The Expired License, the NSA and the 4th Amendment

After Daniel Folkman was charged with one count of operating a motor vehicle while intoxicated in violation of Wisconsin Statutes § 346.63(1)(a) and one count of operating a motor vehicle with prohibited alcohol concentration in violation of Wisconsin Statutes § 346.63(1)(b), he moved to suppress certain evidence.  State v. Folkman, 2013 WL 6598725 (Wisconsin Court of Appeals 2013).

When the trial judge denied his motion, Folkman entered a plea of no contest to the charge of operating a motor vehicle while intoxicated and was found guilty. State v. Folkman, supra.  Folkman appealed.  State v. Folkman, supra.  The opinion does not say what, if any, penalty the judge imposed, but this site outlines the possibilities.

This, according to the brief Folkman filed on appeal, is how the case arose:

In the early morning hours of May 27, 2012. Shawano Sheriff Deputy B. Klenke was on patrol in the Village of Cecil. . . . At approximately 2:30 AM, Klenke observed a vehicle traveling northbound on N. Warrington Ave., approaching State Highway 22. . . . Klenke did not see anything unusual about the vehicle: for example, [it] was not speeding, nor was it going too slow, it was traveling within its lane boundaries without problem and all of the vehicle's running lights were operating normally. . . .

Nevertheless, after Klenke observed the vehicle's front license plate, he ran the vehicle's registration through the eTime system: the system returned a match for the same vehicle. . . . After doing that, Klenke decided to run the registered owner of the vehicle, who was . . . Folkman. . . . Klenke learned upon running Daniel’s registration check that his driver's license had been expired for about four months. . . .

Upon learning of Daniel's expired status. Klenke turned his vehicle around, activated his emergency lights and initiated a traffic stop. . . . Klenke made contact with Daniel, who was the driver of the vehicle, and after obtaining information that lead [him] to believe Daniel was impaired arrested him for suspicion of Operating While Intoxicated. . . .

Defendant-Appellant’s Brief, State v. Folkman, 2013 WL 5676409 (Wisconsin Court of Appeals 2013).

This is how the prosecution’s brief on appeal explains how the prosecution arose:

On May 27, 2012, at approximately 0230 Shawano County Deputy Ben Klenke was on patrol in the Village of Cecil in Shawano County when he observed a vehicle northbound on North Warrington Avenue approaching Hwy 22. . . . He observed the vehicle's front registration plate as Wisconsin auto 606CCT. Klenke then ran the vehicle's registration through eTime and the return matched the vehicle he saw. . . .

Klenke then ran the registered owner of the vehicle, Daniel Folkman, through the same eTime System and Folkman had an expired license and it had been expired for approximately four (4) months. . . . Klenke turned around and caught up to the vehicle on CTH H just west of CTH R, activated his emergency red and blue lights and initiated a traffic stop on the vehicle. . . . After notifying dispatch of his location Klenke approached the vehicle and made contact with the driver. . . .

The driver was the only person in the vehicle. . . . Klenke explained why he stopped the vehicle and asked for a driver's license. . . . The driver admitted he was Daniel Folkman. . . . Klenke . . . then made observations of the driver and after Folkman refused to do Standard Field Sobriety Tests Folkman was placed under arrest for Operating While Intoxicated.

Brief of Plaintiff-Respondent, State v. Folkman, 2013 WL 6077153 (Wisconsin Court of Appeals 2013).

On appeal, Folkman argued that the trial judge erred in denying his motion to suppress.  State v. Folkman, supra.  In his motion, Folkman “conceded Klenke lawfully viewed his license plate number and that, once Klenke knew the vehicle's owner was not validly licensed, Klenke had reasonable suspicion to stop the vehicle.”  State v. Folkman, supra. 

The concession means Folkman was not claiming that Klenke’s looking at and reading his vehicle license plate was a “search” under the 4^th Amendment.  As I have explained in prior posts, the 4^th Amendment creates a right to be free from unreasonable searches and seizures, and a “search” violates a “reasonable expectation of privacy” under the Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967).  So Folkman was not claiming he had a reasonable expectation of privacy in his license plate, which would not have been a viable argument; under Katz, he forfeited any expectation of privacy in the plate by “knowingly exposing” it to public view.  

By conceding that Klenke had “reasonable suspicion” to stop his vehicle, Folkman was not claiming the “stop” of him and his vehicle was an “unreasonable” seizure in violation of the 4^th Amendment’s ban on unreasonable searches and seizures.  As Wikpedia notes, a traffic stop is a 4^th Amendment “seizure” of a person because it interferes with the person’s freedom of movement.  As Wikipedia also notes, under the Supreme Court’s decision in Delaware v. Prouse, 440 U.S. 648 (1979), 

an officer has made an illegal seizure when he stops an automobile and detains the driver in order to check his driver's license and the registration of the automobile, unless the officer has articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or either the vehicle or an occupant is otherwise subject to seizure for violation of law.

Here, Folkman claimed Klenke’s stopping him and his vehicle “was unlawful because Klenke needed, but did not have, `some exigent circumstance’ in order to begin querying registration and driver's license information on the eTime system.”  State v. Folkman, supra.  In other words, Folkman claimed Klenke’s running checks on his registration and license information was a 4^th Amendment “search”, and for such a search to be “reasonable” Klente had to either have a search warrant (which he did not ) or his actions had to be authorized by an exception to the 4^th Amendment’s default requirement that searches be justified by a warrant.  Folkman claimed (i) the exigent circumstance exception did not apply here and (ii) because it did not apply Klente’s actions violated the 4^th Amendment. State v. Folkman, supra.

The judge denied Folkman’s motion to suppress because he found the issue presented was

`whether the running of . . . registration information . . . violate[s] any type of 4th Amendment issues.’ The court stated to answer that question it needed to determine whether there is `a reasonable privacy expectation that individuals, including law enforcement officers, will not be able to check the registration[.]’ The court concluded individuals do not have a reasonable expectation of privacy in registration or license information. It reasoned, `when you have your plate, it's made visible’ and must remain visible per law. The court explained a license plate is required to be visible so that

`officers can see your plate. Also, you have to register your vehicle with the State. Everyone knows that it is subject to check. It can be checked by law enforcement. So I don't think that anyone has a reasonable expectation of privacy that an officer will not run that plate. So, I do believe that an officer can legally, under ... our State law and under the U.S. Constitution, . . . run a license check on your vehicle without having probable cause that a crime was committed.’

State v. Folkman, supra.

On appeal, Folkman did not “directly address the circuit court's conclusion that he lacked a reasonable expectation of privacy in his registration and license information on the eTime system.” State v. Folkman, supra. Instead, he repeated the argument noted above, i.e., that “Klenke needed `exigent circumstances’ before he could query information about Folkman's registration and license.” State v. Folkman, supra.

In making that argument, Folkman relied on two cases, the first of which was the Supreme Court’s decision in Delaware v. Prouse, supra.  In Prouse, the Court held that unless an officer has “reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law,” it is a violation of the 4^th Amendment for the officer to stop the vehicle and detain “in order to check his driver's license and the registration of the automobile”.  State v. Folkman, supra. 

He also relied on the Wisconsin Supreme Court’s decision in State v. Lord, 297 Wis.2d 592, 723 N.W.2d 425 (2006), in which that court held that it violates the 4^th Amendment for an officer to stop a vehicle and detain a driver “without probable cause or reasonable suspicion simply to check the registration and license information.”  State v. Folkman, supra.  More precisely, Folkman argued that

`[t]he only difference between the facts in Lord and the instant case is that the officer physically stopped Lord's car to check his vehicle registration because Lord was displaying temporary plates that could not be checked through the eTime system.’ 

He contends, `carrying the holding of Lord to its logical conclusion, since Klenke had no knowledge of any other independent exigent circumstances regarding [Folkman] or his vehicle, his running the vehicle's license plate was unreasonable, . . .a violation of [Folkman's] 4th Amendment right against unreasonable search[es] and seizure[s].’

State v. Folkman, supra. 

The Court of Appeals did not agree, noting there is “a considerable difference” between an

officer stopping, or seizing, a vehicle to check the registration and license information and an officer running registration and license queries in a law enforcement database. In the former situation, it is well-established that an individual possesses `a reasonable expectation of privacy, under the 4th Amendment . . . to travel free of any unreasonable governmental intrusion.’ State v. Harris, 206 Wis.2d 243, 557 N.W.2d 245 (Wisconsin Supreme Court 1996).

Because individuals have a reasonable expectation of privacy to travel free from government intrusion, any intrusion on an individual's travel must be reasonable to be constitutional. See State v. Popke, 317 Wis.2d 118, 765 N.W.2d 569 (Wisconsin Supreme Court 2009). `A traffic stop is generally reasonable if the officers have probable cause to believe that a traffic violation has occurred, . . . or have grounds to reasonably suspect a violation has been or will be committed.’ State v. Popke, supra.

State v. Folkman, supra. 

The court therefore noted that “[n]either Prouse nor Lord establish Folkman has a reasonable expectation of privacy in his registration and driver's license information.”  State v. Folkman, supra.  As I noted earlier, if he did not have such an expectation of privacy in that information, it was not a 4^th Amendment “search” for Klente to run a check on either or both, which meant Klente did not need either reasonable suspicion or probable cause or a warrant or an exception to the warrant requirement in order to do so without violating the 4th Amendment. 

Folkman had one final argument on that issue. As the Court of Appeals noted

[he] argues . . . that he has an expectation of privacy in the information because it is `inaccessible to civilians, and is only usable by government officers in the exercise of their police powers[.]’

He then likens the State's collection of registration and driver's license information to the National Security Agency's purported `hacking’ and collection of personal emails and telephone conversations. He asserts that, because the federal government has stated it will only examine the information it collected if it has a valid reason to do so, it must follow that `Klenke had every right to access the eTime system so long as he has a valid reason for doing so.’

State v. Folkman, supra. 

Once again, the Court of Appeals did not agree, explaining that Folkman’s argument

fails to establish he has a reasonable expectation of privacy in his registration and license information. As previously stated, an individual has a reasonable expectation of privacy if the individual has a subjective expectation of privacy that society recognizes as reasonable. . . .

That individuals have an expectation of privacy in personal emails and telephone conversations that were collected through `hacking’ does not mean individuals have the same expectation of privacy in vehicle registration and licensing information, which, as the circuit court observed, is information that individuals are required to submit to the state.

State v. Folkman, supra. 

It held, therefore, that Folkman

has the burden of proving by a preponderance of the evidence that he has a reasonable expectation of privacy in the information. . . . Because he failed to establish he has a reasonable expectation of privacy in the information, Folkman has not triggered the 4th Amendment's prohibition against unreasonable searches and seizures. . . .

State v. Folkman, supra.  So the court affirmed Folkman’s conviction. State v. Folkman, supra. If you are interested, you can read a little more about the case in the story you can find here, including a statement from Folkman's lawyer, who wants the Wisconsin Supreme Court to hear the case because "police should not be allowed to randomly check license plates without a good reason."