NORFOLK — The Virginia Court of Appeals this week reversed a Norfolk judge’s ruling that tossed evidence gathered with the use of Flock Safety cameras.
The ruling marked the first time a Virginia higher court has weighed in on the surveillance system that’s grown dramatically over the past few years, experts said.
In April, Norfolk Circuit Court Judge Jamilah D. LeCruise ruled in an attempted rape case that a police detective should have gotten a search warrant to access the city’s Flock Safety system, which includes 172 cameras. Because he did not do that, she ruled, Norfolk prosecutors couldn’t use as evidence either the Flock photographs or statements the defendant made when he was confronted about them.
Prosecutors appealed, and a three-judge panel at the Court of Appeals disagreed with LeCruise — ruling no search warrant was needed.
“A person driving his vehicle on a public street with his license plate in plain view has no reasonable expectation of privacy that his vehicle and license plate will not be seen by other
persons, including law enforcement officers,” the panel ruled.
LeCruise’s April ruling was her second in two years that found Norfolk police violated a defendant’s constitutional rights under the Fourth Amendment with the warrantless Flock searches.
“The citizens of Norfolk may be concerned to learn the extent to which the Norfolk Police Department is tracking and maintaining a database of their every movement for 30 days,” LeCruise wrote in a prior ruling last year, agreeing with a defense lawyer’s casting the Flock system as “a dragnet over the entire city.”
But at least two other Norfolk judges and some in other cities ruled the other way, finding that warrants weren’t needed. Those judges said Flock currently does not provide the same level of tracking as getting someone cell phone GPS data, which do require warrants.
But judges upholding the warrantless use of the Flock system — including a Richmond federal judge — said the need for warrants could change as more cameras are added.
A survey by the Daily Press and The Virginian-Pilot this year found that 15 police departments and sheriff’s offices have nearly 700 Flock cameras throughout Hampton Roads.
The cameras — mounted on 12-foot poles — take pictures of all cars that pass. The system logs license plates and vehicles’ make, body type and color. The data is stored remotely and easily shared between police agencies.
Privacy advocates are voicing increasing concern about tracking law abiding citizens, even as the devices have helped to solve crime. The issue has reached the General Assembly and a separate civil case is pending in Norfolk federal court alleging widespread violation of citizens’ constitutional rights.
Christopher Bettis, an assistant Norfolk public defender who has tracked the issue, said he was disappointed.
“My concern is that a lot of the judges that have been ruling against us are kind of stressing, ‘Oh it’s just one photo or it’s just three photos and that’s a pretty minor thing,’” Bettis said.
“I’m a little worried that the courts are not taking an in-depth enough view of just how powerful Flock is,” he said, referring to the number of cameras, the system’s robust software and the massive sharing between police agencies. “That’s just not getting the full focus and attention of the courts yet.”
But Norfolk Commonwealth’s Attorney Ramin Fatehi praised the decision.
“We felt strongly that the assertion that the use of Flock violated the Fourth Amendment was mistaken,” he said.
“Having spent the last nearly four years going to homicide scenes, I have seen firsthand cases get solved using Flock that would have gone absolutely nowhere absent Flock. It’s a major contributor to a huge improvement in Norfolk’s case clearance rate for homicides.”
He noted that Flock takes photos of cars and the license plates the government requires of any vehicle driving on public roadways.
“It doesn’t photograph faces,” he said.
Moreover, Fatehi contended Flock cameras “protect citizens from over-policing” because it allows officers to hone in on particular vehicles rather than having to cast a wider net.
In fact, he termed the cameras a “revolutionary tool” that boosts public safety and civil rights.
“It is the responsible use of technology to help the police zero in on the people they need to be talking to,” Fatehi added. “If limitations are placed on Flock that render it effectively useless, the alternative is not a world of perfect privacy. It is a world of stop-and-frisk, where police have to … engage in unnecessary and dangerous police-citizen encounters.”
This week’s appeals court decision is “unpublished.” That is, though the ruling is public and on the court’s website, the unpublished designation means it legally applies only to the particular case at hand and isn’t binding on others.
Still, Bettis and Fatehi said it was an important ruling because judges will statewide look to it for guidance on a high-profile issue.
In the Norfolk attempted rape case, a woman went to a police station Jan. 24 and reported that a man she knew, Ronnie D. Church, assaulted her and tried to rape her.
Norfolk Police Sgt. J.E. Myers questioned Church. The man told the officer he went to the woman’s home, where there was no altercation, and then they went to a car wash together.
But other witnesses said they saw Church driving by the police station, with Myers believing he was searching for the woman filing the report. When the officer entered Church’s car into the Flock system, it didn’t show him driving in the direction he reported.
Church’s attorneys with the Norfolk Public Defender’s Office moved to suppress the statements Church made when confronted with the discrepancy, given that Myers didn’t get a search warrant for the Flock system.
Peter Dujardin, 757-897-2062, [email protected]