Privacy group wants warrant requirement for license readers

SAN FRANCISCO -- Law enforcement should be required to obtain search warrants to gather information from systems that track license plates, an attorney for the Electronic Frontier Foundation argued Thursday.

Raising constitutional privacy violations, Jennifer Lynch urged a state appellate court to reverse a jury that found a Piedmont resident guilty for assault with a firearm because the prosecution improperly introduced evidence from an Automated License Plate Reader database.

Lynch warned of the government, without individualized suspicion, using a "vast database of billions of scans" that "can reveal private and sensitive information about our lives."

The 1st District Court of Appeal panel of Justices Mark Simons, Henry Needham and Gordon Burns did not rule on the matter and took it under submission.

The case concerns whether an Alameda County jury would have found Joaquin Gonzales guilty without the utilization of evidence from an automated license plate reader system that was obtained without a search warrant. The defendant allegedly discharged a firearm that hit a car beside him.

Automated license plate readers collect and store data on every vehicle they encounter, regardless of whether individual drivers are suspected of criminal activity. The information, which includes tracking people's movements, is kept in systems that are accessible to several federal, state and local law enforcement agencies, prompting concerns of mass surveillance.

The panel did not inquire about the constitutionality of the practice. The justices confined questions to whether the admission of the license plate data was "harmless."

Walter Pyle, who represented Gonzales in the trial, said the introduction of the evidence swung the jury toward a guilty verdict.

Simons was unconvinced. He said that the rest of the state's case seemed "overwhelming."

The test is simply whether it could have "possibly" influenced the decision, Pyle responded, adding the prosecution needs to prove otherwise.

Lynch emphasized the jury at least partially relied on the license plate data to reach a guilty verdict.

Melissa Meth, representing the state Department of Justice, disputed the claim that the prosecution needed the evidence in question to secure a guilty verdict, citing an eyewitness account of the incident. Pyle said the witness only heard the gunshot, which he said could have been confused with fireworks given it occurred on July 3.

Noting 4th Amendment protections, attorneys representing Gonzales argued any information gathered from the system should have been suppressed. People v. Gonzales, A150198 (Cal. App. 1st Dist, filed Jan. 5, 2017).

The justices can decide that the admission of the evidence was not harmless and send the case back to Alameda Superior Court to be tried again. They do not have to rule on the constitutionality of the practice. Evidence gathered from the automated license plate reader database in this case was maintained by the Northern California Regional Intelligence Center, which keeps information recorded by roughly 50 Bay Area law enforcement agencies.

Lynch said Piedmont is among the largest collectors of license plate data. In a city of 200,000 people, information on 21.3 million plates was collected, amounting to 190 scans per person.

Critics of the practice argue law enforcement can access the data, which can be collected in sensitive places such as health centers, immigration clinics and religious centers, to track and record the movements of millions of people who have not been suspected of crimes. Opponents say it is an effective law enforcement tool.

A Fairfax County judge in April 2019 ordered the county police to stop maintaining a database of pictures of license plates that included the time and location they were taken. He ruled the "passive use" of information collected by automated license plate readers violates Virginia privacy law.

Another case is working its way through the 9th U.S. Circuit Court of Appeals in which the Electronic Frontier Foundation filed a friend-of-the-court brief, arguing a U.S. Postal Service inspector violated the Fourth Amendment by using a commercial automated license plate reader database to locate a suspected mail thief.