In United States v. Jones,[1]
the United States Supreme Court held that the physical attachment of a Global
Positioning System[2]
(GPS) tracking device on a vehicle constituted a search under the Fourth
Amendment[3]of the United States Constitution.
This decision has left law enforcement questioning the policies and
procedures they can employ when utilizing technology to track and store
information on individuals suspected of criminal conduct. The reality is that technology is
constantly changing. Law
enforcement needs to be able to change and adapt to the technology in order to
use the technology to enhance the investigation of criminal activity.
The Automatic License Plate Recognition reader, more commonly referred to as an ALPR, has quickly become a common tool utilized by law enforcement throughout many police departments.[4] The ALPR uses digital cameras mounted on a law enforcement vehicle or at stationary locations to snap images of passing license plates.[5] As a vehicle approaches, the ALPR takes a series of photographs and stores them in a digital file. The most advanced can photograph up to 1,800 license plates per minute at a speed of up to 140 miles per hour. These digital photographs are transmitted to a computer system inside of the vehicle and optical character recognition software converts the plate numbers in the photographs into text. Once converted, the ALPR system compares the plate numbers to available databases, often called hotlists, including lists of stolen automobiles, active arrest warrants, suspended licenses and registrations, and AMBER alerts. This is a valuable tool for law enforcement as it essentially observes and compares information faster than an officer would be able to do and then notifies the officer when a license plate matches something on a hotlist.
The Automatic License Plate Recognition reader, more commonly referred to as an ALPR, has quickly become a common tool utilized by law enforcement throughout many police departments.[4] The ALPR uses digital cameras mounted on a law enforcement vehicle or at stationary locations to snap images of passing license plates.[5] As a vehicle approaches, the ALPR takes a series of photographs and stores them in a digital file. The most advanced can photograph up to 1,800 license plates per minute at a speed of up to 140 miles per hour. These digital photographs are transmitted to a computer system inside of the vehicle and optical character recognition software converts the plate numbers in the photographs into text. Once converted, the ALPR system compares the plate numbers to available databases, often called hotlists, including lists of stolen automobiles, active arrest warrants, suspended licenses and registrations, and AMBER alerts. This is a valuable tool for law enforcement as it essentially observes and compares information faster than an officer would be able to do and then notifies the officer when a license plate matches something on a hotlist.
Some departments are using
the ALPR not just for this observational comparison, but also for data
collection. Meaning they not only
alert an officer as to whether a license plate has hit on a hotlist, but it
also tracks the time and date of every license plate it reads. This information is placed in a
searchable database whether or not any evidence of wrong doing was found and
the information can be stored indefinitely. [6]
It is not difficult for law
enforcement to easily determine the likely driver of a given car by
cross-referencing a license plate number with state motor vehicle records. With enough ALPR systems installed in a
community, law enforcement could theoretically create an accurate and pervasive
record of a person’s movements over months or years. This of course can be very helpful for law enforcement in
cases of child abduction for example.
Essentially, after the report of a child abduction, law enforcement can
pull all registered license plate owners in the area of the abduction at the
time it occurred.
The American Civil Liberties
Union (ACLU) however, has expressed concerns about police departments that are
gathering and storing information about the travel patterns of all vehicles,
regardless of whether they are vehicles of interest.[7] The fear from a privacy
standpoint is that once it is effectively deployed nationwide, it can be used
as a kind of mass, warrantless tracking system.[8]
Such concerns prompted state Rep. Todd Rutherford, D-Columbia to propose a bill
in the South Carolina House that would ban the technology in the state.[9]
“There is nothing to protect [the data],” Rutherford said “All they are
doing is collecting it.”[10]
According to the ACLU, there are currently only two states, Maine and New
Hampshire, with “positive laws” governing how the technology can be used. New Hampshire bans them, and Maine
requires data to be deleted after twenty-one days unless it is part of an
investigation.[11] The ACLU says “responsible deletion of
data is the exception, not the norm.” [12]
In light of the Jones decision, the ALPR will not likely
mandate any type of judicial review.
The ALPR is not a device that is placed on any individual’s vehicle for
the purposes of tracking the person.
The ALPR is installed on law enforcements’ vehicles and it
indiscriminately reads license plates and compares them to databases which
contain hotlists of wanted suspects and traffic offenses listed to their
registration or license. The Court
determined in Jones, that a search
now occurs both when there is a state-law trespass on property and when the
government infringes upon a reasonable expectation of privacy.[13] The Court explained that “Katz did not narrow the Fourth
Amendment’s scope.”[14] The Court further opined Katz, “established that ‘property rights
are not the sole measure of Fourth Amendment violations,’ but did not ‘snuf[f]
out the previously recognized protection for property.”[15]
Additionally the Court has set
precedent that people have no reasonable expectation of privacy in public
spaces, because “the police cannot reasonably be expected to avert their eyes
from evidence of criminal activity that could have been observed by any member
of the public.”[16] Further, in Knotts, the Court concluded that “a person traveling in an
automobile on public thoroughfares has no reasonable expectation of privacy in
his movements from one place to another.”[17] Finally, the ALPR does not give police
any extrasensory ability or intrude in the home as the Court found to be the
troubling factor in Kyllo.[18]
The data compilation kept by
law enforcement likely will not be considered a Fourth Amendment violation
either. The Court in Smith v. Maryland[19],
held that warrantless access to pen registers raises no Fourth Amendment
concerns. The court reasoned that
a person ought to understand that her phone company may collect a record of all
the phone numbers she dials. The
Court further rationalized that a person voluntarily turns over this
information to the phone company and should reasonably expect this information
to be possibly conveyed to others.
Thus a person traveling in a community that utilizes ALPR should
reasonably expect that their license plates may be read by advanced
technologies and recorded into a database. The truth is that most ALPR’s are not only utilized by law
enforcement but are used
also as a method of electronic toll collection on pay-per-use roads and
cataloging the movements of traffic or individuals like E-ZPass.[20] Law enforcement can easily subpoena
information on registration plates captured by these entities as well. Justice Sotomayor, in Jones,
did caution in her concurring opinion that this third party issue may need to
be accessed again when pertaining to information given over by an individual to
third parties, however until it is, law enforcement should be safe to track
suspects of criminal activity through the use of an ALPR reader.
Diana Cobo
Junior Blog Editor, Criminal
Law Brief
Image by: Whirling Phoenix
[1] See United
States v. Jones, 132 S. Ct. 945 (2012). Available at http://scholar.google.com/scholar_case?case=6122276400056758151&q=united+states+v.+antoine+jones&hl=en&as_sdt=2,21&as_vis=1
[2] U.S. Air
Force Fact Sheet: Global Positioning Systems Directorate, L.A. Air Force Base
(Jan. 7, 2011), available at http://www.losangeles.af.mil/library/factsheets/factsheet.asp?id=5311.
[3] U.S. Const.
amend. IV.
[4] http://en.wikipedia.org/wiki/Automatic_number_plate_recognition
[5] Stephen
Rushin, The Judicial Response To Mass
Police Surveillance, 2011 U. Ill. J.L. Tech. and Pol’y 281, 285 (2011).
[6] ACLU, Automatic License Plate Readers: Are You Being Followed? Available
at http://www.aclu.org/maps/automatic-license-plate-readers-are-you-being-followed
[7] Rebecca
DiLeonardo, ACLU requests information on
automatic license plate readers, Jurist; available at http://jurist.org/paperchase/2012/07/aclu-requests-information-on-automatic-license-plate-readers
[8]Ryan
Gallagher, Police Across U.S. Quietly
Turning to Cameras That Track All Vehicles’ Movements: Survey available at http://www.slate.com/blogs/future_tense/2013/01/14/automatic_license_plate_readers_survey_shows_most_u_s_police_agencies_plan.html
[9] Christopher
McKagen, Columbia Representative’s Bill
Would Ban Johnsonville’s Use Of License Plate Readers, available at http://www.scnow.com/observer/news/article_3eee84c8-5aa1-11e2-888f-0019bb30f31a.html
[10] Id.
[11] Julia
Angwin and Jennifer Valentino-Devries, New
Tracking Frontier: Your License
Plates, available at http://online.wsj.com/article/SB10000872396390443995604578004723603576296.html
[12] ACLU, Automatic License Plate Readers: A Threat To
American’s Privacy, available at http://www.aclu.org/automatic-license-plate-readers-threat-americans-privacy
[13] See Jones, 132 S. Ct. at 950 (citing Katz, 389 U.S. 347, 347 (1967)).
[14] See Jones, 132 S. Ct. at 951.
[15] Id (quoting Soldal v. Cook County, 506 U.S. 56, 60 (1992)).
[16] See California v. Greenwood, 486 U.S.
35, 43-44 (1988). Available at http://en.wikisource.org/wiki/California_v._Greenwood
[17] See United States v. Knotts, 460 U.S. 276, 281 (1983). Available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=460&invol=276
[18]
See Kyllo v. United States, 533 U.S.
27 , 36 (2001). Available at http://scholar.google.com/scholar_case?case=15840045591115721227&q=kyllo+v.+united+states&hl=en&as_sdt=2,21&as_vis=1
[19] See Smith v. Maryland, 442 U.S. 735, 742
(1979). Available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=442&page=735
[20] http://en.wikipedia.org/wiki/Automatic_number_plate_recognition
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