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

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. 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).