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

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. A TTENUATION D OCTRINE ........................................................ 628 B. T HE I DENTITY E XCEPTION ....................................................... 635 C. S UMMARY ............................................................................... 639 III. THE CONSEQUENCES OF POLICE ACCESS ...................................... 640 A. A RREST W ARRANTS ................................................................. 640 B. O THER D ATABASES .................................................................. 645 1. Stop, Arrest, and Conviction Records .......................... 645 2. Biometric Data ............................................................... 649 3. Unlawfully Secured Evidence ....................................... 651 4. Sensitive Personal Information .................................... 653 C. I MPLICATIONS ......................................................................... 655 IV. SKETCHING THE PATH AHEAD ...................................................... 661 A. C LEARING A WAY THE D OCTRINAL U NDERBRUSH ....................... 661 B. D OCTRINAL P ATHS .................................................................. 664 1. Fourth Amendment ...................................................... 664 2. Fifth Amendment .......................................................... 669 3. Remedy .......................................................................... 671 C. S TATUTORY F IX ....................................................................... 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 businesses 8 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 Secret , 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-whomay-shoot-or-be-shot.html; Jeremy Gorner, 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-Based 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, and 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. DEP’T 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. INT’L 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). 622 IOWA LAW REVIEW [Vol. 104:619 not necessarily affording investigative benefit, can expose individuals to significant embarrassment. 12 Taken together, the myriad databases, their inter-operability, and the ease with which information can be retrieved from them (by computer laptops, tablets, and handheld devices), 13 has fostered a revolution in policing akin to that of the introduction of patrol cars and two-way radios. 14 As two policing scholars recently put it, officers today engage in “database policing” in the search of “hits.” 15 Unfortunately, legal doctrine has not kept pace with these realities, with scholars and courts focusing mainly on the collection 16 and use of data. 17 This Article addresses a distinct yet equally critical important issue: police wherewithal to access databases by means of personal identifiers—a form of data matching. 18 Properly viewed, identity information is an evidentiary fruit 12 . See infra text accompanying notes 271–86. 13 . See, e.g. , David Griffith, The Next Stage of Patrol...