United States v. Curtis Ellison

Appellant United States appeals from a district court order granting defendant-appellee Curtis Ellison's motion to suppress. Because we conclude that the district court erred in its Fourth Amendment analysis, we vacate the order granting the motion to suppress and remand for further proceedings.

The central issue in this case is whether the Fourth Amendment is implicated when a police officer investigates an automobile license plate number using a law enforcement computer database. While on routine patrol, Officer Mark Keeley of the Farmington Hills (Michigan) Police Department pulled into a two-lane service drive adjacent to a shopping center. Keeley testified that a white van, with a male driver inside, was idling in the lane closest to the stores, in an area marked with "Fire Lane" and "No Parking" signs. Keeley did not issue the van a citation for being illegally parked, nor did he request that the driver move the van. Rather, he moved into a parking spot to observe the van and entered the vehicle's license plate number into his patrol car's Law Enforcement Information Network ("LEIN") computer. The LEIN search revealed that the vehicle was registered to Curtis Ellison, who had an outstanding felony warrant. Following standard procedure, Keeley radioed for back-up and continued observing the van. After two minutes, another male got into the van, and it drove away. Officer Keeley followed the van until his back-up was nearby, and then activated his lights and stopped the van.

Officer Keeley approached the driver's-side window as his back-up arrived. He advised the driver that he was being stopped for parking in a fire lane and asked for license, registration and proof of insurance. The driver, identified as Edward Coleman, stated that he had only stopped in front of the store to wait for the passenger. At this time the passenger stated that he was the registered owner of the vehicle. Keeley verified the passenger's identity as Curtis Ellison and moved to the passenger side of the van. Keeley notified Ellison that he was being arrested on the outstanding warrant. Ellison stepped out of the van, and during the routine safety pat-down, two firearms were found. Coleman was released with a warning about parking in a fire lane.

Ellison was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Prior to trial, he made a timely motion to suppress the firearm as the fruit of an illegal search. After holding a hearing, the district court made a factual finding that the van was not parked illegally, and thus, the officer did not have probable cause to run the LEIN check of Ellison's license plate. The court issued a Memorandum Opinion and Order granting the motion to suppress under the "fruit of the poisonous tree" doctrine.

The government filed a timely appeal. This court has jurisdiction to hear the government's appeal from an order granting a motion to suppress evidence under 18 U.S.C. § 3731, as the government has certified that the appeal is not taken for the purposes of delay and that the evidence is a substantial proof of a fact material to the proceeding.

This court reviews a district court's decision on a motion to suppress evidence under a dual standard. United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999). Factual findings are reviewed for "clear error" and will only be set aside when the reviewing court "is left with the definite and firm conviction that a mistake has been committed." Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir.1999) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). As the government does not challenge the district court's finding that the van was not parked illegally, this appeal does not implicate any factual findings. Rather, it concerns only legal conclusions, which are reviewed de novo. Hill, 195 F.3d at 264.

The government argues on appeal that Ellison had no reasonable expectation of privacy in the information contained on his license plate, and thus, no probable cause was required for Officer Keeley to run the LEIN check. Ellison contends that the government waived this argument by not raising it in the district court. It is true that the government based its oral argument in the district court on the fact that the van was parked illegally, without addressing the specific interaction between license plate information and the Fourth Amendment.1 However, defendant's motion to suppress did not allege or argue a reasonable expectation of privacy. In fact, neither party made any argument in the district court regarding the expectation of privacy in a license plate. The discussion at the suppression hearing focused instead on probable cause — whether the van was parked illegally.

Although the district court did not expressly state that Ellison had a reasonable expectation of privacy in the information contained on his license plate, such a conclusion was necessarily implied by the court's ruling that a Fourth Amendment violation occurred. "[T]he State's intrusion into a particular area . . . cannot result in a Fourth Amendment violation unless the area is one in which there is a `constitutionally protected reasonable expectation of privacy.'" New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). Thus, the district court could only find that the LEIN search violated the Fourth Amendment if it first concluded that Ellison had a `constitutionally protected reasonable expectation of privacy' in his license plate number.

Ellison correctly notes the long-standing rule that this court generally will not consider an argument not raised in the district court and presented for the first time on appeal. See, e.g., Foster v. Barilow, 6 F.3d 405, 408 (6th Cir.1993); United States v. Ovalle, 136 F.3d 1092, 1108 n. 17 (6th Cir.1998). An exception can be made, however, for "exceptional cases" or if failing to consider the argument would result in a "plain miscarriage of justice." Pinney Dock and Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir.1988); In re Hood, 319 F.3d 755, 760 (6th Cir. 2003), aff'd sub nom. Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 124 S.Ct. 1905, 158 L.Ed.2d 764 (2004). This is such an exceptional case. The question — whether a motorist has a privacy interest in his license plate — is a purely legal one.2 As the parties have fully briefed the issue, it is "presented with sufficient clarity and completeness" to ensure a proper resolution. Pinney Dock, 838 F.2d at 1461. It requires no further development of the record at the district court level, and thus, Ellison will not be prejudiced by the inability to present evidence to that court. On the other hand, failing to consider the issue would result in a plain miscarriage of justice — namely, allowing a conclusion of law to stand that is clearly in error. Based on these factors, we consider the government's argument that the LEIN investigation of Ellison's license plate does not implicate the Fourth Amendment.

This court has not previously addressed in a published opinion the question of whether an individual has a reasonable expectation of privacy in his license plate. In two unpublished decisions, however, this court has agreed with the other circuits that have decided this issue by holding that no such privacy interest exists. The reasoning of these opinions, as well as that of the Supreme Court in related cases, leads us to agree that a motorist has no reasonable expectation of privacy in the information contained on his license plate under the Fourth Amendment.

A tenet of constitutional jurisprudence is that the Fourth Amendment protects only what an individual seeks to keep private. Katz, 389 U.S. at 351-52, 88 S.Ct. 507. "What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." Id. at 351, 88 S.Ct. 507. It is also settled that "objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure ...." Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Following this reasoning, the Court held that an automobile's Vehicle Identification Number, located inside the passenger compartment, but visible from outside the car, does not receive Fourth Amendment protection:

[I]t is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile. The VIN's mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment. The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a "search."

Class, 475 U.S. at 114, 106 S.Ct. 960. Logically, this reasoning extends to a legally-required identifier located outside the vehicle.

No argument can be made that a motorist seeks to keep the information on his license plate private. The very purpose of a license plate number, like that of a Vehicle Identification Number, is to provide identifying information to law enforcement officials and others. The reasoning in Class vis-a-vis Vehicle Identification Numbers applies with equal force to license plates: "[B]ecause of the important role played by the [license plate] in the pervasive governmental regulation of the automobile and the efforts by the Federal Government to ensure that the [license plate] is placed in plain view," a motorist can have no reasonable expectation of privacy in the information contained on it. 475 U.S. at 114, 106 S.Ct. 960 (discussing Vehicle Identification Numbers).

The dissent implies that even if an individual has no expectation of privacy in a license plate number, a privacy interest is somehow created by the entry of this information into a law-enforcement computer database. This argument flies in the face of established Fourth Amendment doctrine. First, despite the dissent's concerns over the information available in a LEIN search, Ellison had no privacy interest in the information retrieved by Officer Keely. The obvious purpose of maintaining law enforcement databases is to make information, such as the existence of outstanding warrants, readily available to officers carrying out legitimate law enforcement duties. The dissent fails to state how using a license plate number — in which there is no expectation of privacy — to retrieve other non-private information somehow creates a "search" for the purposes of the Fourth Amendment.3 Moreover, the computer investigation utilized in this case was far less invasive than other government actions that fall outside the protections of the Fourth Amendment. See, e.g., Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (entering private property with "No Trespassing" signs to observe marijuana plants in an "open field" not visible from outside the property); Dow Chemical Co. v. United States, 476 U.S. 227, 239, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986) (photographing an industrial complex with a precision aerial mapping camera); California v. Ciraolo, 476 U.S. 207, 213-14, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (using aerial surveillance in public airspace to observe the curtilage of a private residence); Smith v. Maryland, 442 U.S. 735, 745-46, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (placing a pen register on a phone line to record the numbers dialed from a private residence). This is not a case where the police used a technology not available to the public to discover evidence that could not otherwise be obtained without "intrusion into a constitutionally-protected area." Kyllo v. United States, 533 U.S. 27, 34-35, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (holding that the use of thermal-imaging technology to detect heat inside a private home violates the Fourth Amendment). The technology used in this case does not allow officers to access any previously-unobtainable information; it simply allows them to access information more quickly. As the information was obtained without intruding upon a constitutionally-protected area, there was no "search" for Fourth Amendment purposes.

Every court that has addressed this issue has reached the same conclusion. The Tenth Circuit has held on two occasions that license plates are "in plain view on the outside of the car" and thus, are "subject to seizure" because there is no reasonable expectation of privacy. United States v. Matthews, 615 F.2d 1279, 1285 (10th Cir. 1980); see also United States v. Walraven, 892 F.2d 972, 974 (10th Cir.1989). The Fifth Circuit has also held that "[a] motorist has no privacy interest in her license plate number." Olabisiomotosho v. City of Houston, 185 F.3d 521, 529 (5th Cir.1999); accord United States v. Sparks, 37 Fed. Appx. 826, 829 (8th Cir.2002); Hallstein v. City of Hermosa Beach, 87 Fed.Appx. 17, 19 (9th Cir.2003). The only two panels of this court to address the question have reached the same result. United States v. $14,000.00 in U.S. Currency, No. 98-4380, 2000 WL 222587, at *3 (6th Cir. Feb.14, 2000) (finding no Fourth Amendment violation in a computer check of a license plate); United States v. Batten, 73 Fed. Appx. 831, 832 (6th Cir.2003) (same). As one panel wrote, "[T]here is no case law indicating that there can be any reasonable expectation of privacy in license plates which are required by law to be displayed in public on the front and rear of any vehicle on a public street." Batten, 73 Fed.Appx. at 832; see also Wayne R. LaFave, 1 Search & Seizure § 2.5(b) (4th ed. 2004) ("[I]t is apparent that when a vehicle is parked on the street or in a lot or at some other location where it is readily subject to observation by members of the public, it is no search for the police to look at the exterior of the vehicle.") (citing Katz and Olabisiomotosho).

Thus, so long as the officer had a right to be in a position to observe the defendant's license plate, any such observation and corresponding use of the information on the plate does not violate the Fourth Amendment. In this case, Officer Keeley had a right to be in the parking lot observing the van — he was in a public place conducting a routine patrol. The district court's finding that the van was not parked illegally is thus irrelevant — such a finding goes only to probable cause, which is not necessary absent a Fourth Amendment privacy interest.4 Once Officer Keeley conducted the check and discovered the outstanding warrant, he then had probable cause to pull over the vehicle and arrest the man identified as Ellison. The arrest and resulting search during which the handguns were found in no way violated the Fourth Amendment, and the district court's order granting the motion to suppress was in error.

For the foregoing reasons, we vacate the order granting the motion to suppress and remand the case to the district court for further proceedings consistent with this opinion.

KAREN NELSON MOORE, Circuit Judge, dissenting.

The majority's decision is a textbook example of a court reaching to resolve an issue that is not properly before it. The majority opinion highlights how a court can undermine just results by choosing to address an argument — that an officer can run a license plate number through a computer database search without any heightened suspicion — despite its being raised for the first time on appeal without the legal or factual development necessary to resolve the issue. Because I believe that we cannot consider this matter on a ground raised by the government for the first time here on appeal without contravening this court's longstanding precedent, I respectfully dissent. I also write to express my concerns regarding the majority's conclusory gloss on the Fourth Amendment issues implicated by the license-plate database search and my disagreement with the majority's analysis of the equal protection claim.

On December 31, 2003, Officer Mark Keeley ("Keeley") of the Farmington (Michigan) Police stopped Curtis Ellison's vehicle, in which Ellison was riding as a passenger. During this stop, firearms were found on Ellison, and he was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Ellison moved to suppress the firearms evidence, claiming that the circumstances of the stop violated the Fourth Amendment. The government claimed that there was probable cause for the stop because the driver of the vehicle, Edward Coleman ("Coleman"), had committed a parking violation. After a suppression hearing, the district court ruled that Coleman had not committed a parking violation, and thus that the evidence should be suppressed as the fruit of an illegal stop. On appeal, the government abandoned its argument that there was probable cause to stop the vehicle based upon a parking infraction. Instead, the government argues, for the first time, that the license-plate database search conducted from the officer's car did not implicate the Fourth Amendment and thus that the stop was independently justified by the information regarding Ellison's outstanding felony warrant that was discovered through the license-plate search. I will refer to this newly minted Fourth Amendment argument as the "license-plate search argument."

A. Consideration of an Argument Raised for the First Time on Appeal

The majority's reaching out to decide this Fourth Amendment question on a basis that the government failed to raise below contradicts legal authority, the interests of justice, and the principle of judicial restraint. Relying on Pinney Dock, the majority decides that the government's argument warrants an exception to the general rule that arguments not raised below will not be considered on the grounds that it raises a purely legal issue that has been "`presented with sufficient clarity and completeness' to ensure a proper resolution" and that "failing to consider the issue would result in a plain miscarriage of justice." Majority Opinion ("Maj. Op.") at 560 (quoting Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir.1988)). However, the majority's conclusion misconceives the governing precedent and the nature of the issue before us.

First, in its attempt to fit the license-plate search argument within the parameters of the Pinney Dock exception, the majority misapplies Pinney Dock. Pinney Dock held that this court generally will not consider issues not addressed below, except for "`exceptional cases or particular circumstances,'" or when adherence to the rule would result in "`a plain miscarriage of justice.'" 838 F.2d at 1461 (quoting Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941)) (emphasis added). In Pinney Dock, we decided to address the new issue for two reasons: (1) because it was "presented with sufficient clarity and completeness," and (2) because "its resolution w[ould] materially advance the progress of this already protracted litigation." 838 F.2d at 1461. Neither of these conditions applies to the government's license-plate search argument. Based on the majority's incomplete view of how the license-plate search implicates the Fourth Amendment, its cursory conclusion that this is a pure legal issue "`presented with sufficient clarity and completeness,'" Maj. Op. at 561 (quoting Pinney Dock, 838 F.2d at 1461), may appear correct at first blush. However, once the issue is framed accurately, that is, as a question of not just the plain view of the license plate but also the Fourth Amendment implications of conducting a subsequent search with the license-plate information on the computerized Law Enforcement Information Network ("LEIN"),1 it becomes clear that there are a multitude of fact questions that are essential to the resolution of this issue. For example, to assess properly the Fourth Amendment concerns raised by the use of the LEIN system, any court would need to know what type of information is available on the system; how this information is obtained; who can access the information; what safeguards, if any, are in place to prevent unauthorized access to the information; whether this information was available to police prior to the advent of the mobile data terminal ("MDT")2; what the typical police practice is regarding the use of such searches; whether there are any procedures in place to guard against arbitrary searches; what options are available to regulate the use of the technology; what the government's interests are in conducting license-plate searches; what alternative practices could be used to achieve the same ends; the error rates associated with the use of the MDT technology; what practices, if any, are in place to ensure reliability and guard against errors; and the implications that such technology has for racial profiling. There is little to no information in the record on these topics,3 nor did the parties brief the issue with these concerns in mind, and thus the court is ill-equipped to address the government's newly raised license-plate search argument. That answers to these factual questions are essential to addressing the Fourth Amendment issues implicated by the license-plate search becomes even more clear in the later discussion of the legal and factual assumptions the majority makes regarding the information available from the LEIN search.

Finally, the majority's assertion that "failing to consider the issue would result in a plain miscarriage of justice" because it would "allow[] a conclusion of law to stand that is clearly in error" is also misconceived. Maj. Op. at 561. Because this issue was not raised below, the district court merely stated in passing, without any detailed discussion or analysis, that the use of the LEIN search was improper because Ellison's van was not actually parked illegally. Dist. Ct. Op. at 8. Because both parties assumed that the LEIN check constituted a search for Fourth Amendment purposes, the district court had no occasion to consider the Fourth Amendment issues raised by the LEIN search, and thus its statement cannot be considered a legal conclusion on the matter. Rather, the statement simply highlights that the district court also adopted the parties' assumption, which the court needed to do to address the narrow issue before it, i.e., whether a parking violation had occurred. Therefore, no "plain miscarriage of justice," would result from us declining to address this issue. See United States v. Brignoni-Ponce, 422 U.S. 873, 886 n. 11, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (refusing to address "after-the-fact justification" for a search that was not clearly raised below). Despite having the opportunity to respond to this point, the majority makes no attempt to clarify its argument and merely clings to the unfounded assertion that an erroneous legal conclusion would stand were this court not to address the license-plate search argument. Given that no erroneous legal conclusion would be left standing were this court to decline to consider the license-plate search argument presented initially to us by the government, it would be a greater "miscarriage of justice" for this court to address this issue prematurely, without the legal and factual development necessary to resolve it. The majority's willingness to consider the license-plate search argument without fully contemplating the legal and factual questions it raises emphasizes the gaps in the majority's reasoning and the reach of its approach.

Although I believe that the government's license-plate search argument is not properly before this court and thus should not be considered, the majority's decision compels me to highlight the shortcomings of its woefully incomplete Fourth Amendment analysis. The majority rests its conclusion that the Fourth Amendment was not implicated by the LEIN search on the relatively uncontroversial fact that the operator of a vehicle has no privacy interest in the particular combination of letters and numerals that make up his license-plate number, but pays short shrift to the crucial issue of how the license-plate information is used. Based on this half-conceived understanding of the issues presented by the LEIN search, the majority then unconvincingly pins its conclusion on New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), which deals only with the physical search of the interior of a car to determine a VIN number and does not address the issue of the use of such a number to ascertain other information associated with the vehicle or its operator.4 This approach misses the crux of the issue before the court: even if there is no privacy interest in the license-plate number per se, can the police, without any measure of heightened suspicion or other constraint on their discretion, conduct a search using the license-plate number to access information about the vehicle and its operator that may not otherwise be public or accessible by the police without heightened suspicion?

Although neither the posture of this issue nor the record before us allows for consideration of the Fourth Amendment implications raised by the LEIN search, it is worthwhile to spell out some of the Fourth Amendment concerns that the use of such technology raises, as no court of appeals has yet done so. The use of a computer database to acquire information about drivers through their license-plate numbers without any heightened suspicion is in tension with many of the Fourth Amendment concerns expressed in Delaware v. Prouse, 440 U.S. 648, 655-63, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (cited with approval in Whren v. United States, 517 U.S. 806, 817-18, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). In Prouse, the Supreme Court held that an officer may not stop a vehicle to check the operator's license and registration without "at least articulable and 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," despite the fact that the state requires drivers to be licensed and vehicles to be registered. 440 U.S. at 663, 99 S.Ct. 1391. The Court stated that the Fourth Amendment aims "to safeguard the privacy and security of individuals against arbitrary invasions.... Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."5 Id. at 654,