Federal judge rules warrantless Flock ALPR search unconstitutional as national opposition grows

A federal judge in Oklahoma has ruled that a law enforcement officer's warrantless search of a nationwide automated license plate reader database violated the Fourth Amendment, a potentially significant development as opposition to Flock Safety surveillance cameras grows in Elk Grove and communities across the country.

U.S. District Judge Sara E. Hill of the Northern District of Oklahoma issued the ruling Wednesday in United States v. Melisa Susan Kyle, granting a defense motion to suppress evidence obtained following a traffic stop.

story continued below

The case involved Tulsa County sheriff's Deputy Freddie Alaniz, who had access to two automated license plate reader systems, Flock and Vehicle Manager. Those systems allowed him to obtain at least 30 days of vehicle-location information from multiple states.

According to the ruling, Alaniz began following Kyle's Mazda SUV after seeing its California license plate and searched the plate in Flock. At that point, the judge found, all the deputy knew was that the vehicle carried a California plate.

The ALPR search showed the vehicle had traveled toward the California-Arizona border before returning toward Missouri. Alaniz later stopped Kyle for traffic violations, questioned her about her travel and eventually detained her for a drug-sniffing dog after she refused consent to search the vehicle.

Hill concluded that the original traffic stop was justified but that Alaniz lacked reasonable suspicion to extend it into a drug investigation. She ordered the resulting evidence suppressed.

More consequential for law enforcement agencies using Flock, however, was Hill's separate finding that the deputy's search of Kyle's historical ALPR records itself constituted an unconstitutional warrantless search.

Hill noted that neither the 10th U.S. Circuit Court of Appeals nor the U.S. Supreme Court has decided whether law enforcement use of ALPR databases constitutes a Fourth Amendment search. She also acknowledged that nearly every court considering the question previously concluded that motorists generally have no reasonable expectation of privacy concerning their movements on public streets.

Hill nevertheless distinguished today's large-scale ALPR networks from older forms of vehicle surveillance.

She said the technology is approaching the kind of "dragnet" surveillance contemplated more than four decades ago in the Supreme Court's United States v. Knotts decision.

The search of Kyle's plate produced more than 50 records documenting her vehicle's whereabouts across the country for an entire month. Hill characterized the system as "indiscriminate mass surveillance" because it continuously gathers information about vehicles regardless of whether their drivers are suspected of wrongdoing.

Hill said ALPR information can reveal far more than routine driving patterns, including visits to doctors, lawyers, fertility clinics, casinos and other potentially sensitive locations.

Watch the video below of an Elk Grove resident expressing this same concern during a recent city council meeting.

"It is not too much to draw the line at indiscriminate mass surveillance," Hill wrote.

Hill ultimately found the ALPR query invaded Kyle's reasonable expectation of privacy in the totality of her physical movements. Because Alaniz had neither probable cause nor a warrant when he searched her location history, Hill ruled the search violated the Fourth Amendment and ordered evidence resulting from it suppressed.

National opposition grows

The decision comes as Flock and ALPR's in general faces growing resistance from communities and civil liberties organizations nationwide.

The ACLU said this summer that opposition has emerged across the political spectrum and that communities around the country have terminated Flock contracts over privacy and data-sharing concerns.

That opposition continues to spread. El Paso County, Colorado, recently announced it was ending its use of Flock amid statewide concerns, while communities elsewhere are considering restrictions, contract cancellations and public votes on the technology.

California has also become a center of the backlash. The ACLU of Northern California reported Sept. 23 that residents in several communities have organized against Flock systems and persuaded some local governments to cancel contracts and remove cameras.

Elk Grove residents mounting their own challenge

The same debate has reached Elk Grove, where approximately 90 ALPR cameras are deployed and the citizen group DeFlock Elk Grove is pressing the city to terminate its Flock contract and reject replacement ALPR systems.

The organization is seeking cancellation of the contract, release of police audit data and an independent examination of how Elk Grove's ALPR information has been searched and shared. It alleges that an audit of records showed outside entities conducted the overwhelming majority of searches involving Elk Grove data.

The opposition has repeatedly spilled into Elk Grove City Council meetings vexing Mayor Bobbie Singh-Allen.

As Elk Grove News reported Sept. 10, residents challenged police officials' defense of ALPR surveillance during a Sept. 9 City Council meeting, including concerns about Fourth Amendment protections and the consequences of erroneous license plate matches.

More recently, Elk Grove News reported on the growing national scrutiny of Flock after a researcher mapped the company's surveillance network.

For Elk Grove opponents, the Oklahoma decision does not settle their constitutional argument.

It does, however, provide something they previously had little of: a federal court ruling expressly agreeing with the proposition that accessing extensive historical ALPR location records without a warrant can cross the constitutional line from ordinary police investigation into an unreasonable search.

And with the constitutional question still working its way through federal courts, the battle over Flock may increasingly move from city council chambers to courtrooms.