A new ruling by a federal judge found that Flock itself constitutes “indiscriminate mass surveillance.” In the specific case before her, the judge found that officers could not search this system without a warrant and suppressed all evidence downstream of that search. This included all evidence discovered during the subsequent traffic stop, including nearly 100 pounds of methamphetamine found inside the vehicle.
The judge in this case specifically cited the recent Chatrie v. United States decision, which found that tracking a person’s location data required a warrant.
This new ruling potentially opens the door even further, including to arguments that a warrant may be required to photograph, log, and track the locations of vehicles in a system like Flock. Here in Suffolk, the city is currently doing this indiscriminately roughly 44 million times a month.
It will likely be some time before this case makes its way through the Court of Appeals and possibly even the Supreme Court. If the Supreme Court does not take it up, the ruling may never apply directly here in Virginia. But there are almost certainly other cases happening right now where attorneys are going to hear about this ruling and use it to support similar Fourth Amendment arguments, including cases here in Virginia.
It is only a matter of time before we start seeing evidence suppressed in cases here in Virginia because officers searched people’s location histories without warrants. We could see incredibly expensive relitigation of cases and appeals, and potentially even convicted criminals who were essentially proven guilty walking free because their Fourth Amendment rights were violated.
Officers often tell us that these tools are very useful and that they help solve heinous crimes. If the crimes they are solving are so serious, officers should want to build the strongest cases possible against their suspects. They should not violate the rights of everyone just to build a case that could fall apart the second it is put in front of a judge considering the Fourth Amendment.
At this point, continuing to rely on warrantless Flock searches is not just a privacy issue. It is a legal and financial risk to the city, to prosecutors, and to every criminal case built on evidence obtained through the system.
City leaders were warned that this technology was moving faster than the law. Now a federal judge has suppressed a major drug case because of how it was used. Suffolk should not wait until the same thing happens here.