Massachusetts Supreme Judicial Court Rules Police Use of Automatic License Plate Readers Could Constitute a Search

The Massachusetts Supreme Judicial Court today ruled that when police use automatic license plate readers (ALPRs) to track a suspect’s car as it travels on public roadways, it might constitute a search.  However, in the case being considered, the police limited the use of the ALPR system to track the defendant, so his constitutional rights were not violated.  The name of the case is Commonwealth v. McCarthy.

Around the beginning of 2017, the Barnstable Police Department began suspecting the defendant was a drug dealer, working with a codefendant to distribute heroin.  The cops identified the defendant’s car and added his license plate number to the ALPR “hot list.”  Automatic license plate readers are cameras that record the license plate numbers of all passing cars and enter the numbers into a database.  The database can be searched by plate number (providing the cops with a car’s travel history) or is can provide real-time alerts to the police (if a suspect’s car passes a camera, the cops will be immediately notified).  The four cameras at issue in this case were located on both ends of the Bourne and Sagamore bridges, meaning there was a record of the defendant’s car every time he entered or exited the Cape.  The cops used the alert system to conduct surveillance of the defendant on two occasions (after receiving an alert that he was crossing one of the bridges onto the Cape) and later tapped into the historical data to learn the defendant had traveled onto the Cape on 48 days during a two and a half month period (including multiple trips onto the Cape on the same day).  The cops ultimately stopped the defendant, who made incriminating statements.  The defendant was indicted and charged with drug-dealing offenses and he filed a motion to suppress the ALPR data, contending it constituted an illegal warrantless search.  A superior court judge denied the motion and the Supreme Judicial Court affirmed.

The Court needed to decide if photographing motorists’ license plates without a warrant (and keeping a record of the vehicles’ movements) constituted a search from a constitutional perspective.  Whether a search occurred depends on whether the defendant had a reasonable expectation of privacy in his travel over the bridges.  In one sense, all of us who drive in public understand the exterior of our vehicles might be observed by police officers, and a police officer has every right to look at and record our license plate numbers.  Therefore, it does not constitute a search if a police officer pulls behind a motorist and runs his license plate number through a database to see if the vehicle’s owner’s license is suspended.  However, the SJC has recognized that a sustained, lengthy period of electronic surveillance, even in public places, does invade a motorist’s reasonable expectation of privacy.  When data related to a motorist’s vehicle is electronically collected over a substantial period of time, a privacy interest is implicated.  Therefore, the Court concluded with enough ALPR cameras in enough locations recording a motorist’s movements, a search will have resulted.  The question in this case, then, was whether the ALPR data collected against the defendant was persistent enough to constitute a search.  The SJC said it was not.  The only information to be gleaned from the cameras was when the defendant was driving onto or off of the Cape, and could not provide any additional details of the defendant’s travels.  According to the Court, the limited information did not allow the cops to track his travel enough to reveal “the privacies of life.”  Therefore, in this case, the police use of the ALPR data did not constitute a search and the defendant’s motion to suppress was properly denied.

The problem with the Court’s opinion is it provides no guidance whatsoever for judges who will consider future ALPR cases that involve more extensive tracking than what occurred in the case.  How much surveillance is too much?  The Court declined to say, which means the same exact issue will return to the Court on some future case.  The Court’s opinion acknowledged that, “[i]n declining to establish a bright-line rule for when the use of ALPRs constitutes a search, we recognize this may bring some interim confusion.”  It’s true.  While this opinion announced a basic legal principle, it will be useless to attorneys who are litigating ALPR cases (and judges who are deciding them) going forward.