Editor’s note: This is the second story in a series examining law enforcement’s expanded use of surveillance technology in Virginia. A Norfolk Circuit Court has granted a defendant’s motion to suppress evidence obtained by the city’s Flock license plate reader cameras without a search warrant, ruling the Fourth Amendment protects the right to privacy. “Installing a global positioning system (GPS) device on a vehicle to track a citizen’s whereabouts is a search and requires a warrant,” wrote Judge Jamilah LeCruise in a five-page ruling. “The Court finds that due to the breadth of FLOCK cameras covering the entire City of Norfolk and the storage component is also akin to a GPS device and requires a warrant.” Flock license plate reader cameras are proliferating across the state, with 172 of the devices installed last year in Norfolk. Data obtained from the cameras is frequently used as evidence, with police and prosecutors hailing the technology as a powerful public safety tool. While the judge’s ruling has not halted the use of the cameras, and an appeal is expected, legal experts say more challenges are likely coming down the road. While police argue the cameras are a force multiplier that helps them solve crime, civil liberties advocates have raised concerns about the broad and unregulated suveillance powers. Flock’s license plate reader cameras snap photos of vehicles and the immediate surroundings and store the images in the cloud for 30 days. Flock subscribers can automatically access images collected by the cameras they own. They can also form data-sharing partnerships with other subscribers and search each other’s databases. Numerous Hampton Roads police departments have the technology. “The citizens of Norfolk may be concerned to learn the extent to which the Norfolk Police Department is tracking and maintaining a database of their every movement for 30 days,” wrote LeCruise in the May 10 ruling. “The defendant argues ‘what we have is a dragnet over the entire city’ retained for a month and the Court agrees.” The defendant, Jayvon Antonio Bell, is facing one count of robbery using a firearm, one count of using a firearm in the commission of a felony, and one count of conspiracy to commit robbery by using a firearm. The charges stem from a robbery of a Chesapeake video game store. The judge’s ruling states that a witness provided investigators the license plate number of a gray Dodge minivan leaving the scene and Norfolk police located and stopped a minivan with that license plate number using Flock cameras. LeCruise’s ruling explained the Fourth Amendment safeguards the privacy of individuals against arbitrary invasions by governmental officials. “The Commonwealth argues that vehicles are different because the defendant did not have a privacy expectation in the public sphere,” it states. “However, a person does not surrender all Fourth Amendment protection by venturing into the public.” LeCruise cited two seminal Supreme Court cases in the ruling that have further defined citizens’ right to privacy. The United States v. Jones decision from 2012 established that the installation of a GPS tracking device on a vehicle, without a warrant, is an unlawful search under the Fourth Amendment. The later United States v. Carpenter decision, from 2018, found the government must obtain a warrant to access the historical location data from a person’s cellphone. The ruling, which cites previous reporting by The Virginian-Pilot on the city’s vast Flock camera system, further emphasized that there are many ways the technology could be abused. It cited concerns that the Norfolk Police Department allows all officers “unfettered access” to the data and does not require special training to use the system. Christopher Bettis, a defense attorney with the Office of the Public Defender, argued the case. He was unavailable this week for comment. Carter Kovalcheck, assistant public defender, emphasized the defense made a narrow argument. “We are not saying that the police cannot use the cameras; they just need to get a warrant if they want to access the database,” he said. Reactions to the ruling are mixed. Norfolk Commonwealth Attorney Ramin Fatehi said data obtained from the cameras is being used “all the time” as evidence. “I was frankly surprised that we didn’t see a challenge to it sooner,” he said. “That is the duty of defense lawyers to stress test these things. They have a duty to their clients to do so — so we knew it was coming.” Fatehi, however, said he respectfully disagreed with the ruling because he does not believe drivers have a reasonable expectation of privacy on public roads. Calling the cameras a “game changer,” he said the technology is helping police solve crimes and allocate their human capital more efficiently amid low staffing levels. He said the cameras are also reducing the need for widespread traffic stops or stop-and-frisk tactics. “The only people who get stopped with Flock are people who are in cars that are either stolen or are connected to some other crime,” he said. “This is far more effective than pretextual traffic stops and far more respectful of people’s rights.” Meanwhile, Alison Powers, director of policy and education for the Virginia Indigent Defense Commission, believes the court’s ruling “hit the nail on the head.” “It was reassuring to see that there are some judges who agree that this type of surveillance should require a warrant,” she said. “We are in a new age with the type of information that can be gathered and harnessed (from cameras).” Powers, however, doesn’t expect one case alone will have far-reaching impacts. “There’s no law that says they need a search warrant so until we have that, I think agencies will keep using it until there is enough of these (suppression motions) in one city or county that police would maybe consider stopping,” she said. The court’s ruling has not impacted the Norfolk Police Department’s use of the cameras, spokesperson Noel Lipieko confirmed. Both Fatehi and Powers expect to see more suppression motions down the road. “I am expecting challenges all over the commonwealth,” Fatehi said. “At the first opportunity that I or any other prosecutor has, we will appeal this up to the Virginia Court of Appeals. It is one of the only things that a prosecutor has the right to appeal — the suppression of evidence — and this is a vital crime-fighting tool and the appellate courts need to weigh in.” Katie King, [email protected]
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