I was watching my favorite daily car news show, Fast Lane Daily, today and ran across mention of police using license plate scanners on traffic. They do this to be alerted to potential crimes and violations such as cars wanted in connection with an amber alert. There Derek D., the host, states that the practice violates the Fourth Amendment to the US Constitution. I think this claim needs to be fleshed out a little bit so that people don’t have an incorrect understanding as to why this Fourth Amendment claim is being made.
The police have devices that can be mounted to their patrol cars that read the license plate number and then run it through the police database and compare it against a “hot list.” If the car has an amber alert attached to it, is stolen or even has an expired registration then the police inside the car will be alerted and they can go and pull the car over. The information from these readers is then stored by police.
This recent controversy stems from reports surrounding a hearing scheduled on March 21st in a matter involving the ACLU, the LAPD and the Los Angeles County Sheriff’s Department (LASD). On May 6, 2013, a Writ of Mandate was filed by the ACLU against the LAPD and the LASD. The facts indicate that the ACLU and the Electronic Frontier Foundation (EFF) requested records relating to the use of police license plate scanners that were said to be public records. The response argued that the records were investigatory and release would violate the privacy of citizens and therefore they were exempt from disclosure.
With regard to the constitutionality of the usage of the scanners, there are two separate issues. The first is whether the police can engage in this practice of scanning and storing the information and the second is whether the records should be released and made public. I will only discuss the former.
There are two questions concerning the ability for police to use these scanners. The first question is whether or not they can scan license plates in the first place. The answer is that they can. A case has already gone to the Supreme Court in New York where the Court upheld the use of the data by the officers to pull over a car with an expired registration. The court allowed the reliance on the information by the police and indicated that a hot list that was 36 hours old was “hardly stale”. When thought about in context, this is just like an officer seeing a license plate and running it against his database but now he has the ability to do it for a lot of cars very quickly. This then is not where the Fourth Amendment claim can be made.
The second question is whether they can store the information. Why the storage of the information is important is that the scanner records the date, time and location of the spotting of the license plate so it could potentially be used to track the vehicle. The Third Circuit in United States v. Katzin ruled that the use of slap-on GPS trackers was unconstitutional if done without a warrant. So the question here is whether the storage of information and thus the potential tracking of people also violates the Fourth Amendment. The potential difference is the expectation of privacy. As United States v. Marquez states, “to establish a Fourth Amendment violation, a defendant must show that he had a reasonable expectation of privacy in the area searched.” The US Supreme Court in United States v. Jones indicated that the physical invasion of personal effects to obtain information constituted a search.
Here there is no physical invasion and the question becomes whether a driver has a reasonable expectation of privacy to the observation of his license plate at a specific time in a specific location. The answer would seem to be that there is not an expectation of privacy as there is not 1) an invasion of the vehicle to place a device, 2) the observation takes place on a public road and 3) the information only covers the car being in one location at one time and does not monitor the vehicle as it travels around. This has not yet been fully decided, however, so we will have to wait for a court to make a definitive ruling.
*One thing to note is that individual states may enact laws further restricting this and thus expanding the protections under the Fourth Amendment so while it may be ok under the Fourth Amendment it may not be under state law.