D.Nev.: There is no REP from a govt license plate reader’s collection of one’s movements

There is no reasonable expectation of privacy from a government license plate reader collecting information on the movements of one’s car. It can’t be compared to GPS tracking, and it’s not an electronic trespass. United States v. Yang, 2018 U.S. Dist. LEXIS 11967 (D. Nev. Jan. 25, 2018):

The Defendant argues in this case that law enforcement engaged in an unconstitutional search of Yang because it “used invasive vehicle location tracking technology to discover the GMC Yukon.” The Defendant further argues that the government “used advanced tracking technology to pinpoint the location of the Yukon down to the longitude and latitude coordinates at a specific date and time.” The Court rejects the Defendant’s argument, because the Court finds that the government did not use ‘invasive vehicle location tracking technology’ without a warrant to engage in a “search” of the Yang’s private property or the curtilage of his home or residence.

First, the Court notes and reiterates the following factual findings. The observations of license plate locations noted in the LEARN database do not rely upon invasive technology allowing law enforcement officers to essentially peer into the private property of individuals. The LEARN database relies upon random observations of license plates by digital cameras placed on tow trucks or other vehicles for repossession companies and on some law enforcement vehicles. The digital cameras capture images of license plates when the vehicle with a mounted camera drives past or near another vehicle with a license plate. The program is not designed to and does not track an individual’s movements or an individual automobile’s movements continuously or even regularly. The program does not permit a law enforcement client to direct that a vehicle with a LEARN digital camera follow and continuously record the location of a particular automobile. The LEARN database can but does not regularly provide contemporaneous location information.

Second, the Court finds that the technology associated with the digital camera for LEARN does not permit advanced or invasive surveillance of individuals or individual automobiles. The LEARN digital cameras do not have the capability of capturing images through solid barriers such as walls erected to protect the privacy of personal property or individual movements. The technology does not have the capability of taking photos of license plates from a significant distance — that is beyond two to three standard lanes of a street. The cameras cannot be readily or easily manipulated while the vehicle upon which the camera is mounted is moving.

Third, there is no evidence in this case to suggest that law enforcement officers used the LEARN database to regularly or continuously monitor the movements of Yang or the GMC Yukon or the Budget Truck. Inspector Steele submitted only one request for a detection report from the LEARN database. The report identified a possible matching license plate and a street block where that plate had last been identified. The report was requested from LEARN on April 13, 2016 and the only reported observation was from April 5, 2016. This to say that the LEARN report did not provide and does not collect any information about where the license plate had been over the previous week or two weeks. It simply provided a block location for an observation from approximately eight days earlier. The observation was also captured from a digital camera mounted on a commercial vehicle and not a law enforcement vehicle. The facts of this case do not demonstrate that law enforcement officers: a.) used the LEARN system to regularly monitor the movements of Yang or the GMC Yukon or Budget Truck, b.) used the LEARN system to view into the private curtilage of any residence or private property, c.) used the LEARN system to develop a history of the movements of Yang or the GMC Yukon or Budget Truck, or d.) used the LEARN system directly to track the movements of Yang or the GMC Yukon or Budget Truck on a particular day(s).

Considering all of these factors, the Court does not find in this case that Inspector Steele’s use of the vehicle detection report in LEARN to identify the possible location of the GMC Yukon constituted a search of Yang or the GMC Yukon requiring a warrant. The Defendant’s attempt to rely on Jones to assert that a warrantless search occurred in this case lacks legal support. That case is distinguishable from this one. The monitoring device in Jones — a GPS tracker — provided continuous contemporaneous information about the location of a vehicle, had been placed on the actual private vehicle without the owner’s consent, permitted (and was intended to permit) vehicle location and tracking in private walled off communities, and created a travel history of all of the movements of the targeted vehicle. None of these facts are in play here. There was no “common-law trespass” in this case, because the GMC Yukon’s license plate and the associated location was only captured when the vehicle traveled on public streets with other vehicles. No officer placed any device on the GMC Yukon or used technology targeting the Yukon which would permit law enforcement officers to peer into areas thought to be private by Yang or any other individuals. Yang does not have a reasonable expectation of privacy in the observation (and location of the observation) of the license plate of the vehicle he is driving on public streets with other vehicles. Class, 475 U.S. at 114.

Furthermore, the Court does not find that there was any form of ‘electronic trespass’ that might implicate a reasonable expectation of privacy. The location information in this case was not generated by Yang electronically or digitally surrendering private or confidential information to a third-party working in cooperation with law enforcement. The location information for the GMC Yukon was not identified by use of any invasive digital technology regarding its whereabouts or those of Yang. The location information was obtained through random observation(s) recorded on public streets.

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