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Judge Sara Hill rules a deputy's warrantless search of Flock's cross-state network unconstitutional
Federal judge Sara E. Hill ruled Oct. 1 that a Tulsa County deputy's warrantless search of Flock's cross-state camera network was unconstitutional. The search she faulted was a plate lookup run without probable cause, the query a plate-reader network is built around, so agencies now have to decide how they control it.
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What happened
- Flock's database gave the deputy Melisa Kyle's recent location data, a short trip across the state and back, and that history raised the deputy's suspicion of drug activity.
- Hill described the police activity as indiscriminate mass surveillance, in what Mashable calls one of the first rulings to treat Flock as a sophisticated tracking system.
- Earlier court rulings had held that automatic license plate readers do not violate the Fourth Amendment.
- Senators Bernie Sanders, Alexandria Ocasio-Cortez and Jeff Merkley introduced the Ban Flock Act on Oct. 2, the day after the ruling.
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Why it matters
- exposure Stops that begin with a plate lookup run before the officer had cause are now open to the argument that won here, and the officer who ran the query is the one who has to defend it.
- contradiction A single federal decision now runs against earlier rulings that found plate readers lawful, so agencies face conflicting signals until an appeals court settles which line holds.
- precedent Hill's description of the network as a tracking system gives lawyers challenging other Flock-based stops a federal opinion to cite.
The deputy first said Melisa Kyle was pulled over in Tulsa for suspicious driving, and that a search after the stop turned up drugs [2]. She was arrested for possession of methamphetamine with intent to distribute [2]. The deputy had already run her plate through the county's Flock database and used the result as sufficient cause to stop and detain her [3].
Judge Sara E. Hill, a former attorney general of the Cherokee Nation, found that the deputy opened the Flock data without probable cause. She called it an "unconstitutional warrantless search" [11][5]. "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," Hill wrote [7].
The county buys the system, and an officer with a search box runs the queries [3]. According to Mashable, officers in departments nationwide have been found guilty of stalking and harassing women with the system and of surveilling private citizens [12]. Others, Mashable reports, have used the network to monitor activists, religious groups and police critics [12]. Next to that record, Kyle's stop is an ordinary use of the product. Someone ran a plate check before any cause existed, and suspicious driving was the reason given afterward [2][3][5].
Flock expects the decision to fall. A company spokesperson said the ruling would be "appealed and ultimately overturned," citing existing precedent [9]. Mashable's report does not say how far Hill's decision reaches beyond this case.
For an agency deciding what to do on Monday, the ruling sorts plate searches along two lines. The first is order: either the officer had a specific reason before the query, or the query supplied the reason. The second is scope: a single nearby camera hit, or a movement history pulled from a network that crosses state lines. Hill ruled on one cell of that grid, where the query came first and the answer was a cross-state history [1][3][5]. This case did not test the other three.
I would put controls on that one cell now. Require a case number or a written reason before an officer can pull network-wide history, and log who ran each query. The cost shows up in this very case. Under that rule the Kyle search would not have run, because the trip history was what created the suspicion in the first place [4]. An agency that wants the search for that purpose is betting on the appeal Flock says it will win [9].
What to watch
- Whether the Kyle case is appealed, and whether the appeals court follows Hill or the earlier rulings that found plate readers consistent with the Fourth Amendment.
- Whether other federal judges adopt Hill's 'indiscriminate mass surveillance' framing when ruling on stops that started with a Flock lookup.
- Whether Flock or its agency customers add a required case reason before an officer can pull cross-state history.