A lot of people have it out for Automatic License Plate Readers, especially Flock Safety. In the case USA v. Meilisa Susan Kyle, Flock Safety did not violate Ms. Kyle’s rights, the Sheriff’s Deputy did.
It’s About the Evidence
We’re not reviewing the case, but an evidentiary hearing on the Ms. Kyle’s motion to suppress the evidence form the search. This started with a traffic stop initiated by Tulsa County Deputy Sheriff Freddie Alaniz.
One evening while he was on duty, Alaniz parked his patrol vehicle on the side of the highway to observe traffic passing by. Among other cars, Alaniz saw a Mazda SUV with a California license plate. The Mazda’s license plate was picked up by the camera on Alaniz’s car. 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.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
The problems with this stop start at its very beginning. Deputy Alaniz decided to follow a car, apparently for the sole reason that it had out of state plates. However, that didn’t stop Deputy Alaniz from investigating.
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.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
So we have an unreasonable search and falsifying evidence. At the time of the query, Deputy Alaniz had not observed a traffic violation, and therefore had nothing to investigate.
After Alaniz ran the ALPR query, he saw that the Mazda made a trip from Locust Grove, Oklahoma, toward the California/Arizona border area, and was heading back to the Missouri area after a short trip. Alaniz testified that the Mazda was in the California area for about one day, but it’s somewhat unclear from the record exactly how long the car was there, especially considering Alaniz did not have access to Flock data from California. In any event, the time spent in California was short compared to the time it would take to drive from Missouri and back.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Taking a short trip is not a crime, nor is it reasonable evidence of participation in a crime.
When Alaniz followed the Mazda, he believed that he observed two main categories of traffic violations. First, he believed that the Mazda’s driver failed to signal a lane change at least 100 feet before making a lane change several times, in violation of 47 O.S. § 11-309. Second, he believed that the Mazda’s driver followed a vehicle in front more closely than is safe, in violation of 47 O.S. § 11-310. At least with respect to driving too close to another vehicle, the driver left only about 30 feet between the two vehicles. These traffic maneuvers were captured by Alaniz’s dash camera:
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
If Deputy Alaniz had simply been driving around and observed these traffic infractions that would be one thing. However, Deputy Alaniz observed these infractions during a suspicious investigation based on an illegal search. Not a good place to start.
The Traffic Stop
During the stop, Ms. Kyle was cooperative. She had rolled both front windows down, and when asked to put out her cigarette, she complied. She provided the documentation requested and pointed out that the vehicle was a rental. She even sat in the front of Deputy Alaniz’s patrol vehicle to look up the rental agreement on her phone.
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.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
I’m not an attorney, and I don’t play one on TV, but every attorney I’ve heard talk on the subject says there is no advantage to answering questions from law enforcement. I know most people think that if they’ve done nothing wrong, cooperating with law enforcement is a good idea. As we’ll see, it doesn’t always work out that way.
Alaniz told Kyle that he “work[s] criminal interdiction on the highways” and that “we look for uh people that are uh transporting large amounts of drugs, U.S. currency, guns, uh human trafficking, identity theft stuff.” He then told Kyle “your short trip to California I feel like uh—I don’t feel—I know from my training … and my experience that people who do very short trips to California and come right back are usually transporting large amounts of drugs.”
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Because there’s no reason to make a short trip other than transporting drugs? At this point, it’s important to know that the traffic stop is over. By returning her license, Deputy Alaniz has completed his stop, and by agreeing to answer questions, Ms. Kyle has consented to this interaction. However, that consent was about to end.
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.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Deputy Alaniz started with a questionable investigation, an illegal search, and now he adds an illegal detention. He has no reasonable articulable suspicion that Ms. Kyle was involved in any illegal activity, only his gut instinct that the short trip to California had to be for drug trafficking.
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.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
So, Ms. Kyle admitted to having a small amount of marijuana in the car, but that wasn’t what Deputy Alaniz was looking for.
After Alaniz’s backup officer arrived on the scene, he told him “I asked for consent to search her car, she … denied, so I’m gonna run my dog.” Alaniz also told another officer: “Man, she’s nervous as all get out. Super nervous. She went to California for two days. … Kinda making some stuff up as I’m asking her where she stayed at. … Has a shit ton of luggage back there for just two days to California. I asked her for consent. She’s like ‘no I don’t think so.’ I said OK, well now you’re being detained. … Then suddenly she’s got weed in the car.” Alaniz’s dog then sniffed the car, alerted, and the officers conducted a search of the vehicle, which resulted in Kyle’s arrest. While Alaniz searched Kyle’s vehicle, he told another officer that he “could see her carotid artery in my car. That thing was about to pop out of her neck,” meaning that Alaniz perceived Kyle as being nervous.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
You know who’s making stuff up? It wasn’t Ms. Kyle, it was Deputy Alaniz. All of his “probable cause” was a fiction he made up to justify his illegal activity. This is why Ms. Kyle asked for the unconstitutionally collected evidence to be suppressed.
Kyle challenges three main aspects of her interaction with Alaniz: (1) whether Alaniz was justified in stopping her vehicle; (2) whether Alaniz unlawfully extended the traffic stop; and (3) whether Alaniz’s use of the ALPR systems constituted an unlawful search. Kyle asks the Court to “suppress all evidence obtained as a result of these unconstitutional searches and seizures.” [ECF No. 47 at 23].
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
The Fourth Amendment
The court started by looking at the Fourth Amendment question.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV. This typically requires law enforcement officers to have probable cause before conducting a search or seizure.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
You’re probably familiar with the language of the Fourth Amendment, including the Search and Seizure Clause:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
U.S. Constitution, Amendment IV
That means before law enforcement can stop or search you, they have to have probable cause or a warrant.
But there is an exception to this requirement for brief investigatory stops, which are more commonly known as Terry stops. In Terry v. Ohio, 392 U.S. 1 (1968), the Court “created a limited exception to” the prior general rule that “any restraint on the person amounting to a seizure for the purposes of the Fourth Amendment was invalid unless justified by probable cause.”
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Did you notice that? A Terry Stop is a creation of the court, not the Constitution or laws of the United States. This is just one more infringement on our rights, but even this infringement has limitations.
The Court held in Terry that “certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.”
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Commonly referred to as reasonable articulable suspicion or RAS, law enformcent has to have more than just a “gut feeling” that a crime is afoot before they can search or seize. Or in this case, initiate a traffic stop.
“A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” …
Based on the Court’s review of the record, Alaniz had an objectively reasonable basis to stop the Mazda for following the car in front of it too closely.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Deputy Alaniz did observe two traffic violations. However, that was during an illegal investigation based on an illegal search. Once the traffic stop was completed, Deputy Alaniz had no further authority to detain Ms. Kyle.
“Once an officer returns the driver’s license and registration, the traffic stop has ended and questioning must cease; at that point, the driver must be free to leave.” … “Continued detention is lawful only if the encounter becomes consensual or if, during the initial lawful traffic stop, the officer develops a reasonable suspicion that the detained person is engaged in criminal activity.” … This means the relevant inquiry is whether Alaniz had reasonable suspicion of criminal activity before he returned Kyle’s license to her.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
At the time that Deputy Alaniz returned Ms. Kyle’s license to her, what reasonable suspicion of criminal activity did he have? That didn’t stop the government from trying to support Deputy Alaniz.
The government offers six reasons why Alaniz had reasonable suspicion that Kyle was engaging in criminal conduct beyond the observed traffic infractions.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Those six reasons were:
- Kyle’s Quick Turnaround Trip to California and Explanation for her Travels.
- Amount of Luggage.
- The Cigarette.
- The Rental Vehicle,
- Nervousness.
- The Marijuana Disclosure.
Except none of thees reasons are illegal. In fact they could only be considered “reasonable suspicion” to someone who has already decided Ms. Kyle was guilty.
I recently took a quick trip to Upstate New York, where I brought a large amount of “luggage” back with me in a rental vehicle. I don’t smoke, but being pulled over by law enforcement makes most people nervous. More on the marijuana disclosure later.
Warrantless Search
Was Deputy Alaniz’s search of the ALPR database a warrantless search?
Kyle also challenges the constitutionality of Alaniz’s use of the ALPR systems in his investigation. From Kyle’s perspective, she “has a reasonable expectation of privacy in the location data which tracked her movements over several weeks,” and the collection and use of that information violated her privacy interest. … More specifically, she argues that her reasonable expectation of privacy in her historical location data is recognized by society, that the ALPR search was an unreasonable governmental intrusion of protected privacy rights, and that compliance with internal policy or state law is not decisive under the Fourth Amendment.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
I am unconvinced by the privacy argument. First off, the Fourth Amendment does not protect a person’s privacy directly, it protects you from unreasonable searches and seizures. What you do in public can be observed and recorded. When someone records you, or keeps track of what they observe, that is their data, which they are free to use within certain legal restrictions. However, I’ve already shown that Deputy Alaniz’s search of the ALPR database was without reason, and therefore a violation of the Fourth Amendment.
Based on the alleged Fourth Amendment violation for the ALPR search, Kyle further argues that the evidence derived from her detention and search of her vehicle, as well as her statements about possessing marijuana, should be suppressed as fruit of the poisonous tree.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Needless to say, the government has a different point of view.
The government primarily responds to Kyle’s argument by noting that the data obtained by ALPR technology is in plain view on public roadways; meaning, Kyle did not have a reasonable expectation of privacy in this information.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
There is a fundamental difference between collecting data and searching for it. You have no expectation of privacy on public roads, but you do have an expectation that any searching of data by government actors must be reasonable. The court noted that other courts have not found that the use of ALPRs constitutes a search under the Fourth Amendment. However, the Supreme Court in the Chatrie case did make a statement when it comes to cell phone location data.
The majority in Chatrie concluded that “the police conducted a search when they gained access to Location History data,” and that “[a]n individual has a reasonable expectation of privacy in records about his cell phone’s location.”
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
The court also came up with, what I think, is a very helpful analogy.
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. This is the same expectation of privacy that the Supreme Court has continued to recognize in cases like Carpenter and Chatrie. Cell phones also move in public places where people can see you in plain view. But it becomes constitutionally problematic when law enforcement can indiscriminately and passively catalog your whereabouts over an extended period of time and then use that information for any purpose whenever convenient.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
So the collection of data does not violate the Fourth Amendment, but the indiscriminate searching of law enforcement does. Meaning the cameras are not the problem, overeager law enforcement is.
Conclusion
What can we conclude from this case?
No doubt, ALPR technology comes with remarkable benefits that the Court cannot ignore. But the Fourth Amendment requires courts to draw a line when the cost is too great.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Like any technology or tool, it can provide tremendous benefits when used correctly and horrible harm when abused.
Alaniz’s search in just the ALPR system provided him with more than 50 individual records of Kyle’s whereabouts across the country for an entire month. The Court finds that because the ALPR systems Alaniz used to search Kyle’s historical location information intruded on her reasonable expectation of privacy in the whole of her physical movements, it was a search under the Fourth Amendment.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
The court agrees that what Deputy Alaniz did was a search under the Fourth Amendment. The question is, was it a reasonable search?
Based on the information in the record, the only reason Alaniz conducted that search was because he saw her license plate was from California. That search was not supported by probable cause, and it was done without a warrant in violation of Kyle’s Fourth Amendment rights.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
No, the search of the ALPR database was not reasonable. The only reason Deputy Alaniz searched the database was because the car had a California license plate. It is not a crime to drive a vehicle with an out of state license plate, neither is it a reasonable basis for suspicion of a crime.
That search also has a nexus to the remainder of the traffic stop because Alaniz began following Kyle’s car while he conducted the ALPR search, which led to the rest of the evidence obtained during the traffic stop. Because the government does not identify any adequate exception to the exclusionary rule, all evidence obtained after Alaniz initiated the ALPR search must be suppressed as fruit of the poisonous tree.
USA v. Melisa Susan Kyle – District Court for the Northern District of Oklahoma
Since all of the evidence against Ms. Kyle, from the traffic stop to her statement in the deputy’s vehicle, are based on this illegal search, it is all considered fruit of the poisonous tree. Without the illegal search, there would have been no traffic stop to begin with. That is why Ms. Kyle’s requisition to suppress the evidence was granted.
While a lot of people are complaining about Flock and other Automatic License Plate Readers, the problem isn’t with the technology. It’s with the policies and procedures used to access that data. And it really isn’t just ALPRs. Security cameras, facial recognition software, and even your fancy doorbells all collect and provide data that law enforcement may find valuable to do their jobs. That is why we have a Fourth Amendment. To make sure that government convenience does not supersede our right to secure both our data, and data about us.
