United States v. JacksonUnited States v. Jackson
This matter came on for hearing on April 16, 2025, on Defendant‘s motion to suppress evidence obtained from the warrantless use of the Flock Safety, Inc. (“Flock Safety“) system of license-plate-reading cameras and search database (“Flock” or “Flock System“). Defendant argues that the warrantless use of the Flock System violates the Fourth Amendment‘s prohibition against unreasonable searches. (Doc. 22.) At the hearing, the court granted Defendant‘s three motions to take judicial notice of 1) Google Maps of the Wichita, KS area, 2) Flock Safety‘s internet page, and 3) prior testimony of Captain Casey Slaughter of the Wichita Police Department. (Doc. 43, 44, 45; Def. Ex. H.) The court then heard testimony regarding the use and deployment of the Flock System in and around Wichita, Kansas. The court heard testimony from five witnesses. The court first heard testimony from Defendant Sidney Jackson. It then heard testimony from two officers who participated in the use of the Flock System on January 3, 2024: Jorge Fernandez and Jonathan Marr. Afterwards it heard from Mike Molina, who is an attorney for Flock Safety, and then from Captain Casey Slaughter. After hearing all the testimony, the court took the motion to suppress under advisement. For the reasons set forth herein, Defendant‘s motion to suppress is denied.
I. Facts
After hearing testimony and receiving exhibits into evidence, the court finds the following facts in accordance with
A) Flock System use and deployment
Flock Safety is a technology company based out of Atlanta, Georgia, that provides law enforcement with a system of automatic license plate reading (“ALPR“) cameras and an affiliated search database. Flock Safety‘s flagship product, “LPR” (formerly called “Falcon“) cameras, are black, oval shaped cameras which are powered by an attached battery and a solar panel. These cameras can be mounted to dedicated 12- to 14-foot-high Flock poles or attached to other preexisting utility poles. Like traditional ALPR‘s, Flock‘s cameras are stationary and capture high speed pictures of every rear-facing license plate that passes by the camera twenty-four hours a day, seven days a week, so long as the Flock camera is operational. Flock Safety also creates “deployment plans” for clients to help find optimal placement for Flock cameras.1 However, Flock cameras have an intentionally narrow field of view, with motion detection triggering up to 75 feet away and a field of view around 20 feet wide. Usually, these cameras can cover two to four lanes of traffic. Flock Safety also offers pan tilt zoom video cameras which record video in addition to pictures, and a temporary Falcon Flex camera which is powered by a battery and intended for use at large events or other temporary settings. In total, there are currently close to 100,000 Flock cameras that have been deployed around the country. Although Flock retains ownership of the hardware, all photos and data are owned by the local agency or Flock customer.
Flock cameras use infrared technology to capture license plate numbers, time and
After a Flock camera takes a photo of a passing vehicle, these photos are then uploaded via a wireless data network to Flock Safety‘s encrypted cloud servers with a latency upload period of a couple of seconds. Upon upload, Flock‘s proprietary software runs a “vehicle fingerprint” on any vehicle in the photo and uses a machine learning algorithm to look for the vehicle identifiers stated above. After this upload and processing, local law enforcement can access the photographs via an online dashboard and search the resulting photo database by the cataloged vehicle characteristics and by specific license plate numbers. Law enforcement officers can also narrow their search radius by geographic location or by an area search. It should be noted that Flock Safety cannot access this data; rather local users are the only ones who can access the data from their local Flock cameras. These Flock photos are only retained on the cloud for 30 days, and after
Besides the data that is native to an individual municipality or HOA, Flock allows entities to share data with each other to create a broad, searchable network of aggregated data. This network can include other law enforcement agencies in the same state as well as agencies from other states. Any two municipalities can sign a memorandum of understanding (MOU) to share the data captured by each of their local Flock Systems with one another, thereby increasing the geographic reach and volume of data available to any authorized Flock user for that local system. Nevertheless, Flock Safety claims that it complies with state data laws, which sometimes limit the amount of data that can be shared between municipalities or law enforcement agencies. Yet, apart from these various state laws, data sharing decisions are left to the local policies of the individual law enforcement agencies that are Flock Safety clients. For HOAs and private communities with
In addition to aggregating data, the Flock system also provides real-time alerts for vehicles which are placed on a Flock “Hot List.” A Hot List can be locally created by a Flock user to target specific vehicles, and it is automatically sent to a local Flock System when a vehicle is identified from the Federal Bureau of Investigation‘s National Crime Information Center (“NCIC“). When a vehicle on a Hot List is identified, law enforcement is given real-time notification about the location of that vehicle. This information can be provided on the Flock online dashboard or pushed to a mobile phone. Notifications from a Hot List are pushed to a Flock System user several seconds after a Flock photo is taken and the vehicle algorithmically identified. Since vehicles are moving when they are photographed by Flock cameras, a Flock System Hot List hit could potentially be a stale lead by the time officers arrive at the location. Nevertheless, Hot Lists can be used by law enforcement to narrow a geographic search on the ground and to confirm a general area to try and locate a target vehicle. If a local law enforcement agency has signed a MOU with another agency or municipality, local Hot Lists can also search the wider Flock System network for a target vehicle.
The City of Wichita (the “City” or “Wichita“) and the Wichita Police Department (“WPD“) have utilized license plate readers since 2014 and have grown the program from using mobile scanning to also deploying Flock stationary cameras. Although the City initially used cameras from a different manufacturer for license plate scanning, it switched to the Flock System
Given these inherent geographical limitations, the City and WPD used data analytics to strategically place Flock cameras in high crime areas or on roads with a high volume of traffic. This deployment strategy led the City and the WPD to capture images of over 775,000 vehicles in the month of February 2025 alone. (See Def. Ex. A.) Access to the Flock System in Wichita is limited to commissioned law enforcement officers and not generally available to the public under the
Testimony from Capt. Slaughter confirmed that his WPD property crimes task force alone uses Flock on an hourly basis to assist in ongoing investigations or detect wanted vehicles for intervention and interception. On the day of the hearing, the Flock transparency page for the WPD showed that the WPD had run 2,705 Flock searches and had 37,113 Hot List hits in the 30 days prior to April 16, 2025 (though the majority of the Hot List hits were automatically created by Flock from the NCIC according to Capt. Slaughter). However, according to WPD policy, searching the Flock System or receiving an alert from the Flock System does not give probable cause or reasonable suspicion to stop a target vehicle. The City has MOUs with approximately 150 other jurisdictions across the country, but nearly all the other jurisdictions with which Wichita shares data are in Kansas, Missouri, Oklahoma, and Texas. Additionally, local HOAs and national businesses, such as Lowe‘s, share data with the Wichita Flock System. However, this shared data is only available to the Wichita Flock System and cannot be shared with other law enforcement agencies with which Wichita has signed an MOU. According to Capt. Slaughter, all local HOAs that have a Flock System currently share data with the WPD.
B) Events of January 3, 2024
To help meet its mission and mandate, the United States Drug Enforcement Administration (“DEA“) creates local domestic task forces, which are cooperative efforts between the DEA and local law enforcement agencies, to maximize resource usage and access local knowledge. One such taskforce is based out of Wichita and Jorge Fernandez is a DEA Agent and Task Force Officer (“TFO“) working out of this Wichita DEA office. Around 12:30 p.m. on January 3, 2024, TFO Fernandez received a phone call from Special Agent Colin Strickland in the Omaha, Nebraska,
Since TFO Fernandez did not have authorized access to any local Flock System, he passed this vehicle information to Officer Jonathan Marr, who was a member of the Haysville Police Department and assigned to the DEA taskforce. As part of his employment with the Haysville Police Department, Officer Marr had access to the Haysville Flock System.7 Since only members of local law enforcement are allowed to access their Flock Systems, the DEA taskforce must rely on local officers assigned to the taskforce to use any functionality of a Flock System when they want to search for a vehicle.
When Officer Marr initially ran a Flock search on the very generic vehicle descriptions of a white sedan with Nebraska plates, the Wichita Flock System returned numerous results, and the taskforce began to run individual plates to see if any were registered to Adam Safar. Agent Strickland then called TFO Fernandez a second time and provided him with a list of specific vehicles registered to Adam Safar. Using this knowledge, the taskforce was able to refine their Flock search query by the known license plate numbers for vehicles registered to Adam Safar and the Wichita Flock System returned a positive hit on a white, four-door Chevy Cruz which had been driving in Wichita that day. However, the officers did not know the specifics of who was in the vehicle nor what the vehicle contained; instead, they only knew that the vehicle itself was in Wichita.
Once the officers confirmed that a vehicle matching the description from Agent Strickland was in Wichita, four DEA agents in separate cars and three WPD community resource team members deployed onto the city streets to locate the vehicle. Officer Marr then set up a Flock Hot List for this target Chevy Cruz in the Wichita Flock System, and anytime the Wichita Flock System got a hit on this vehicle, he relayed the approximate location and direction of travel to all the officers on patrol. After approximately nine Flock System hits and four hours of searching (see Def. Ex. S), the taskforce finally found the target vehicle around 4:30 p.m. parked at a smoke shop on the southwest corner of 13th and Oliver streets in Wichita. The officers then followed the vehicle and surveilled it for several hours, until officers observed the target vehicle run a red light. At this point, officers initiated a traffic stop on the target vehicle, whereupon they discovered Defendant Sidney Jamar Jackson sitting in the front passenger seat. During the stop, a drug dog alerted to the presence of narcotics in the car and the officers searched the vehicle. This search led them to find approximately 2.38 kilograms of methamphetamine inside a bag in the trunk. Defendant was then arrested along with the three other occupants of the car.
On January 23, 2024, a federal grand jury returned a one-count indictment against Defendant for possession with intent to distribute 50 grams or more of methamphetamine in violation of
II. Analysis
The
A) Defendant does not have a reasonable expectation of privacy with regards to the use of an Automated License Plate Reader under the Katz Test
To assess whether a “reasonable expectation of privacy” exists, the Supreme Court has applied Justice Harlan‘s two-fold approach as explained in his concurrence in Katz v. United States, 389 U.S. 347 (1967).8
In this case, Defendant testified at the hearing that he did not know about the Flock System, its capabilities, or its deployment in Wichita, Kansas. However, he did testify that he believed that law enforcement could not track him without a warrant. This testimony by Defendant may satisfy the first requirement for a reasonable expectant of privacy; namely, that the Defendant has a subjective expectation of privacy in his movements. However, the Katz test requires more than subjective belief; it requires that a defendant have a subjective expectation of privacy “that society is prepared to recognize as reasonable.” Carpenter v. United States, 585 U.S. 296, 304 (2018).
With regard to this second part of the Katz test, Supreme Court jurisprudence has long held that a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. United States v. Knotts, 460 U.S. 276, 281 (1983). Visual surveillance of vehicles in plain view does not constitute an unreasonable search for Fourth Amendment purposes. See, e.g., New York v. Class, 475 U.S. 106, 114 (1986) (involving inspection of vehicle identification number ordinarily visible from outside vehicle, but which was obscured from plain view by papers). This is true even if the surveillance
In line with this reasoning, the Tenth Circuit has held that license plates are “in plain view on the outside of the car” and as a result “no expectation of privacy was infringed” when police observe and run license plates on vehicles. United States v. Matthews, 615 F.2d 1279, 1285 (10th Cir. 1980). See also United States v. Walraven, 892 F.2d 972, 974 (10th Cir. 1989) (“Because they are in plain view, no privacy interest exists in license plates“); Becerra v. City of Albuquerque, No. 23-2053, 2023 WL 7321633, at *2 (10th Cir. Nov. 7, 2023) (holding that since a defendant “had no expectation of privacy in his license plate information, the officers did not conduct a Fourth Amendment ‘search’ by examining it“). As the Seventh Circuit opines, “observing and recording the registration number [is] not a search within the meaning of the Fourth Amendment.” United States v. Miranda-Sotolongo, 827 F.3d 663, 668 (7th Cir. 2016). Additionally, the police use of a license plate tag reader to scan a license plate is not violative of the Fourth Amendment. United States v. Wilcox, 415 F. App‘x 990, 992 (11th Cir. 2011). Indeed, the very purpose of having a license plate is to communicate identifying information to officers and state officials. United States v. Ellison, 462 F.3d 557, 561 (6th Cir. 2006). “The reasoning . . . of the Supreme Court . . . leads us to agree that a motorist has no reasonable expectation of privacy in the information contained on his license plate under the Fourth Amendment.” Id.
B) Law enforcement‘s limited use of the Flock System to track Defendant in one day is not violative of the Fourth Amendment under Carpenter
Although Defendant does not have a reasonable expectation of privacy in his movements in a vehicle, he contends that the Flock System, which captured the Chevy Cruz‘s movements on nine different occasions around Wichita on January 3rd, violated his expectation of privacy in the totality of his movements under the Supreme Court‘s 2018 decision of Carpenter v. United States. 585 U.S. at 310. In Carpenter, police used historical cell-site location information (“CSLI“) obtained from a cell phone service provider to track the movements of a defendant over the course of 127 days. This data included 12,898 individual location points which “catalog[ed] [the defendant‘s] movements—an average of 101 data points per day.” Id. at 302. This CSLI data was not only “detailed, encyclopedic, and effortlessly compiled” but also “continuously reveal[ed] [an individual‘s] location.” Id. at 309. The Supreme Court held that although law enforcement may be able to track an individual‘s location for a short period of time, they could not “secretly monitor
First, there is a distinct difference in the quantity and quality of the photos at issue in this case as opposed to the data at issue in Carpenter. In reaching its decision that law enforcement‘s use of CSLI data required a warrant, the Supreme Court considered Fourth Amendment precedent regarding GPS tracking. In particular, the Court paid special attention to the distinction between the cases of Knotts and Jones. In deciding that Carpenter fit within the GPS tracking framework of Jones, the Court held that the volume of data “provide[d] an intimate window into a person‘s life” such that the aggregation would provide law enforcement access to otherwise unknowable
The Flock System at issue here lacks the wide and continuous tracking of a defendant which the Supreme Court has stated is constitutionally suspect. In this case, there were only nine distinct points where the Flock System captured the Chevy Cruz on camera, and these photographs occurred over the course of just one day. The photos did not show the identity of anyone inside the car, nor did the photos provide any insight into any intimate details of their personal lives. At best, the photos show that the car is occupied by multiple individuals, but there is no way for police to use this information to discern private details that would otherwise be covered by a reasonable expectation of privacy. The police in this case did not even know the identity of Defendant until after the target vehicle was pulled over for a traffic stop. This stands in stark contrast to the thousands of datapoints and over one hundred days of surveillance in Carpenter, and the 2,000 pages of data over a 4-week period which the Supreme Court construed as a dragnet style of search in United States v. Jones, 565 U.S. at 409 n.6. “Ultimately, resolution of this issue focuses on ‘the extent to which a substantial picture of the defendant‘s public movements are revealed by the surveillance’ from the ALPR.” United States v. Cooper, No. CR 23-131, 2025 WL 35035, at *5 (E.D. La. Jan. 6, 2025) (citing Commonwealth v. McCarthy, 142 N.E.3d 1090, 1104 (2020)). Thus, given the limited amount of information available to law enforcement, the court is not convinced that the amount of data derived from the Flock System is constitutionally suspect. And this court is not alone in reaching this conclusion. In evaluating similar questions on the extent of data obtained by ALPR systems, numerous courts have held that the use of ALPR systems is not violative of Fourth Amendment rights when faced with questions nearly identical to the ones raised
It is also instructive to look at cases where courts have found law enforcement surveillance violates the Fourth Amendment. In Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit faced a challenge to the city of Baltimore‘s Aerial Investigation Research program which used aerial photography to track movement across 90% of the city. 2 F.4th 330, 334 (4th Cir. 2021). This program used cameras that could capture 32 square miles per image per second and obtained 12 hours of coverage per day. Id. The Fourth Circuit ruled that this program of mass surveillance was a search under the Fourth Amendment and Carpenter and enjoined the program from continuing. Id. at 347-48. Similarly, the Fifth Circuit recently addressed the question of whether the use of Google‘s geofencing data constituted a search under the Fourth Amendment which required a warrant. United States v. Smith, 110 F.4th 817, 830 (5th Cir. 2024). Google maintains an extensive location history database by tracking a Google account user‘s location on average every two seconds, and Google stores this data for at least eighteen months. Id. at 823. Law enforcement began accessing this data to identify all Google users who were in a geographic area during a given time frame. Id. at 824-25. Using the Carpenter
Contrast these two clear examples of widespread mass surveillance with the limited surveillance of the Flock System in this case. It is true that the Flock System captures photographs of any car that passes a camera; however, the limited number of cameras means that the amount of data collected is incomplete and does not track the totality of an individual‘s movements. As persuasively noted by Judge Ambrose in the Western District of Pennsylvania, “[u]nlike the all-pervasive cell-site location data collection in Carpenter, and its ‘all-encompassing’ and ‘near-perfect surveillance’ of a cell phone user‘s comings and goings, the ALPR technology at issue captures only the public movements of vehicles that happen to pass by locations on a public street in view of an ALPR camera . . . Even in the aggregate, the ALPR cameras [sic] ‘capability to capture multiple shots of a single vehicle and/or store historical data does not approach the near-constant surveillance of cell-phone users’ public and private moves that so concerned the Court in Carpenter.” United States v. Bowers, No. 2:18-CR-00292-DWA, 2021 WL 4775977, at *3 (W.D. Pa. Oct. 11, 2021). Judge Milazzo in the Eastern District of Louisiana agreed, noting, “the data collected by the ALPR system is far more limited than CSLI. A person must actively pass by one of the cameras for any data to be collected and even then, only a small amount of information is collected and retained. Individual snapshots in certain locations at specific times ‘hardly rise to the level of persistent, unceasing public surveillance that the courts found troublesome in Carpenter.‘” United States v. Cooper, No. CR 23-131, 2025 WL 35035, at *6 (E.D. La. Jan. 6, 2025) (citing United States v. Martin, 753 F. Supp. 3d 454, 473 (E.D. Va. 2024)). The above reasoning convinces the court that the amount of information currently obtained by the Flock System in Wichita is not the pervasive and continuous gathering of information with which the Supreme
Second, Flock cameras do not capture images of people, but rather the Flock System is limited to capturing only pictures of vehicles. As a result, data obtained from Flock cameras is very different from data obtained from cell phones. At the hearing, Mike Molina testified that the Flock System may be able to gain some information about the passengers in a vehicle if they are sticking their hands out the window at the time a photograph is taken by a Flock camera. However, the Flock System cannot identify any biographical or biological information which would allow law enforcement to track individuals instead of just their vehicles. Ultimately, the Flock cameras “exposed no details about where [Defendant] traveled, what businesses he frequented, with whom he interacted in public, or whose homes he visited, among many other intimate details of his life.” United States v. Brown, No. 19 CR 949, 2021 WL 4963602, at *3 (N.D. Ill. Oct. 26, 2021). Instead, a search of the Flock System “only reveals when, where, and in which direction a certain vehicle was driving—information of limited value, and data from which it is difficult to discern an individual‘s familial, political, professional, religious, and sexual associations.” United States v. Jiles, No. 8:23-CR-98, 2024 WL 891956, at *19 (D. Neb. Feb. 29, 2024). Given that the Flock System does not capture any biographical details of any individuals apart from incidental details to driving on a public road, using the Flock System to track a vehicle is not the same kind of personal search that the Supreme Court critiqued in Carpenter.
Moreover, it is instructive to observe the fundamental differences between the nature of the surveillance in cases like Carpenter and Jones versus the surveillance at issue in this case. In
As for the Fourth Circuit‘s decision in Leaders of a Beautiful Struggle, the court noted that once word spread about the Baltimore Police Department‘s aerial surveillance pilot program, “[i]n the face of public outcry, the program was discontinued.” 2 F.4th at 333. While it is does not appear that the Fourth Circuit attached legal significance to that information, such a reaction by the public would seem to have at least some bearing on the inquiry as to whether “an expectation of privacy that society is prepared to consider reasonable is infringed.” Jacobsen, 466 U.S. at 113. In this case, no evidence was presented that such a public response to use of the Flock System by law enforcement has occurred.
To be sure, the court is concerned that the aggregation and searchability of the photos taken
Therefore, Defendant has not shown that his Fourth Amendment rights were violated by the Government‘s warrantless use of the Flock System to search for a specific license plate number and to create a Hot List to track that specific license plate number.
Nevertheless, the fact that the Flock System does not presently violate an expectation of privacy does not foreclose the potential for Flock to one day rise to the level of dragnet search with which the Supreme Court has voiced concern. Indeed, the court can easily see how the more widespread and pervasive deployment of Flock cameras (or cameras connected to the Flock System) could eventually rise to the level of systemic and continuous tracking with which the Supreme Court took issue in Carpenter. As was noted by Judge Carlos Bea of the Ninth Circuit, “I understand that ALPRs may in time present many of the same issues the Supreme Court highlighted in Carpenter. ALPRs can effortlessly, and automatically, create voluminous databases of vehicle location information . . . In retrospective searches, detailed and potentially private information may be exposed.” United States v. Yang, 958 F.3d 851, 863 (9th Cir. 2020) (Bea, J., concurring). Undeniably, the use of automatic license-plate readers to generate a pretext for stopping drivers is something which is not new. See United States v. Ellison, 462 F.3d 557, 564 (6th Cir. 2006) (Moore, J., dissenting) (noting that an officer running a license plate number
With the rise of new technologies, courts are left to apply aging Fourth Amendment doctrines in an era of increasing government surveillance. Increased computing power, when combined with artificial intelligence, allows the government to process vast amounts of data on nearly all its citizens. We live in a constitutional republic, not a burgeoning authoritarian society. Many Fourth Amendment carveouts and doctrines were crafted in an era where there was no capacity to replace human surveillance with computer surveillance. This presents unique challenges, since aggregated data on actions and movements can now be cross referenced to create individual profiles once suspicion has become centered on an individual. As the Supreme Court in Carpenter noted with regard to CSLI information, “the retrospective quality of the data here gives police access to a category of information otherwise unknowable. In the past, attempts to reconstruct a person‘s movements were limited by a dearth of records and the frailties of recollection . . . this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular
Indeed, the Fourth Amendment is a rather crude tool to fashion rules on such a rapidly evolving realm of technology. By the time hundreds of trial court judges apply their own individual notions of what the Constitution requires on this subject and the appellate process has run its full course, the creative application of newer technology may have rendered those rules obsolete or otherwise inadequate to curb the abuses of an ever-growing surveillance state. For this reason, it seems incumbent on legislative bodies to address those concerns. Those institutions are far better equipped to regulate the use of surveillance systems like the Flock System through the legislative process of hearings and investigations. This legislative process, subject to the public accountability of the ballot box, can craft detailed requirements suited to the current state of technology and revise those requirements as the capabilities of those systems, and how they are deployed, inevitably change. By contrast, the Fourth Amendment is a blunt instrument wielded by judges who are limited by the record compiled before them. These judges oftentimes lack the
Given the current status and configuration of the Flock System in the Wichita area, the court finds that, in this particular case, there is no violation of an expectation of privacy that society would see as reasonable.
III. Conclusion
Defendant‘s motion to suppress (Doc. 22) is DENIED. The court notes that there are only six days remaining for trial under the
IT IS SO ORDERED. Dated this 29th day of May 2025.
_s/ John Broomes________________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE