If police find incriminating evidence against you in the course of an identity check, are they entitled to make an arrest?
Police now have access to a broad expanse of databases detailing information on individuals, but there are few limitations on how they can obtain or use this information, according to a forthcoming study in the Iowa Law Review.
The study, by Florida State University-College of Law professor Wayne A. Logan, warns that even as technology has rapidly increased police capabilities of discovering personal information about suspects, such as the usage of “remote biometric identifiers” which allow people to be identified without physical seizures or demands for identification, Constitutional protections against unreasonable search and seizure or from self-incrimination have not been broadened to cover them,
“Taken together, the proliferation of databases, their inter-operability, and the ease with which information can be retrieved from them (by computer laptops, tablets and handheld devices),has fostered a revolution in policing akin to that of the introduction of patrol cars and two-radios,” the study said.
“As two policing scholars [Stephen Mastrofiski and James Willis] recently put it, officers today engage in ‘database policing’ in the search of ‘hits.’ ”
The study notes that so far the Supreme Court has provided scant protection. Citing Utah v. Strieff, a 2016 ruling upholding law enforcement’s right to use personal identity data that provides information about a previous criminal offense, even when a suspect has been stopped and questioned unlawfully.
In Strieff, a Salt Lake City police officer unlawfully seized Edward Strieff outside a house after receiving a tip that drug dealing was going on there. On checking his identity, in a government database, the officer discovered Strieff was the subject of a “minor traffic warrant.” He then arrested Strieff and searched him, finding drug paraphernalia and methamphetamine. The court validated the search, saying the traffic warrant was an “intervening circumstance.”
Officers around the country have come to rely on this wealth of identity-related information in databases to make arrests, the study said.
In Chicago, officers can access a “Strategic Subject List” and a “Heat List” which assesses individuals who are likely to be involved in future crimes. New York City has a “Domain Awareness System” which aggregates information from sources like video surveillance tapes, license plates, and arrest records.
Having access to these types of information is especially harmful if police obtain a person’s identity unlawfully, as Logan argues was the case in Utah v. Strieff.
“Properly viewed, identity information is an evidentiary fruit that should be subject to suppression when it is unlawfully secured by police,” said the study.
“Without it, information associated with an individual lies inert in government databases; with it, police can stop, arrest, search and question individuals they encounter on street patrol.”
Logan argued that the most serious danger is that the information collected in personal databases could be incorrect or wrongly interpreted.
“One might argue….that wrongdoing is wrongdoing and any violation of law should preclude grousing about negative consequences,” he wrote.
But quoting one scholar as saying, “[t]he consequences of arrests simply cannot be waved away on the ground that they are deserved,” Logan pointed out that “failure to appear is often the result of innocent mistake, such as being unware of, or forgetting the date for, a court appearance, or is excusable, due to illness, inability to leave work, child care responsibilities, or unforeseen personal emergencies.”.
“It can also be the case that significant court costs, system fees, and fines, deter individuals from appearing,” he continued.
The full report, entitled “Policing Police Access to Criminal Justice Data,” can be downloaded here.
This summary was prepared by TCR news intern Marianne Dodson. Readers’ comments are welcome.