Policing Police Access to Criminal Justice Data

Author:Wayne A. Logan
Position:Gary & Sallyn Pajcic Professor of Law, Florida State University College of Law
Pages:619-677
SUMMARY

Today, it is widely recognized that we live in an informationbased society. This is certainly true of police on street patrol, who more than ever before rely on, and enjoy ready access to, information when doing their work. Information in aggregated form, for instance, is used to create algorithms for “hot spot” policing that targets specific areas. Information concerning individuals, however, must somehow be... (see full summary)

 
FREE EXCERPT
619
Policing Police Access to Criminal
Justice Data
Wayne A. Logan*
ABSTRACT: Today, it is widely recognized that we live in an information-
based society. This is certainly true of police on street patrol, who more than ever
before rely on, and enjoy ready access to, information when doing their work.
Information in aggregated form, for instance, is used to create algorithms for
“hot spot” policing that targets specific areas. Information concerning
individuals, however, must somehow be tied to them if it is to be useful. An
arrest warrant in a database, for example, lies inert until an officer associates
it with an individual; so too does information regarding suspected gang
affiliation and the mass of other information contained in databases.
With databases expanding exponentially by the day, and police engaging in
what has come to be known as database policing, in search of “hits,” personal
identity has assumed unprecedented importance. This Article addresses these
developments. Unlike prior scholarship, which has focused mainly on the
collection and use of information regarding individuals, the Article examines
the intermediate step of database policing: the means by which police access
database information. For police, the benefits of such access are as broad as the
expanse of databases on which they have come to rely, which is very broad
indeed.
Databases today include not only arrest warrants, most often for minor offenses,
which police can use for evidentiary “fishing expeditions” when conducting
searches incident to arrest. They also include records of prior stops, arrests, and
convictions, which often reflect racially biased policing practices that are reified
when relied upon by police. Databases even contain personally sensitive
information that, while not incriminating, can be embarrassing for individuals
who are detained. By conceiving of personal identity itself as evidentiary fruit
worthy of constitutional regulation the Article fills a major gap in policing
scholarship, addressing a matter that will only grow in importance as police rely
on databases that are rapidly proliferating in number and kind.
*
Gary & Sallyn Pajcic Professor of Law, Florida State University College of Law. Thanks
to Jeff Bellin, Barry Friedman, Brandon Garrett, Rachel Harmon, Richard Re, Ric Simmons, Chirs
Slobogin, Sam Wiseman, and Ron Wright for their very helpful suggestions.
620 IOWA LAW REVIEW [Vol. 104:619
I.INTRODUCTION ............................................................................. 620
II.POLICE AUTHORITY TO ACCESS DATABASES ................................. 626
A.ATTENUATION DOCTRINE ........................................................ 628
B.THE IDENTITY EXCEPTION ....................................................... 635
C.SUMMARY ............................................................................... 639
III.THE CONSEQUENCES OF POLICE ACCESS ...................................... 640
A.ARREST WARRANTS ................................................................. 640
B.OTHER DATABASES .................................................................. 645
1.Stop, Arrest, and Conviction Records .......................... 645
2.Biometric Data ............................................................... 649
3.Unlawfully Secured Evidence ....................................... 651
4.Sensitive Personal Information .................................... 653
C.IMPLICATIONS ......................................................................... 655
IV.SKETCHING THE PATH AHEAD ...................................................... 661
A.CLEARING AWAY THE DOCTRINAL UNDERBRUSH ....................... 661
B.DOCTRINAL PATHS .................................................................. 664
1.Fourth Amendment ...................................................... 664
2.Fifth Amendment .......................................................... 669
3.Remedy .......................................................................... 671
C.STATUTORY FIX ....................................................................... 673
V.CONCLUSION ................................................................................ 676
I. INTRODUCTION
“What’s in a name? That which we call a rose
By any other name would smell as sweet . . . .”1
While the Immortal Bard today justly remains one of history’s most astute
observers of human society, it turns out that he was wrong in his assessment
of the importance of personal identity. As society has become increasingly
information-based, identity has come to play an ever more critically important
role. This is especially so with policing, where knowing who a person is affords
access to a vast network of databases permitting officers to search, seize,
surveil, and question individuals.
1. WILLIAM SHAKESPEARE, THE TRAGEDY OF ROMEO AND JULIET, act 2, sc. 2, ll. 43–44
(Daniel Fischlin ed., 2013).
2019] POLICING POLICE ACCESS 621
In Chicago, for instance, knowledge of personal identity affords police
access to a “Strategic Subject List”2 and a “[H]eat [L]ist” containing risk
analyses of individuals believed likely to be involved in future violence.3 In
New York City, police, as in many other locations, maintain a list of suspected
gang members,4 and also utilize a “Domain Awareness System” that assembles
and links information from multiple sources, such as video surveillance,
license plate readers, and arrest records.5 Boston police collect and store
observational “data on the activities and whereabouts of known and suspected
criminals and their associates.”6 Meanwhile, data “fusion centers” nationwide
combine and analyze data from multiple sources,7 including private
businesses8 and household devices comprising the “Internet of Things.”9
Police also rely upon more traditional databases containing arrest
warrants and information regarding prior stops, arrests, and convictions,10
and biometric information such as fingerprints and DNA, resulting in what
Justice Scalia has called a “genetic panopticon.”11 No less significant,
databases often contain information of a highly sensitive nature, which while
2. Mick Dumke & Frank Main, A Look Inside the Watch List Chicago Police Fought to Keep Secr et,
CHI. SUN-TIMES (May 18, 2017, 9:26 AM), https://chicago.suntimes.com/news/what-gets-people-
on-watch-list-chicago-police-fought-to-keep-secret-watchdogs.
3. Monica Davey, Chicago Police Try to Predict Who May Shoot or Be Shot, N.Y. TIMES (May 23, 2016),
https://www.nytimes.com/2016/05/24/us/armed-with-data-chicago-police-try-to-predict-who-
may-shoot-or-be-shot. html; Jeremy Gorn er, Chicago Police Use ‘Heat List’ as Strategy to Prevent Violence,
CHI. TRIB. (Aug. 21, 2013), http://articles.chicagotribune.com/2013-08-21/news/ct-met-heat-
list-20130821_1_chicago-police-commander-andrew-papachristos-heat-list.
4. See K. Babe Howell, Gang Policing: The Post Stop-and-Frisk Justification for Profile-B ased
Policing, 5 U. DENV. CRIM. L. REV. 1, 15–16 (2015).
5. Rocco Parascandola & Tina Moore, NYPD Unveils New $40 Million Super Computer System
that Uses Data from Network of Cameras, License Plate Readers and Crime Reports, N.Y. DAILY NEWS
(Aug. 8, 2012, 8:50 PM), http://www.nydailynews.com/new-york/nypd-unveils-new-40-million-
super-computer-system-data-network-cameras-license-plate-readers-crime-reports-article-1.1132135.
See generally Christopher Slobogin, Panvasive Surveillance, Political Process Theory, a nd the Nondelegation
Doctrine, 102 GEO. L.J. 1721 (2014) (surveying wide variety of “panvasive surveillance” techniques
employed by police).
6. Jeffrey Fagan et al., Stops and Stares: Street Stops, Surveillance, and Race in the New Policing,
43 FORDHAM URB. L.J. 539, 547 (2016) (quoting Bos. Police Dep’t, Special Order SO 05-023,
June 3, 2005, § 1).
7. See, e.g., National Network of Fusion Centers Fact Sheet, U.S. DEPT HOMELAND SECURITY,
https://www.dhs.gov/national-network-fusion-centers-fact-sheet (last updated Aug. 14, 2018)
(describing centers as “focal points . . . for the receipt, analysis, gathering, and sharing of threat-
related information [between the] federal [government and] state, local, tribal, and territorial
[and private sector] partners”).
8. Chris Jay Hoofnagle, Big Brother’s Little Helpers: How ChoicePoint and Other Commercial Brokers
Collect and Package Your Data for Law Enforcement, 29 N.C. J. INTL L. & COM. REG. 595, 621–22 (2004).
9. See generally Andrew Guthrie Ferguson, The “Smart” Fourth Amendment, 102 CORNELL L.
REV. 547, 554–60 (2017) (discussing how smart devices record data on human behavior and
intentions that can be used by law enforcement).
10. For a comprehensive treatment of the role played by criminal records more generally,
see JAMES B. JACOBS, THE ETERNAL CRIMINAL RECORD (2015).
11. Maryland v. King, 569 U.S. 435, 466, 478–82 (2013) (Scalia, J., dissenting).

To continue reading

FREE SIGN UP