United States of America v. Melisa Susan Kyle

Tulsa, Oklahoma, criminal defense lawyer represents the Defendant charged with possession of methamphetamine with intent to distribute in violation of 21 U.S.C. 841.

Tulsa County Deputy Sheriff Freddie Alaniz investigates crimes on the
highways in and around Tulsa, Oklahoma. He has experience in drug
interdiction, has served as a task force officer with the federal Drug
Enforcement Administration (“DEA”), and he is certified by the Oklahoma
Council on Law Enforcement Education and Training (“CLEET”) as a
narcotics K-9 officer. Alaniz’s patrol vehicle is equipped with exterior cameras
that record the license plate number of cars that pass him. These cameras
feed into larger fixed-position camera networks that automatically capture
and log license plate numbers along with accompanying information like the
date, time, and location a license plate is seen by one of the cameras in that
network. This technology is known as Automated License Plate Reader
(“ALPR”) technology. Alaniz has access to at least two ALPR systems, Flock
and VehicleManager. These two systems have different capabilities, but they
serve the same essential function: gathering and organizing historical data
about a vehicle’s whereabouts on public roadways for use by law enforcement
across the country. It is not clear from the record how long such information
is kept, nor is it clear who keeps the information. But at least at the time of
the incident at issue in this case, Alaniz had access to at least 30 days’ worth
of vehicle location information in many states, though he did not have access
to information from California.

One evening while he was on duty, Alaniz parked his patrol vehicle on the
side of the highway to observe traffic passing by. Among other cars, Alaniz
saw a Mazda SUV with a California license plate. The Mazda’s license plate
was picked up by the camera on Alaniz’s car. Alaniz then pulled his vehicle
onto the highway to follow the Mazda for no apparent reason other than the
fact that it had a California license plate. Alaniz also ran a query on the
Flock system for the California license plate number on the Mazda SUV.
Both Flock and VehicleManager provide users an option for the reason the
query is being run. The reasons Alaniz put in those systems for running the
queries were “traffic violation,” and “investigation.” At the time of those
queries, all Alaniz knew was that the vehicle had a California license plate.
After Alaniz ran the ALPR query, he saw that the Mazda made a trip from
Locust Grove, Oklahoma, toward the California/Arizona border area, and was
heading back to the Missouri area after a short trip. Alaniz testified that the
Mazda was in the California area for about one day, but it is somewhat
unclear from the record exactly how long the car was there, especially
considering Alaniz did not have access to Flock data from California. In any
event, the time spent in California was short compared to the time it would
take to drive from Missouri and back. Alaniz’s bodycam captured the result of
Alaniz’s ALPR query:

When Alaniz followed the Mazda, he believed that he observed two main
categories of traffic violations. First, he believed that the Mazda’s driver
failed to signal a lane change at least 100 feet before making a lane change
several times, in violation of 47 O.S. § 11-309. Second, he believed that the
Mazda’s driver followed a vehicle in front more closely than is safe, in
violation of 47 O.S. § 11-310. At least with respect to driving too close to
another vehicle, the driver left only about 30 feet between the two vehicles.
These traffic maneuvers were captured by Alaniz’s dash camera:

After pulling the vehicle over, Alaniz approached the passenger side of the
car to talk with Defendant Melisa Kyle. Upon making contact, Kyle already
had both of the car’s front windows rolled all the way down. The interaction
began with Kyle appearing to explain that her lane change violations were
due to the driving directions on her cell phone. Kyle had also just lit a
cigarette moments before Alaniz reached the vehicle, and Alaniz asked her to
put it out. Kyle complied, and she did so by first sticking the cigarette out of
the driver’s-side window to remove the ash, and then she placed it on her
dashboard. Alaniz asked Kyle for her license, insurance, and registration,
and he informed her that he was not going to write her a ticket. Kyle
informed Alaniz that the vehicle was a rental, and that she had gone to
California for a couple of days. Alaniz then invited Kyle to accompany him to
his patrol car so she could search for the rental information on her phone.
After getting Kyle into the front passenger seat of his patrol vehicle,
Alaniz asked Kyle about her travel plans while he continued to review the
ALPR systems for the car she was driving. There are a few main takeaways
from this part of the conversation between Alaniz and Kyle:

• Kyle went to California for a couple of days.

• Alaniz asked Kyle when she left for California, and Kyle responded
that she had been gone for six days. Kyle further responded that she
only stayed for two nights, and that she had not “seen those people
in years.”

• Kyle explained that when she and her husband separated, she
began moving about the country because she realized she “can
actually go places.”

• Alaniz again asked Kyle about what day she left Missouri for
California, and Kyle responded: “Monday [inaudible] … Tuesday,
no,” and that she did not leave until Wednesday. It is clear from the
context of the conversation that Kyle was talking out loud to
remember which day of the week she left, not that she was changing
her answer.

• Alaniz asked about the amount of luggage she carried for just two
days in California, and Kyle responded that she likes to pick up
clothes for her kids and “just crap, basically.” She explained that she
had to buy a suitcase while “out there” because it would look “silly”
in Walmart bags.

• Alaniz asked Kyle about what she did in California. Kyle responded
that she “went swimming,” which she said she had not done in
years, that she was just “sitting around bullshitting” and “talking
and catching up.” She also mentioned that her cousin had goats and
a farm.

• Alaniz again pressed Kyle about going so far for such a short trip.
Kyle responded that she “hadn’t gotten to go anywhere in years” and
that “the drive was … as fulfilling as … seeing people.” She further
explained that her husband was in the military and gone “all the
freaking time,” and that made her feel like “the dog that got left at
the house.” But because her children were 15 and 17, Kyle explained
that she could go wherever she wanted.

• Alaniz asked Kyle what she did for a living, and Kyle responded that
she buys and sells at garage sales and flea markets.

• Alaniz asked what part of California Kyle went to. She responded
that she stayed in Needles, and then Bullhead City, Arizona. Kyle
explained that she stayed in Needles, but her cousin lived in
Bullhead City. She described it as “around the corner,” and that “one
side’s Needles, and one side’s Bullhead.”

• Alaniz returned Kyle’s driver’s license and gave her a written
warning regarding the traffic violations.

During this portion of the conversation between Alaniz and Kyle while
Alaniz was filling out a traffic warning, another law enforcement officer
approached Alaniz’s vehicle. Alaniz told the other officer, “I think I’m good. I
appreciate ya’.” Based on the context of this interaction, the Court finds that
Alaniz perceived the other officer’s presence as an offer to assist, which he
refused.

Alaniz then completed the stop by returning Kyle’s license to her and
giving her a warning. After that was done, Alaniz asked Kyle if she would
answer some questions, which Kyle agreed to do. Alaniz told Kyle that he
“work[s] criminal interdiction on the highways” and that “we look for uh
people that are uh transporting large amounts of drugs, U.S. currency, guns,
uh human trafficking, identity theft stuff.” He then told Kyle “your short trip
to California I feel like uh—I don’t feel—I know from my training … and my
experience that people who do very short trips to California and come right
back are usually transporting large amounts of drugs.” Alaniz asked Kyle for
consent to search her vehicle, and she denied the request. Immediately after
Kyle refused, Alaniz asked for backup and told Kyle that she was detained so
he could have his dog sniff her car.

While Alaniz explained the next steps, Kyle disclosed that she had some
marijuana in the car. She asked Alaniz if she could give it to him because she
knew that Alaniz’s dog would alert to the marijuana. Alaniz stated, “I am not
worried at all for a little bit of marijuana, that’s not what I’m looking for,” but
he proceeded with detaining Kyle to deploy his dog for a drug sniff. Alaniz
also responded to a radio communication by stating “it’s non-pressing, I’ve
just got a refusal on k9 deployment.”

After Alaniz’s backup officer arrived on the scene, he told him “I asked for
consent to search her car, she … denied, so I’m gonna run my dog.” Alaniz
also told another officer: “Man, she’s nervous as all get out. Super nervous.
She went to California for two days. … Kinda making some stuff up as I’m
asking her where she stayed at. … Has a shit ton of luggage back there for
just two days to California. I asked her for consent. She’s like ‘no I don’t think
so.’ I said OK, well now you’re being detained. … Then suddenly she’s got
weed in the car.” Alaniz’s dog then sniffed the car, alerted, and the officers
conducted a search of the vehicle, which resulted in Kyle’s arrest. While
Alaniz searched Kyle’s vehicle, he told another officer that he “could see her
carotid artery in my car. That thing was about to pop out of her neck,”
meaning that Alaniz perceived Kyle as being nervous.

* * *

* * *

No doubt, ALPR technology comes with remarkable benefits that the
Court cannot ignore. But the Fourth Amendment requires courts to draw a
line when the cost is too great. Alaniz’s search in just the ALPR system
provided him with more than 50 individual records of Kyle’s whereabouts
across the country for an entire month. The Court finds that because the
ALPR systems Alaniz used to search Kyle’s historical location information
intruded on her reasonable expectation of privacy in the whole of her physical
movements, it was a search under the Fourth Amendment. Based on the
information in the record, the only reason Alaniz conducted that search was
because he saw her license plate was from California. That search was not
supported by probable cause, and it was done without a warrant in violation
of Kyle’s Fourth Amendment rights. That search also has a nexus to the
remainder of the traffic stop because Alaniz began following Kyle’s car while
he conducted the ALPR search, which led to the rest of the evidence obtained
during the traffic stop. Because the government does not identify any
adequate exception to the exclusionary rule, all evidence obtained after
Alaniz initiated the ALPR search must be suppressed as fruit of the
poisonous tree.

Motion to supress granted.