Police blotter: When can cops run license-plate searches?

In this week's installment, appeals court says police need no justification to check license plates against databases.

"Police blotter" is a weekly News.com report on the intersection of technology and the law.

What: A Michigan man who was arrested after a police officer checked his license plate against a computer database tried to suppress that evidence on privacy grounds.

When: The 6th Circuit Court of Appeals ruled on Sept. 5.

Outcome: Defendant loses when appeals court rules that Americans have no Fourth Amendment protection against computer checks--even extensive ones--of their license-plate numbers.

What happened, according to court documents:

When Officer Mark Keeley of the Farmington Hills, Mich., police department was driving around a local shopping center, he noticed a white van idling in the lane closest to the stores. A man was inside and the lane was marked with "Fire Lane" and "No Parking" signs.

Keeley entered the vehicle's license-plate number into his patrol car's Law Enforcement Information Network (LEIN). According to the Michigan state government's Web site (PDF), LEIN databases include missing persons, Michigan state criminal history, prison and parole information, and a list of wanted people from the National Crime Information Center.

The LEIN search showed that the vehicle was registered to Curtis Ellison, a black man who had an outstanding felony warrant. Keeley called for backup, approached the van and arrested Ellison. During the arrest, Ellison was found to have two firearms. He was later indicted for being a felon in possession of a firearm in violation of federal law.

The trial judge ruled, however, that the van was not parked illegally and therefore Keeley did not have probable cause to run the LEIN check of the van's license plate. Therefore, the judge reasoned, the results of the LEIN check should be suppressed, including the discovery of Ellison's two firearms.

The U.S. Attorney's office appealed, saying that Americans have no reasonable expectation of privacy in their license-plate numbers, and therefore police need no probable cause to conduct computer checks.

In a 2-1 ruling, a three-judge panel from the 6th Circuit agreed. They said that "a motorist has no reasonable expectation of privacy in the information contained on his license plate under the Fourth Amendment...The very purpose of a license plate number, like that of a Vehicle Identification Number, is to provide identifying information to law enforcement officials and others." (The majority also rejected Ellison's argument that he was racially profiled because he was black.)

In a dissent, however, Judge Karen Nelson Moore said the U.S. Attorney raised the argument at a late stage and it should be rejected. Without more information collected by the trial judge, such as how much information on the general public is available on the LEIN system, Moore said, it's impossible to evaluate how intrusive the computer check is.

Moore said that the key point was not whether police could read someone's license plate but under what circumstances they could perform an extensive search of computer databases. She said the FBI's National Crime Information Center system contains more than 23 million records about people and vehicles--not all accurate or up-to-date--and "allowing the information contained therein to form the basis for a seizure without any other heightened suspicion, let alone probable cause, compounds the risk of privacy intrusions that errors in these databases impose."

Of particular relevance to Police Blotter are the implications of technological advances that let roadside cameras read every license plate that goes by and perform checks against computer databases--checks that would identify not just outstanding warrants but outstanding parking tickets. If the 6th Circuit's reasoning prevails, there would be no Fourth Amendment protection against it.

Similar systems are already in place. Indiana police are using cameras attached to a squad car that automatically scan license plates and check each one against a police database.

Excerpts from dissent by Judge Moore:

To assess properly the Fourth Amendment concerns raised by the use of the LEIN system, any court would need to know what type of information is available on the system; how this information is obtained; who can access the information; what safeguards, if any, are in place to prevent unauthorized access to the information; whether this information was available to police prior to the advent of the mobile data terminal; what the typical police practice is regarding the use of such searches; whether there are any procedures in place to guard against arbitrary searches; what options are available to regulate the use of the technology...

The majority rests its conclusion that the Fourth Amendment was not implicated by the LEIN search on the relatively uncontroversial fact that the operator of a vehicle has no privacy interest in the particular combination of letters and numerals that make up his license-plate number, but pays short shrift to the crucial issue of how the license-plate information is used...

This approach misses the crux of the issue before the court: even if there is no privacy interest in the license-plate number per se, can the police, without any measure of heightened suspicion or other constraint on their discretion, conduct a search using the license-plate number to access information about the vehicle and its operator that may not otherwise be public or accessible by the police without heightened suspicion?

It is worthwhile to spell out some of the Fourth Amendment concerns that the use of such technology raises, as no court of appeals has yet done so. The use of a computer database to acquire information about drivers through their license-plate numbers without any heightened suspicion is in tension with many of the Fourth Amendment concerns...

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed...

Although the license-plate search at issue here is arguably less invasive than a license-and-registration check, the constitutional concerns regarding abuse of discretion do not disappear simply because drivers are not stopped to conduct the license-plate search. First, a search can implicate the Fourth Amendment even when the individual does not know that she is being searched. Second, the balancing of Fourth Amendment interests also requires consideration of "psychological intrusion[s] visited upon" the individuals searched in assessing the extent of intrusion that a particular police practice imposes. The psychological invasion that results from knowing that one's personal information is subject to search by the police, for no reason, at any time one is driving a car is undoubtedly grave...

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