Search and Seizure | Automated License Plate Readers

Search and Seizure | Automated License Plate Readers in Minnesota

Perhaps because it is always evolving, one of the most interesting areas of search and seizure law exists at the intersection of privacy and technology, or more specifically, at the nexus where the expanding technological tools of the police run up against the privacy protections afforded by the Fourth Amendment’s rules on search and seizure.  For many years, the police have utilized automated license plate readers (referred to as ALPR’s in this post) to run license plate information through instant databases in order to ferret out crime.  We first learned of this technique nearly ten years ago in an article in the Star Tribune.  At that time, there was little guidance on the use of ALPR data, whether and where it could be maintained, and for how long, and who could access it and when.

Little known to the public, the U.S. Justice Department steadily built a national database to track in real time the movement of millions of vehicles throughout the country.  The database – called DEASIL – is maintained and operated by the Drug Enforcement Administration (DEA), and has the ability to track millions of vehicles daily.  The DEA permits law enforcement throughout the United States to access its database from their squad computer, and view where a particular vehicle has been in the past.

The sheer breadth of the data and the government’s ability to track the movement of people raises obvious privacy concerns.  A network of license plate readers creates a massive database of travel history.  Due to concerns over privacy rights, Minnesota passed laws in 2015 that govern the ability of Minnesota law enforcement officers to access and use ALPR data.  The statute – Section 13.824 – governs everything from how the data is collected, used, stored, shared, and how the data must be destroyed.  There are also sections of the statute that relate to logging and auditing, which ensure that local law enforcement agencies do not run afoul of the statute’s dictates.

As relevant here, the statute begins by defining just what is an “automated license plate reader.”  The statute defines an ALPR in the following way:

As used in this section, “automated license plate reader” means an electronic device mounted on a law enforcement vehicle or positioned in a stationary location that is capable of recording data on, or taking a photograph of, a vehicle or its license plate and comparing the collected data and photographs to existing law enforcement databases for investigative purposes. Automated license plate reader includes a device that is owned or operated by a person who is not a government entity to the extent that data collected by the reader are shared with a law enforcement agency.

As can be seen, the definition of an ALPR is not limited to cameras mounted on a law enforcement vehicle, but includes any device owned or operated by a private person or entity if the data collected by the reader is shared with a law enforcement agency.  This means that the reach of the statute goes beyond law enforcement, and governs ALPR data captured by, for example, a private business, if the data is shared with law enforcement.

A separate portion of the statute limits the use of ALPR data within the context of criminal investigations.  According to Section 13.824, subdivision 2(d):

[a]utomated license plate readers must not be used to monitor or track an individual who is the subject of an active criminal investigation unless authorized by a warrant, issued upon probable cause, or exigent circumstances justify the use without obtaining a warrant.

As can be seen, in the case of a criminal investigation, law enforcement are not free to monitor or track an individual through ALPR data unless they have a warrant, or some other emergency basis exists to use the data.  This statute is relatively new, and the Minnesota courts have not had much occasion to analyze the statute within the framework of Minnesota law on search and seizure.  However, a recent nonprecedential case from the Minnesota Court of Appeals is worthy of discussion.

Last month, the Minnesota Court of Appeals decided State v. Lelyukh.  In that case, the police used ALPR data obtained from a private casino to locate a suspected drunk driver, who was later arrested and charged with DWI.  The pertinent facts from the case were as follows:

A citizen contacted the police to report a concern about a particular car observed in a park. The citizen alleged that the car had sped recklessly into the parking lot and stopped; that two men were in the car; and that “several beer cans fell out of the car.” When a police officer arrived at the park, the citizen provided the officer with a photo of the car. The car’s license plate was visible in the photo. A records search showed that the car was registered to Lelyukh, who resided in Prior Lake.

Following additional investigation, the officer arrested Lelyukh for driving while impaired. Lelyukh was subsequently charged with DWI.  Lelyukh moved to suppress evidence, arguing that the officer’s warrantless use of the ALPR data to track his location violated the statute discussed above.  The district court agreed, and stated that the prosecution “failed to meet its burden [of] showing sufficient exigency to justify the warrantless use of the license plate reader.”  The evidence was suppressed and the charges were dismissed.

On appeal, the prosecution challenged the district court’s order, arguing that the officer’s access and use of the ALPR data was based on the exigent circumstances of locating a suspected drunk driver, and that the absence of a warrant was justified under the statute.  The court of appeals rejected this argument, writing that the facts available to the district court did not rise to the level of establishing exigent circumstances, rendering the officer’s bypassing of the warrant requirement unacceptable.

Unfortunately, the Minnesota Court of Appeals’ opinion in Lelyukh can be read only so far.  For one thing, it is a nonprecedential opinion, meaning that it lacks precedential authority, and can be relied upon by lawyers and lower courts only for its persuasive value.  Additionally, the district court’s decision was based on factual stipulations by the parties, meaning that there was not a deep, substantive record made around the facts and circumstances of ALPR data and its use by law enforcement.  It is likely that the Minnesota appellate courts will still need to weigh in on some of the questions raised in Lelyukh in order to fully define the contours of search and seizure law arising from the statute.