‘Mosaic theory’ rejected: Flock camera evidence does not violate Fourth Amendment

The Eastern District of Virginia has refused to suppress evidence from a Flock camera license plate reader system that led to a man’s indictment for armed robbery because he had neither a subjective nor objective expectation of privacy under the facts.

The defendant claimed the U.S. Supreme Court established a new balancing test that considers the totality of circumstances to determine whether new surveillance technology violates the Fourth Amendment.

Senior U.S. District Judge Robert E. Payne rejected the so-called “Mosaic Theory” test and said the Flock cameras “merely augment the same inherent sensory faculties of law enforcement that have existed since the Founding.”

“The three individual snapshots of [the defendant’s] brief location at specific times hardly rise to the level of persistent, unceasing public surveillance that the courts found troublesome,” the judge said.

Payne found no Fourth Amendment violation to warrant suppressing the evidence in United States v. Martin (VLW 024-3-559).

Flock query

Richmond police queried the Flock database for suspect vehicles using evidence gathered from a string of armed robberies. Flock returned 2,500 results; police manually reviewed them and found two pictures showing a vehicle with unique matching stickers.

When Flock located that particular vehicle at an apartment complex near the vicinity of the robberies, police obtained a warrant to install a GPS device. After another robbery, police found the vehicle had left that location and parked at the apartment.

Police surveilled the vehicle as Kumiko Martin Jr. — who matched the robber’s description — left the apartment. When Martin left in the vehicle, police conducted a traffic stop arrest.

At trial, Martin sought dismissal of all charges and moved to suppress all evidence that led to his arrest, contending the government conducted an unconstitutional search by accessing Flock data without a warrant in violation of the Fourth Amendment.

Proposed test

Martin cited Carpenter v. United States and Leaders of a Beautiful Struggle v. Baltimore Police Department to argue the U.S. Supreme Court established a new reasonable expectation of privacy balancing test that evolved from its holding in Katz v. United States.

Under Martin’s proposed test, courts must consider the totality of the new surveillance technology’s “ability to surpass ordinary expectations of law enforcement’s capacity and … to provide enough information to deduce details from the whole of a person’s movements.”

Martin asked the court to consider various factors important in Carpenter and Beautiful Struggle — such as efficiency, ease, expense and duration of the surveillance — to determine if and when the surveillance violates the Fourth Amendment.

But Payne said that “Carpenter and Beautiful Struggle cannot reasonably be read as casting off decades of precedent in the Fourth Amendment arena for a newfound balancing test as Martin argues, and the Court declines the invitation to do so here.”

Subjective expectation

“Individuals show a subjective expectation of privacy when they can ‘demonstrate that [they] personally [have] an expectation of privacy’ in that which is searched,” Payne wrote, adding that “usually entails taking steps to conceal or keep private activities from the public’s peering eyes.”

Here, Martin presented no evidence of his subjective expectation of privacy. During oral argument, Martin pointed to a detective’s testimony that he used GPS tracking — authorized by a warrant — to locate Martin’s vehicle and later surveilled Martin briefly before his arrest.

“The Court cannot understand how that testimony is probative of Martin’s subjective expectation of privacy in the exterior of his vehicle traveling on public roads,” the judge said.

Of the two possibilities on which Martin might have claimed a subjective expectation of privacy, Payne found neither to be persuasive.

First, the record didn’t demonstrate a warrantless intrusion into Martin’s home or curtilage.

“The police did wait outside the Lamplighter Court apartments to see who would enter the GPS-tracked vehicle, but such wait-and-see surveillance does not implicate expectations of privacy in the home itself,” Payne pointed out.

And well-established precedent foreclosed the possibility that Martin could claim a subjective expectation of privacy while driving his vehicle.

“There is simply no expectation of privacy in the exterior of one’s vehicle or while driving it on public thoroughfares,” the judge noted.

Objective expectation

Payne next analyzed Martin’s objective expectation of privacy based on “the significant body of scholarly work and judicial precedent” suggesting that the Katz analysis should consider both facets.

Under Katz, an objective expectation of privacy requires a demonstration that the expectation is one that “society is prepared to recognize as ‘reasonable.’”

“Courts must decide what exactly is society’s modern understanding of the interests it views deserve ‘protection from government invasion,’” Payne wrote. “[T]his requires considering whether surveillance practices constitute ‘more extensive intrusions that significantly jeopardize [individuals’] sense of security’ than necessary,”

Martin alleged that society hasn’t accepted constant government monitoring and tracking of individuals’ movements, again relying on Carpenter and Beautiful Struggle.

Payne said the 4th U.S. Circuit Court of Appeals recently addressed a similar set of facts and specifically rejected Martin’s proposed balancing test — known as the “Mosaic Theory” — in United States v. Chatrie.

“Carpenter, Beautiful Struggle, and Chatrie all instruct that the traditional test under Katz is to be used to assess whether Martin has established that he had a reasonable expectation of privacy in his movements,” Payne wrote.

He said this record was “meaningfully different” from the facts in Carpenter and Beautiful Struggle, which involved “similar all-encompassing surveillance programs that allowed law enforcement to track and monitor” residents’ movements.

As a society, we have come to expect the public surveillance of our vehicle as we travel on public roads. We understand that, at any given time in public, a camera may take a picture of our vehicle.

— Senior U.S. District Judge Robert E. Payne

The Chatrie court held that access to short-term public movements was more akin to Knotts v. United States, where the Supreme Court found no reasonable expectation of privacy, than to the monitoring in Carpenter or Beautiful Struggle.

Payne found no such “dragnet type law enforcement practice” proscribed by Carpenter or Beautiful Struggle presented by the facts here.

“The Flock system is not meant to ‘track’ or monitor’ the entirety of an individual’s movements during a particular car trip, much less through the activities of their daily life,” he wrote. “The Flock cameras are ‘strategically’ placed to capture images of locations, not individuals, that are known as historically high-traffic or high-crime areas.” (emphasis added)

After rejecting Martin’s invitation to consider “the proverbial ‘big picture’ dangers” inherent in Flock, Payne judge said the installation and use of surveillance cameras was “not particularly new.”

“As a society, we have come to expect the public surveillance of our vehicle as we travel on public roads,” he wrote. “We understand that, at any given time in public, a camera may take a picture of our vehicle.”

Because Flock cameras merely augment existing law enforcement sensory faculties, Payne held that the government didn’t violate Martin’s reasonable expectation of privacy and refused to suppress the evidence.

Checks and balances

Flock Safety’s Director of Policy, Andrea Korb, thinks Payne’s thorough analysis will be persuasive in pending Flock-related litigation, such as the recently filed civil-rights action against the city and police department of Norfolk.

“The judge took so much time and thought with his opinion, I think it would be hard to reach a different conclusion,” Korb told Virginia Lawyers Weekly.

Norfolk Commonwealth’s Attorney Ramin Fatehi echoed Korb’s sentiment.

“Judge Payne’s decision reflects settled Fourth Amendment law and is a victory for public safety, civil rights, and common sense,” he said. “This technology solves crimes and reduces the unnecessary police-citizen encounters — like stop and frisk — that make us less safe.”

Recognizing public wariness of surveillance, Holly Beilin, Flock’s director of communications, pointed out that Flock data has also been used to exonerate innocent people.

“The camera is better than an eyewitness, who can sometimes be biased or mistaken,” she said.

While Virginia agencies have discretion to keep recorded data longer than Flock’s default 30-day deletion setting, Korb said Flock supports legislation establishing checks and balances both to address public concerns and to protect continued use of the system.

The U.S. Attorney’s Office declined to comment. Martin’s attorneys didn’t respond to a request for comment.