a surveillance network unlike any we’ve ever seen in this country. And really, what makes it unique, based on what we can tell from the reporting and the reporting on what these networks can do… What seems to make these networks unique is not just the sheer number of cameras, it’s the fact that they’re all linked together and powered and searchable by AI. It’s unlike anything we’ve ever seen in this country before.”
“This is still the United States of America, and it shouldn’t be that when you walk out your door in the morning, you just have to agree and assent and accept the fact that you’re going to be on camera morning, noon, and night,” Hawley asserted.
On the other side of almost every political argument imaginable, Sens. Bernie Sanders (I-Vt.), Jeff Merkley (D-Ore.), and Rep. Alexandria Ocasio-Cortez (D-N.Y.) introduced the Ban Flock Act. Their proposal would prohibit federal agencies from using automatic license-plate readers, and restrict federal funding for state and local governments that use them.
From Merkley’s press release:
“Your right to privacy includes the freedom to move around your community without every move being monitored,” Merkley said. “Right now, Flock is selling its cameras nationwide, laying the groundwork for a surveillance state while enriching corporate executives. No one should have this unchecked surveillance power at their fingertips, which is why I’m teaming up with Senator Sanders to rein in this dangerous technology.”
Last month, I wrote about Wisconsin’s own fight over Flock cameras and the Fourth Amendment. At the time, the constitutional question was moving through the courts.
Now a federal judge has drawn the line.
ICYMI: Wisconsin’s Flock Fight Just Became a Fourth Amendment Case
You don’t have to sympathize with someone allegedly transporting 91 pounds of meth to care about how the evidence was obtained. Constitutional protections are easiest to defend when the defendant is sympathetic. Their real test comes when the evidence is ugly and the crime is serious.
Police need to catch drug traffickers.
But they also should get a warrant when the Constitution requires one.
Technology is giving government powers the Founders never could’ve imagined, which makes the old constitutional questions more important, not less. PJ Media VIP helps us keep following those fights after the headlines disappear. Join today and save 60% with promo code FIGHT.
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