The FBI querying the state automatic license plate reader database to connect a car to two bank robberies was not an unreasonable search. There is no reasonable expectation of privacy in the information. United States v. Brown, 2021 U.S. Dist. LEXIS 206153 (N.D.Ill. Oct. 26, 2021). How they solved the crime:
A man in a white hooded sweatshirt robbed a U.S. Bank branch in Berwyn, Illinois, in September 2019. [61] at 3-4. About two weeks later in October, a man in a white hooded sweatshirt robbed a U.S. Bank branch in Chicago. [61] at 4. A surveillance camera recorded a white four-door Volkswagen with a tinted sunroof in the alley behind the Chicago bank at the time of the October robbery. [61] at 5. Another camera recorded a similar white four-door Volkswagen with a sunroof parked about a block away from the bank, about 30 minutes before the robbery. [61] at 5-6. That video depicted the driver putting a white garment over his upper body. [61] at 6. It also showed a City of Chicago Department of Revenue booting van passing by the Volkswagen; that van had a license plate reader. [61] at 6; [65-1] at 6. FBI agents investigating the robbery asked the Department of Revenue for any video or pictures the van took of the Volkswagen. [65-1] at 6. The department responded with images of the car and close-ups of a license plate starting with BF. [65-1] at 2-4. But that license plate was not registered to a white Volkswagen; it was registered to a red Chevrolet and that plate had been reported stolen. [61] at 6.
The FBI asked the National Insurance Crime Bureau to look at the surveillance footage from the alley behind the bank and the Department of Revenue images, and NICB identified the Volkswagen as a 2009 or 2010 model Volkswagen CC, with a panoramic sunroof. [61] at 5; [66] at 6. The agents then asked the Illinois Secretary of State for records of white Volkswagen CCs registered in Chicago or nearby suburbs. [61] at 6, 8. That request generated a list of 46 license plates. [66] at 8. Using that list, the FBI went back to the well of automatic license plate reader databases. [66] at 8.
Automatic license plate readers use high-speed infrared cameras to photograph (at day and night) each license plate that passes by. Samuel D. Hodge, Jr., Big Brother Is Watching: Law Enforcement’s Use of Digital Technology in the Twenty-First Century, 89 U. Cin. L. Rev. 30, 38 (2020). The cameras can be placed anywhere, from police vehicles to stationary objects like poles, traffic lights, and overpasses. Id. In this case, the FBI queried the Vigilant Solutions system to look for cars that were consistent with the white Volkswagen and near the robberies under investigation. [61] at 6-7; [66] at 8. Vigilant Solutions is a commercial vendor that compiles and makes available data across multiple license plate reader systems (including from local police departments and private entities like repossession services). [66] at 6-7.
The request generated Vehicle Detection Reports for queried license plates, and agents associated one plate, starting with BG, with a white Volkswagen that looked like the car from the alley behind the Chicago U.S. Bank branch. [61] at 6-7; see also [61-1] at 19 (Vehicle Detection Report). The BG plate was registered to Anthony Brown. [61] at 8.
Agents then ran the BG plate through the City of Chicago’s proprietary program for parking and red-light/speeding tickets and learned about two tickets tied to the BG license plate and issued to Anthony Brown. [61-1] at 2. Agents queried the Chicago Police Department’s license plate reader system for any hits on the BG plate within the 3 days before October 11, 2019 (the Chicago robbery occurred on October 8), and learned of seven hits, all on October 11. [61-1] at 3. Vigilant Solutions then provided an analysis of hits on the BG plate between August 1 through October 10, 2019. [61-1] at 4-5. That report showed 15 sightings of the BG plate at 11 addresses between August 1 and October 10. [61-1] at 4-5. Of note to the investigators, license plate readers captured the BG plate twice on September 25, 2019, on I-290 between 9:49 and 9:55 a.m. [61-1] at 4-5, 10, 16. The robbery in Berwyn occurred on September 25 around 9:39 a.m. [61] at 3, 10. The license plate reader images of the BG plate show it on a white four-door Volkswagen with a panoramic sunroof. [61-1] at 3, 4, 20-31.
The Berwyn bank branch exterior surveillance video showed a white four-door car with a panoramic sunroof, a front tire with a black wheel, and a rear tire with a chrome wheel drive in front of the branch about 21 minutes before the robbery. [61] at 8. Chicago police surveillance camera footage from September 25 showed a white four-door Volkswagen with a tinted panoramic sunroof, a front tire with a black wheel, and a rear tire with a chrome wheel, driving near Central Avenue (near the I-290 onramp). [61] at 7-8.
In sum, queries of license plate reader systems gave investigators information about a white Volkswagen with a stolen license plate near the October robbery, and then tied a similar white Volkswagen with a plate registered to defendant Brown to the vicinity of the September robbery.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
