Rep. Tom Gann says certain license plate scanning technology local law enforcement uses could jeopardize viable criminal prosecutions. One Oklahoma District Court’s recent decision highlights the lawmaker’s concern.
Automated License Plate Recognition technology, or ALPR, is an AI-powered surveillance tool. It is a network of cameras constantly watching drivers in towns that use it and logging their locations, possible identities and other private information.
It’s managed by companies like Flock Safety, an Atlanta-based tech firm, which promises a single solution for law enforcement to lower crime in communities through swift information collecting and organizing.
The explanation of one benefit of using the tech on the company’s website says it helps law enforcement achieve “scalable city-wide coverage and simplified access to intelligence.”
Other companies selling ALPR packages include Motorola, Genetec, NDI Recognition Systems, Axis Communications and Hunter Engineering Company.
Law enforcement agencies across Oklahoma use the service as advertised: a force multiplier to collect data on individuals for later use as prosecutorial evidence.
Rep. Tom Gann, R-Inola, and a District Court Judge in McClain County, however, aren’t letting law enforcement get away with using the tool’s collected data as evidence in court, citing violations of state statutes surrounding privacy, and a 2016 law meant to lower uninsured driver numbers.
Flock Safety Communications Director Holly Beilin said the cameras only capture and store license plate data, not any personal information about individuals.
“Flock ALPR cameras do not contain or collect any information about drivers," Beilin said in an email. "The system does not connect to the DMV or any vehicle registration database, it contains no personal information about vehicle drivers or individuals, and it does not utilize facial recognition. It only collects vehicle and license plate information, which is not considered private or sensitive.”
But when there’s a reliance on ALPR by Oklahoma law enforcement to prove a crime not related to driver’s insurance and any evidence collected by the tech gets dismissed, the case against a charged perpetrator may also get dismissed.
“Many legislators understand that Oklahomans do not want this Orwellian approach,” Gann said in a Sept. 30 press release. “They recognize it as a breach of the Fourth Amendment and foresee future courts continuing to rule it unconstitutional, placing many criminal convictions into question.”
The McClain County Case
The court case involves the roadside arrests of Kayode Ifabiyi and Ngoc Nguyen, the seizure of a handgun and nearly $100,000 in cash wrapped in dryer sheets by the Norman Police Department.
In court documents, Special Investigations Criminal Interdictions Unit officer Sgt. David Stevenson alleges smelling marijuana inside the vehicle he pulled over for swerving. In the investigative report for the arrests, Stevenson wrote that he checked a federal license plate database to confirm where the drivers said they were coming from and going, which was true.
“While checking a federal license plate reader database, I found that the GMC Yukon Kayode Ifabiyi and Ncoc Nguyen were driving south through Denton at 12:43 hours on 01/04/2023 hours,” the Sgt. Stevenson wrote.
Some math to sort out drive times, recollections of training, and reliance on ALPR data to reinforce the probable cause was all that Sgt. Stevenson needed to search the vehicle. The report lays out his thought process in his own words.
“It is approximately 6 hours and 45 minutes from the location of the traffic stop to Baytown Texas. It is approximately 2 hours and seven minutes to Denton, Texas from Purcell,” he writes. “This would leave Kayode Ifabiyi and Ncoc Nguyen less than three hours to stop and visit while in the Baytown area. A round trip from Kayode Ifabiyi and Ncoc Nguyen’s address to Baytown and back is approximately 15 hours.
“It is not common for the general motoring public to drive for that long and to visit for less than three hours before returning. In my training and experience, I know this is common for drug smugglers to have similar travel patterns.”
The defendants' attorneys say footage of the body camera worn by Stevenson shows no swerving and that smelling marijuana alone is not probable cause. Instead, they claim Norman police had to have illegally used ALPR data to track the individuals they arrested across state lines without suspicion of any crime.
“In the case at hand, the Norman Police Department utilized ALPR data to track the Defendants' movements on Interstate 35, a major highway spanning approximately 1,568 miles from Texas to Minnesota, passing through Oklahoma, Kansas, Missouri, and Iowa,” court filings read. “ALPR data in this case provided detailed information on when and where my client had been driving, despite Defendants not being under surveillance or suspected of any crime.”
The judge agreed such evidence couldn’t be used to prosecute under state law and dismissed it but maintained smelling cannabis was enough probable cause to search the defendants’ vehicle.
Innocent until proven guilty, it’s not yet clear if the gun, cash and smell — what officers claim is evidence of drug trafficking — are connected to any crimes.
The case against ALRP
Gann held an interim study in the House States’ Powers Committee about automated camera technology and what it represents. He pointed to a billboard he saw off the side of I-44 entering Oklahoma City. It advertised the Flock Safety cameras by saying “Oklahomans to join the Flock,” Gann said.
“That’s not a workable situation.”
Gann said using Automated License Plate Reading tech to violate state law will make communities more dangerous because it could mean criminals being released after they’re caught.
“When the government uses these devices to scan every passing vehicle, they are violating Oklahoma law,” he said. “This puts every resulting conviction in jeopardy.”
Using the cameras also violates the Fourth Amendment protections against unwarranted searches and seizures, not to mention a basic right to privacy, Gann said.
Courts across the country have ruled for and against that argument based on the specific facts of the various cases that have come up.
Chris Gonthier is the city council member representing Pryor’s fourth ward. He spoke out against ALPR tech first within the context of his local municipality, where law enforcement was pushing for its implementation. That prompted a backlash against Gonthier, he said, which prompted him to testify at the House study.
“I have been targeted and labeled as anti-police and this was abundantly clear when on the campaign trail while I was running for reelection,” he said. “The fact is, the vast majority of data collected and stored is not on criminals, but the innocent. The Fourth Amendment to the Constitution states the right of the people to be secure in their persons, houses, papers, and effects. Flock cameras and the warrantless collection of information is indeed a violation.”
Gann is on a mission to better regulate the tech by law enforcement, especially since some lawmakers have already tried to formalize its use.
“In the 2024 legislative session, a proposal to authorize the scanners, House Bill 3570, failed to receive a House floor vote, and a comparable measure, Senate Bill 1620, was defeated by a wide margin,” Gann said in a press release.
He said the interim study is meant to help him draft legislation that stops the use of ALPR cameras by law enforcement in Oklahoma, before their abuse becomes uncontrollable.
The ACLU’s senior policy counsel, Chad Marlow, laid out a few issues for lawmakers to consider as they look at potential legislation around AI-powered surveillance technology.
Here is Marlow’s shortlist of concerns he said lawmakers should ensure there are “guardrails” against in any future legislation
- Real-time location tracking of private people that never sleeps.
- Violations of peoples’ right to expect and have privacy.
- Data sharing between agencies at local, state, federal and international levels.
- Discriminatory deployment of camera hardware in low-income, high-crime areas.
- Unjustified road stops, searches and asset forfeitures.
Marlow said the best way to ensure those concerns are mitigated is for lawmakers to ask themselves, when use anywhere is in question, “Do the benefits of using ALPR exceed its risks to individual rights?”
For people like Gonthier of Pryor, the answer is always “no.”
“They don’t belong anywhere but in the garbage,” Gonthier said shortly after the interim study wrapped up.
Gann said It’s unclear how many local law enforcement jurisdictions in Oklahoma use Automated License Plate Recognition in their daily operations.
However, an open-source map called Surveillance under Surveillance plots hundreds of cameras, not limited to the ALPR kind, throughout the state’s small towns and large metro areas.
Editor’s note: This story has been updated to reflect that Flock Safety is one company among many offering ALPR services to law enforcement agencies in Oklahoma and other states, and to include a statement by Flock Safety regarding what information is collected and stored by their cameras.
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