In this episode of Unwritten Law, Mark Chenoweth and John Vecchione are joined by Andreia Trifoi to discuss NCLA’s constitutional challenge to the City of Marco Island’s use of automatic license plate readers (ALPRs) — a surveillance system that records and stores the movements of every driver entering or leaving the island.

Because Marco Island has only three bridges, residents are photographed and tracked multiple times a day, with their location data retained for years and potentially shared with other agencies or private companies. The hosts explain why this dragnet surveillance goes far beyond ordinary police observation and raises serious Fourth Amendment concerns.

This episode explores how emerging surveillance technology is testing the limits of constitutional privacy — and why courts must confront these questions before mass tracking becomes the norm.

John Vecchione: Welcome to Unwritten Law. This is John Vechhione. I’m here with Mark Chenoweth, and we are joined by Andreia Trifoi, who has just written, I think, your first opening brief, right?

Andreia Trifoi: Yes, this is my first brief.

John Vecchione: Tell us what the case is and tell us what we’re doing here.

Andreia Trifoi: Right. So, the case is Shemel v. City of Marco Island, Florida. And here we are challenging Marco Island’s use of automatic license plate readers. So, it might be helpful to explain what an automatic license plate reader is.

John Vecchione: Yes.

Andreia Trifoi: So, basically, an ALPR is a high-speed camera that is capable of capturing a photograph of every license plate of every car that comes within its field of vision. It then converts the license plate number on that vehicle into a computer-based database –

Mark Chenoweth: A digital record.

Andreia Trifoi: Yeah. A digital record that usually records the time that the vehicle passed in front of it, the precise location, and it’s able to capture about 1,000 photographs per minute. So, they’re very, very high speed, and they translate the data into the database within – immediately.

John Vecchione: And in this case, in Marco Island, they have positioned these cameras so that you cannot get on or off the island without passing by one of these cameras.

Andreia Trifoi: Exactly. So, Marco Island is very small. It’s roughly 12 square miles. It has a population of about 18,000 people. And it has no commercial –

Mark Chenoweth: Smaller than my hometown in Kansas.

Andreia Trifoi: Yeah. Yeah, it’s very small. There’s no commercial train or airline service, so really the only way to get on and off the island is by driving, and as a Floridian, I can tell you, you can’t get anywhere in Florida without a car. So, you have to drive on one of the three bridges that lead on and off the island to really get anywhere. Get to work, Marco Island doesn’t have a lot of – it doesn’t have a major hospital, it doesn’t have a lot of houses of worship and other places of work, schools, things like that. So, residents –

Mark Chenoweth: It’s a residential community.

Andreia Trifoi: Yeah. Pretty much. It has a lot of hotels and things. But residents like our clients have to cross on one of those bridges pretty much every day. So that means that they are photographed every day and multiple times a day, usually.

John Vecchione: And what does – what do the authorities do with these photos?

Andreia Trifoi: So, it is unclear as of now exactly what they do. But the city has indicated that it collects the photos of everyone and it can share it with other law enforcement agencies and usually, it’s meant to whenever there’s a crime in the area, they can compare the – if they have a suspect, they can compare the suspect with the vehicle that’s gone by a camera on a certain day or location. But Marco Island itself is very low crime. It’s a residential area, not a lot of crime there. The city said it intends to use it to proactively reduce crime. So, actually search the database and find if there’s a traffic violation or something like that.

Mark Chenoweth: So, they say the lack of crime is proof that it's working? Is that sort of their theory?

Andreia Trifoi: Yeah. Pretty much.

John Vecchione: And so, who are our clients? What do they do and what are they complaining of?

And so, the idea is that by aggregating all the ALPR data for three years, Marco Island can basically paint a picture of our clients’ lives. So, they can tell with certainty when they are off the island, when they’re on the island, when they’re – what time they leave for work or school or house of worship or something like that.

John Vecchione: Right. So, their – basically, their habits and whereabouts.

Andreia Trifoi: Yes, exactly.

John Vecchione: And, so what – we’ve filed this in District Court. What happened there?

Andreia Trifoi: So, it was pending for a while.

John Vecchione: Long while.

Andreia Trifoi: Long while, and all that time, ALPRs are still capturing data. So, the district court dismissed our complaint in October of 20 – two months ago. And basically, said that the collection of license plate numbers, Marco Island’s collection of license plate data, does not constitute a search within the meaning of the Fourth Amendment. And so, they dismissed our complaint; we appealed and just filed our opening brief.

And basically, we argued that the district court mischaracterized the privacy interest that our plaintiffs are asserting. So, it’s not that we’re challenging the mere collection of license plate numbers; it is the aggregation of that data for three years, in particular, that violates our client’s reasonable expectation of privacy in the whole of their physical movements.

Mark Chenoweth: Well, it gives the picture that no police officer would be able to get just by watching them occasionally or even tailing them for a day. I mean, this gives them a whole picture of where they are, when they are, and so forth.

John Vecchione: And, why do we think that’s a violation? What’s the Supreme Court case?

Andreia Trifoi: Yeah. So, our case relies on Carpenter v. United States. So, it might be helpful to give kind of a background, very brief background of the Supreme Court precedent in this area. So, the Supreme Court precedent is that you have no expectation of privacy in things you publicly convey. And that extends to –

Mark Chenoweth: Your license plate.

Andreia Trifoi: Yeah, your license plate. Or if you’re driving on a road, you don’t have an expectation of privacy when someone can view you driving on the road. So, in a case, I think it’s Knotts v. United States, the court said that the police officer’s use of a beeper to rack a suspect for a very short period, this was in the 80s, so very –

Mark Chenoweth: When you said beeper, that kind of gave it away. Yeah.

Andreia Trifoi: So, very, very, you know –

Mark Chenoweth: Have you ever seen a beeper, Andreia? Honestly?

Andreia Trifoi: Yeah, yeah.

Mark Chenoweth: You have? Okay, all right. I know John has.

Mark Chenoweth: Well, they were selling beepers for other reasons in New York long past what the rest of the world was.

Mark Chenoweth: Without a warrant.

Andreia Trifoi: Without a warrant, yes. And –

Mark Chenoweth: So, they didn’t reach the other issue because they found the trespass, right?

Andreia Trifoi: The majority opinion did not reach the other issue. However, Justice Sotomayor and Justice Alito –

Mark Chenoweth: Interesting combination.

Andreia Trifoi: Very interesting combination. And they took a different approach. And they took the privacy case approach, and that’s the test articulated in Katz v. United States, and they said that the GPS technology is more than just a trespass. It allows the government to see into kind of the privacies of life. So, Justice Sotomayor hit on well, the GPS can be used to follow a person into a house of worship and to medical facility, a protest, and things like that.

And Justice Alito and Justice Sotomayor’s concurrences became the halting of the Court in Carpenter. So, Carpenter held that an individual has a reasonable expectation of privacy in the whole of their movements. And so, that is what we argue here is that: our clients have a reasonable expectation of privacy in the whole of their movements, and the city’s aggregation of their location data through ALPRs violates that reasonable expectation.

John Vecchione: Yeah. And the storage for so many years. Because then you’ve created a database that you can search forever. And I think, I hope –

Mark Chenoweth: Or at least for three years.

John Vecchione: Yeah. But, yeah, that’s true. But they don’t say that they destroy it in three years. We haven’t gotten any discovery, so we don’t even know. It could be – they say at least.

Mark Chenoweth: Well, even if the city destroys it, we’ve seen in other cases that the city sells this data to the DEA, for example, other federal agencies, FBI, they also, in some cases, we’ve seen, they give it – the company that makes these ALPRs, they’ll give the information to that. That company will then aggregate that data with all of its other camera data from other providers and other cities. Talk about getting a picture of where you travel. It’s not limited to just this one thing. But this is an integral piece of the picture for those residents of Marco Island.

Andreia Trifoi: Exactly.

John Vecchione: And I think the way we put it in this brief is that it’s a difference between being occasionally seen and being followed. Right? And so, you’re being watched all the time, and because the technology becomes so cheap and so prevalent, that it can’t really be compared to the policeman following a suspicious person. Because, you know.

Mark Chenoweth: Well, first of all, there’s no suspicion here.

John Vecchione: Right. It’s true. None. So, in any event, so this – what circuit are we going to?

Andreia Trifoi: Eleventh Circuit.

John Vecchione: Yeah. And I noticed that the government has already asked for an extension, and I don’t mind too much. It is the Christmas season. But we got this in, and they immediately asked for an extension. But I did note Orin Kerr, we put it on Twitter, and Orin Kerr has commented on it already. And –

Mark Chenoweth: And who is that, John? For our listeners.

John Vecchione: He is a professor, an expert on the Fourth Amendment. And we cite him twice in this brief. And he –

Mark Chenoweth: That might be why he mentioned it, John.

John Vecchione: That is exactly why. I told him, I said, “Look, we – against my better judgment, we’ve cited you twice.” He said, “Oh, good.” So, he sent out. But what he did note was is that Carpenter he raises this issue of how much following around do you need for the Fourth Amendment violation? And none of the circuits have yet addressed the APLR issue and said that it is the Carpenter situation. So, hopefully this will be that case.

Mark Chenoweth: Well, there’s this question of the moving vehicle that’s being tracked versus the fixed cameras that are only tracking a vehicle when it hits certain spots. But I don’t think that’s the key difference. To me, the difference is with the mobile ALPRs, for example, that are mounted on the squad car, I think of that as like a really smart guy riding shotgun, right? Where the camera is seeing all these license plates, it’s in real time, not putting it into a database, but checking those plates against an existing database of crimes, right?

Of stolen vehicles, of be on the lookout, etc. That’s fine, I don’t have a problem with that. That’s just checking because you have suspicious – you have reasonable cause to pull somebody over if you get a hit on that database. But these fixed ones that just throw out a dragnet and get everybody’s data, and they’re like, “Well, we’ll look at it later if there happens to be a crime.” Well, I’m sorry, that is an unlawful search under the Fourth Amendment.

You are collecting all of this data against people who there is no suspicion against. There’s no reason to believe that they’re going to commit a crime. You’re not even doing it right after a crime. It’s not like they turn them on right after there’s been a crime reported or something, so they can gather. These are running all of the time, and I just, I think it’s undoubtedly a violation of your right to privacy.

Andreia Trifoi: Exactly. And that’s something we raise in our brief is that all of the – there are very few, there are no circuit courts that have addressed the constitutionality of ALPRs as here. But all of the cases that the city relied on and the district court relied on they’re all criminal cases in which you had that suspicion before you accessed ALPR records.

John Vecchione: They’re suppression cases by and large, right?

Andreia Trifoi: Yeah, they’re suppression cases.

Mark Chenoweth: Suppression of evidence, yeah.

Andreia Trifoi: Interestingly, if you read those opinions, pretty much all of them say, “Well, this is limited to the facts of this case, and we caution against the dragnet type of surveillance with ALPRs.” But that’s not our case here. So, it’s very limited to the facts. So, it’s interesting that this is –

John Vecchione: That it hasn’t come up there before. So, we’ll be watching this case, and we will – I don’t know when – we don’t have an argument date, and we don’t exactly know when they’ll take it. And I have to say, we’ve been waiting on the Eleventh Circuit for two years in another matter.

Mark Chenoweth: Hopefully, we don’t get the same panel, John.

John Vecchione: Hopefully, yeah. No, hopefully not. But anyways, Andreia, thank you for coming, and congratulations on your first appellate brief.

Andreia Trifoi: Thank you, very exciting.

John Vecchione: We will see you next time on Unwritten Law.

[End of Audio]

Duration: 15 minutes