Drones, LPRs, and Pole Cameras

Instructor introduction.

1. Explain the course objective.

2. Encourage attendees to ask questions and share feedback with  other attendees.

3. Explain that certificates will be emailed after the class.

4. Go over the three disclaimers:

• a) Laws and agency standard operating procedures may be  more restrictive. Blue to Gold is teaching the federal  standard unless otherwise stated. Therefore, students must  know their state and local requirements in addition to the  federal standard.
• b) If students have any doubts about their actions, ask a  supervisor or legal advisor.
• c) The course is not legal advice, but legal education.  Therefore, nothing we teach should be interpreted as legal  advice. Check with your agency’s legal advisor for legal

Module Two: Drones

1. Legal Rule: Generally, activity a person knowingly exposes to  the public is not subject to Fourth Amendment protection and  is not constitutionally protected from observation

2. Case Sample: Defendant sought review of a judgment of the  United States Court of Appeals for the Ninth Circuit which, in  affirming defendant’s conviction for transmitting wagering  information by telephone in violation of 18 U.S.C.S. § 1084,  rejected the contention that the recordings had been obtained  in violation of the Fourth Amendment because there was no  physical entrance into the area occupied by defendant.  Synopsis: Defendant was convicted of transmitting wagering  information by telephone in violation of a federal statute. At the  trial, the government was permitted, over defendant’s  objection, to introduce evidence of defendant’s end of  telephone conversations, which was overheard by FBI agents  who had attached an electronic listening and recording device  to the outside of the public telephone booth where he had  placed his calls. A court of appeals, in affirming his conviction,  rejected the contention that the recordings had been obtained  in violation of U.S. Const. amend. IV because there was no  physical entrance into the area occupied by defendant. The  Supreme Court reversed, finding that a person in a telephone  booth could rely upon the protection of U.S. Const. amend. IV.  One who occupied a telephone booth, shut the door behind  him, and paid the toll that permitted him to place a call was  entitled to assume that the words he uttered into the  mouthpiece would not be broadcast to the world. The Court  determined that the government agents ignored the procedure  of antecedent justification, which was a constitutional  precondition of the kind of electronic surveillance involved in  the case. Outcome: The court reversed defendant’s conviction.  Katz v. United States

3.

4. Pro Tip: This is a difficult test to apply in the field! Apply this  test instead…
The back yard of appellant’s home was enclosed by a waist high  picket fence and foliage growing at various locations along the  fence. Planting marijuana plants in a back yard enclosed only by  a picket fence and intermittent vegetation is not an action  reasonably calculated to keep the plants from observation since  it is certainly foreseeable that a reasonably curious neighbor,  while working in his yard, might look over the picket fence into  appellant’s yard and see the plants, whether or not he knew  what they were.

In the other case, by comparison, the court noted:
Patrol by police helicopter has been a part of the protection  afforded the citizens of the Los Angeles metropolitan area for  some time. The observations made from the air in this case must  be regarded as routine. An article as conspicuous and readily  identifiable as an automobile hood in a residential yard hardly  can be regarded as hidden from such a view. Ruling: The  observations were made … in a physically nonintrusive manner  … Any member of the public flying in this airspace who glanced  down could have seen everything that these officers observed.  The Defendant’s expectation that his garden was protected  from such observation is unreasonable and is not an expectation  that society is prepared to honor. Takeaway: Naked eye  observations from navigable airspace is not a search.

5. When considered from the perspective of the Katz test, the two  decisions are not inconsistent. In Sneed, the court reasoned that while appellant certainly had no reasonable expectation of  privacy from … airplanes and helicopters flying at legal and  reasonable heights, we have concluded that he did have a  reasonable expectation of privacy to be free from noisy police  observation by helicopter from the air at 20 to 25 feet and that  such an invasion was an unreasonable governmental intrusion  into the serenity and privacy of his back yard. Takeaway:  Highly intrusive naked eye observations are often considered  searches.

6. We conclude that the open areas of an industrial plant complex  with numerous plant structures spread over an area of 2,000  acres are not analogous to the “curtilage” of a dwelling for  purposes of aerial surveillance; such an industrial complex is  more comparable to an open field and as such it is open to the  view and observation of persons in aircraft lawfully in the public  airspace immediately above or sufficiently near the area for the  reach of cameras. Takeaway: Highly intrusive searches of  commercial property or open fields, even with hi-tech  equipment, are not searches. Takeaway: Do not use high-tech features such as thermal  imaging or zoom lenses to view inside homes or curtilage.

7. Pro Tip: Under the Fourth Amendment, it is likely that  deploying a drone in the same manner as the public, while  abiding by all laws, would be considered plain view.

8. While the topic of aerial drones may be in vogue, the law on  aerial surveillance has been well-established for decades. The  Supreme Court held that the aerial inspection did not amount  to a search protected by the Fourth Amendment, stressing the  fact that the observation was within navigable airspace and that  the observation was physically non-intrusive. US vs Cantu

9. Video: Covid 19 Drones

10. “The thought of government drones buzzing overhead,  monitoring the activity of law-abiding citizens, runs contrary to  the notion of what it means to live in a free society.” Sen. Chuck  Grassley

11. Imagine a helicopter capable of hovering just above an enclosed  courtyard or patio without generating any noise, wind, or dust  at all–and, for good measure, without posing any threat of  injury. Suppose the police employed this miraculous tool to  discover not only what crops people were growing in their  greenhouses, but also what books they were reading and who  their dinner guests were. Suppose, finally, that the FAA  regulations remained unchanged, so that the police were  undeniably ‘where they had a right to be.’ Would … the right of  the people to be secure in their persons, houses, papers, and  effects, against unreasonable searches and seizures’ … not be infringed by such surveillance? Supreme Court Justice Brennan,  1989

12. Drones versus Helicopters:

• Drones are quiet and stealthy
• Drones are cheap compared to helicopters
• Highly trained pilots are not required
• If unchecked, millions of drones could be used by  agencies around the country in just a few years.

13. State Law Examples:

• MI: Prohibits harassing hunters with drones
• ND: Limits drone surveillance
• Utah: Can use drones to find missing persons
• CA: Can’t use drones to film private activities without  permission
• IL: Basically, no use of drone for criminal purposes

14. Final Takeaway: If you’re doing exactly what the public can do,  abiding by all state and local laws, not being overly intrusive,  and not using image enhancements, it’s likely constitutional.

Module Three: License Plate Readers 

1. Legal Rule: Running plates with LPRs is not a search because  there is no privacy interest. The issue instead is whether the data  falls under the mosaic theory

2. Case Sample: Permeating police presence. As the Supreme  Court made clear in Carpenter, courts analyzing the  constitutional implications of new surveillance technologies also  should be guided by the founders’ intention “to place obstacles  in the way of a too permeating police surveillance.” Carpenter,  138 S. Ct. at 2214, quoting United States v. Di Re, 332 U.S. 581,  595, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Specifically, both this court  and the Supreme Court have recognized how advancing  technology undercuts traditional checks on an overly pervasive  police presence because it (1) is not limited by the same  practical constraints that heretofore effectively have limited  long-running surveillance, (2) proceeds surreptitiously, and (3)  gives police access to categories of information previously  unknowable. Commonwealth v. McCarthy, No. SJC-12750, 2020  WL 1889007, at *4 (Mass. Apr. 16, 2020)

3.  The mosaic theory calls for a cumulative understanding of data  collection by law enforcement and analyzes searches “as a  collective sequence of steps rather than individual steps.”

4. Factors to consider when using intrusive technology:

• How long will the surveillance be conducted? (e.g.  three days or three months?)
• Is the surveillance done in secret? Or does the  suspect notice? (e.g. police cameras in Times Sq.)
• Does the technology give police access to  information previously unknowable? (e.g. public  facial recognition)

5, Video: License Plate Readers”

6,

7. Factors to consider when using LPRs:

• How many LPRs are there?
• How long will the information be retained?
• Are LPRs placed near constitutionally “sensitive” areas,  like homes and churches?
• Are they only used for emergencies” (e.g. Amber alert)

8. As this court and the United States Supreme Court interpret  society’s reasonable expectations of privacy over time, the  courts’ overarching goal is to “assure [the] preservation of that  degree of privacy against government that existed when the  Fourth Amendment [and art. 14 were] adopted.” Massachusetts  Supreme Court

9. While acknowledging the usefulness of these tools for crime  detection, “both this court and the United States Supreme Court  have been careful to guard against the ‘power of technology to  shrink the realm of guaranteed privacy’ by emphasizing that  privacy rights ‘cannot be left at the mercy of advancing  technology but rather must be preserved and protected as new  technologies are adopted and applied by law enforcement.”
Massachusetts Supreme Court

10. Pro Tip: An LPR hit that the driver is wanted or has no driving  privilege usually provides RS to stop vehicle barring contrary  evidence.

11. Case Sample: LPR alerted that registered owner was wanted.  Synopsis: In a prosecution stemming from a traffic stop  initiated after a police officer received an alert from a license  plate reader system in his patrol car that a person linked to the  vehicle was wanted for failure to appear in court, the driver  failed to convince the court that the license plate reader system  failed to meet foundational requirements for admissibility. An  officer had been patrolling in a car equipped with an LPR system  when he received an alert indicating that the wanted person was  a male being sought for failure to appear in court. The officer  conducted a traffic stop. In his subsequent prosecution, the  defendant contended that trial court erred in denying his  motion to suppress because the LPR system arguably failed to  meet foundational requirements for admissibility, as have been  established for radar detectors. The court disagreed. It  explained that the patrol cars were equipped with license plate  reader systems, consisting of mounted cameras that read  license plates of passing vehicles to transmit the information to  a database of wanted persons. The database was updated daily  and included information about wanted persons and their  related vehicles. The information was provided by the Georgia  Bureau of Investigation and the Department of Motor Vehicles.  When the LPR recognized a license plate linked to a wanted  person, the system would make an audible alert, notifying the  officer of a “wanted person” and providing the officer with an  opportunity to view the information the system retrieved,  including the person’s name and date of birth, the reason the  person was sought, and a color photograph of the vehicle and  its license plate. The court acknowledged that for data collected  by a radar device to be admissible into evidence, the state had  to establish that (1) the device was marketed under a particular  name or was similar and approved by the Department of Public  Safety for the measurement of speed, (2) the law-enforcement agency had a particular license, (3) the device had been certified  for compliance by a special technician, and (4) the device had  passed tests for accuracy. Although the defendant suggested  that, in order to be admissible, the LPR system at issue was  required to meet similar requirements, the court disagreed,  reasoning that a radar detector is used to prove commission of  the offense at issue, whereas the use of the LPR merely provides  an officer with reasonable, articulable suspicion to justify an  investigatory stop. Accordingly, the court approved admission  of evidence derived from the LPR. Held: LPR provided  reasonable suspicion. Hernandez-Lopez v. State

12. Pro Tip: Visually confirm plate before making the stop.

13. Case Sample: Officer stopped stolen vehicle based on LPR hit.  The officer did not visually confirm the plate and made a felony  stop. Synopsis: An appellate court determined that summary  judgment could not be granted in favor of police officers where  a civil rights litigant had been subjected to a traffic stop on the  basis of an ALPR match, but where the officers failed to take  additional steps to confirm that the driver’s license plate actually  matched that of an arguably stolen vehicle. The driver, a 47-year-old African-American woman with no criminal record, had  been subjected to a vehicular stop after the police department’s  Automatic License Plate Reader mistakenly identified her Lexus  as a stolen vehicle. It was late and dark outside, which rendered  the ALPR photograph blurry and illegible. As a result, the officers  could not read the ALPR photograph, nor could they get a direct  visual of the plaintiff’s license plate. Without visually confirming  the license plate, the arresting officer made a “high-risk” stop  during which the plaintiff was held at gunpoint by multiple  officers, handcuffed, forced to her knees, and detained for 20  minutes. She was released only after officers eventually ran her  plate and discovered the ALPR mistake and that her vehicle was  not stolen. After she filed her civil rights suit, the defendants  moved for summary judgment, arguing, inter alia, that the initial  officer had reasonable suspicion to stop the plaintiff’s vehicle.  While the district court granted the defendants’ motion, the  appellate court reversed, finding that a rational jury could find  that the defendants violated the motorist’s Fourth Amendment  rights and that the initial officer was not entitled to qualified  immunity. In court, the arresting officer admitted that if he had  read the full plate, he would not have had the reasonable  suspicion to effect the stop. The court noted that was undisputed that the ALPR occasionally made false “hits” by  misreading license plate numbers and mismatching passing  license plate numbers with those listed as wanted in the  database. Because of the known flaws in the system, the city’s  officers were trained that an ALPR hit did not automatically  justify a vehicle stop, and the police department directed its  officers to verify the validity of the identified hit before  executing a stop. Patrol officers were instructed to take two  steps to verify a hit before acting on an ALPR read. First, they  were to visually confirm the license plate (to ensure that the  vehicle actually bore the license plate number identified by the  camera); second, they were to confirm with the system that the  identified plate number had actually been reported as stolen or  wanted. However, the parties disputed whose responsibility it  was to perform these two steps; the defendants stated it was  the responsibility of the officer in the camera car, while the  plaintiff argued that it was reasonable to expect the officer  actually making the stop to perform these steps. The court  determined that an unconfirmed hit on the ALPR did not, alone,  form the reasonable suspicion necessary to support an  investigatory detention. As a result, it could not be established  as a matter of law whether or not reasonable suspicion existed  to justify the investigatory detention, and the defendants’  motion for summary judgment on this ground was improperly  granted. Held: Civil rights lawsuit can move forward against  officer. Green v City of Francisco

14. Final Takeaways: If LPRs can replicate GPS data, then they are  likely searches under the 4th Amendment
Unused LPR data should be purged after some time, probably  annually.
LPR data about sex offenders, parolees, and suspects likely do  not need purged.

Module Four: Pole Cameras 

1) Legal Rule: Activity knowingly exposed to the public is usually  not protected. Instead, the issue is whether it render privacy  futile or the mosaic theory.

2) Activity a person knowingly exposes to the public is not a  subject of Fourth Amendment protection, and thus, is not  constitutionally protected from observation.” Id. at 1281 (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Pointing to two facts—(1) the pole cameras could not see inside the houses and (2) the pole cameras could only see what a passerby could observe—we found the subject of the surveillance “had no reasonable expectation of privacy that was intruded upon by the video cameras.” Id. The surveillance therefore did not violate the Fourth Amendment, and the police officers did not need to obtain a warrant to install or use the pole camera.

3) According to the US Supreme Court: Facts to consider when using intrusive technology:

• How long will the surveillance be conducted?
• Is the surveillance done in secret?
• Does the technology give police access to information
• previously unknowable?

4) Video: “Pole Cameras”

5) Pro Tip: However, this test is not necessarily compatible with pervasive, continuous and automated police surveillance

6) Case Sample: United States v. Nia Moore-Bush. USDC Mass. Decided June 4, 2019.
Question: Was pole camera’s 8-month recording of suspect’s  house a search under the Fourth Amendment?

7) The Supreme Court recognized that long-term tracking of a  person’s movements “provides an intimate window into a  person’s life, revealing not only his particular movements, but  through them his ‘familial, political, professional, religious, and  sexual associations.’

8) Nor does the Government have any business tracking a  homeowners’ hobbies or regular trips for appointments.  Perhaps people would hesitate to have supporters of opposition  political parties visit if they knew that the Government might be  monitoring their driveway. The continuous video taken by the  Pole Camera thus threatens to chill these religious, political, and  associational activities.
Mass D. Court

9) However, the First Circuit reversed the District Court because the  Supreme Court has not directly held that the Mosaic Theory  applies to pole cameras. First Circuit

10) And for another twist! The First Circuit will rehear this case again  en banc on March 23, 2021 First Circuit, 982 F.3d 50 (Mem)  (2020)

11) Case Sample: People v. Tajoya. Colorado Ct. of Appeals  Decided November 27, 2019

12) Question: Was pole camera’s 3-month recording of suspect’s  house a search under the Fourth Amendment?

13) We acknowledge that, by its own terms, the Court’s decision in  Carpenter “is a narrow one” and does not “call into question  conventional surveillance techniques and tools, such as security  cameras.” The reality is that society has come to accept a  significant level of video surveillance. Security cameras are  routinely installed in public parks, restaurants, stores,  government buildings, schools, banks, gas stations, elevators,  and all manner of public spaces. Additionally, security cameras  are increasingly being installed on public streets, highways, and  utility poles. CO Court of Appeals

14) A pole camera, however, is not a security camera by any stretch  of the imagination. … Law enforcement officers did not install  the pole camera here to ‘guard against … crime,’ but to  investigate suspects. Indeed, the prototypical security camera  exists to monitor a heavily trafficked area or commercial  establishment. Security camera operators often install their  cameras in plain view or with warning signs to deter  wrongdoers. The Government hid the pole camera out of sight  of its targets and does not suggest that it did so to prevent  criminal activity. CO Court of Appeals

15) Several federal court decisions upholding the warrantless use of  pole cameras have distinguished [Carpenter] on the ground that  GPS or CSLI tracking of a person’s location is more invasive than  video surveillance of a person’s home. We wholeheartedly  disagree. Visual video surveillance spying on what a person is  doing in the curtilage of his home … for months at a time is at  least as intrusive as tracking a person’s location — a dot on a  map — if not more so. CO Court of Appeals

16) Takeaway: I believe targeted long-term recording of a person’s  house or curtilage is a search under the Fourth Amendment. However, your courts may have binding case law finding the  opposite.

17) Case Sample: Defendant was convicted on conditional guilty  plea in the United States District Court for the District of New  Mexico of being a felon in possession of a firearm and  ammunition. The District Court denied defendant’s motion to  suppress. Defendant appealed. Holding: The Court of Appeals, Timothy M. Tymkovich, Chief  Judge, held that defendant did not have reasonable expectation of privacy in outdoor common area between defendant’s   residence and his brother’s residence next door. United States Cantu

The camera did not record sound, and it did not allow the  agents to see inside either property. It provided a continuous  live feed to a television screen at the Task Force office. Agents  at the Task Force office could adjust the camera, zoom it in and  out, and take still photographs. Here, agents saw a man walk from a suspected drug trafficker’s  residence to a neighboring house carrying a large assault rifle.  “Fourth Amendment protection of the home has never been  extended to require law enforcement officers to shield their  eyes.”

18) Takeaway: A “live feed” camera viewing an area visible to the  public is usually not a search.

19) Case Sample: United States v. Rafiq Brooks |
USDC Arizona Decided Nov 28, 2012

20) Question: Was pole camera’s 24 day targeting of suspect’s  house a search under the Fourth Amendment?

21) Held: The evidence points to the fact that a person would not  be required to be a complex resident to see the “comings and  goings” at the Apartment, and any expectation of privacy by  Defendant in the complex parking lot surveillance was  unreasonable. Therefore, law enforcement’s use of the pole  camera did not violate the Fourth Amendment and, thus, there  was no need for law enforcement to seek a warrant before using  the camera.

22) Takeaway: A camera recording an area open to the public is  rarely a search.

Module Five: Major Takeaways