Judge says use of license plate cameras in Richmond-area robbery investigations did not violate 4th Amendment

RICHMOND, Va. (WRIC) -- A federal judge ruled that Richmond and Chesterfield police officers' use of license plate cameras while investigating a string of armed robberies did not violate a suspect's Fourth Amendment rights.

On Friday, Oct. 11, Robert E. Payne -- a federal judge with the United States District Court for the Eastern District of Virginia -- denied a motion to suppress evidence obtained using Flock license plate cameras in an armed robbery case.

As first reported by The Richmonder, Kumkio Martin is accused of the armed robbery of a Tobacco Hut on Midlothian Turnpike in Richmond in May 2023. According to court documents obtained by 8News, his charges include Hobbs Act Robbery, brandishing a firearm and possessing a firearm as a convicted felon.

Martin's defense filed this motion on the grounds that police's use of Flock's cameras to obtain the license plate number of the car involved in both the Tobacco Hut robbery and two late April 2023 robberies was in violation of the Fourth Amendment, which protects a person from unreasonable search and seizure.

A lawsuit presenting similar allegations was recently filed in Norfolk.

In his responding memorandum and order, Payne described the events that ultimately led to Martin's arrest, including the nature of the police's use of the Flock camera system.

The robberies and how Martin was ultimately arrested

On April 22, 2023, two people were robbed at gunpoint near the intersection of 48th Street and Dunston Avenue in the city of Richmond. According to court documents, the robber was described as a Black male in a facemask. The victims claimed he had a blue handgun.

Footage from surveillance cameras at a nearby Valero gas station showed the robber leaving the area in a gold, four-door Acura sedan with a moonroof and stickers in its rear passenger windows. According to court documents, the license plate number of the Acura was not captured on the gas station camera.

Officer Richard Redford with the Richmond Police Department then used the Flock camera system to try and find the license plate number for the Acura. He was able to access 2,500 images from a maximum of 30 days prior to the date of the robbery.

According to court documents, the Flock camera system can identify not only the license plate number of a vehicle (when possible) but also the make, model and color of a car. It also returns the date, time and location of every picture taken.

Redford reportedly found two images of the Acura -- identified via its tickets -- after reviewing the results manually. According to court documents, these returned a license plate number.

The next day, on April 23, 2023, officers with the Chesterfield County Police Department were called to the scenes of an attempted breaking and entering and an armed robbery.

According to court documents, at about 10:15 p.m., a suspect was seen on a convenience store's surveillance footage trying to unlock its door and failing. They then fled the scene, heading towards Reams Road.

About 10 minutes later, an armed robbery occurred at a BP Gas Station about three miles away from the convenience store on Reams Road. According to court documents, the robber brandished a blue or teal firearm while stealing the victims' iPhones, credit cards, payroll checks, car keys and a laptop.

Chesterfield Police Detective Joshua Hylton determined that the gas station suspect, caught on camera in BP's parking lot, matched the description of the suspect at the convenience store.

Hylton then used the Flock camera system to find images of the gold Acura the suspect in these two incidents both arrived to and left the scene in. According to court documents, the search returned a photo of the Acura and Hylton was able to obtain a license plate number -- the same as the one found by Redford.

At this time, Hylton learned that the Richmond Police Department was also investigating this same Acura in connection to its own armed robbery case. They began coordinating their work.

The gold Acura was then traced to a Breona Reid of Chesterfield County. According to court documents, authorities learned that the photos Redford found were taken near Reid's home on the day of the Richmond armed robbery -- one of them just 17 minutes after police were called to the scene.

Richmond Police filed for a warrant to place a GPS tracking device on the Acura, which was approved on April 26, 2023. Chesterfield officers were successful at attaching this device to the car on May 3.

The next day, on May 4, Richmond police officers were called to a Tobacco Hut on Midlothian Turnpike for a reported armed robbery. According to court documents, officers looked at surveillance footage at the store and saw that the suspect had a blue or teal handgun.

They also found footage of the robber leaving the Tobacco Hut and entering a gold Acura with stickers on its rear windows.

The GPS device confirmed that the gold Acura registered to Reid was at the Tobacco Hut before and during the robbery. According to court documents, Chesterfield officers tracked the Acura and watched a man matching the robber's description enter Reid's apartment complex, then leave again in the Acura.

Officers then performed a traffic stop on the Acura and took its driver, identified as Martin, into custody.

According to court documents, while being interviewed by officers, Martin told Hylton that he had robbed the Tobacco Hut to pay his rent at Aaron's, a rent-to-own furniture store. He reportedly told officers that, while he had aided in the other robberies, the person who had actually carried them out was his father.

Additionally, Martin is said to have told officers that the gun used in the crimes was Reid's.

According to court documents, a search warrant was obtained for Reid's home based on this confession, the obtained license plate number being associated with Reid and various surveillance footage from the involved businesses. During this search, a blue handgun, ammunition, wigs, clothing and money were confiscated.

Martin was later charged in the Tobacco Hut armed robbery on Nov. 7, 2023.

Martin claims his 4th Amendment rights were violated

The Fourth Amendment as written states that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated -- and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."

In subsequent legal cases, such as Katz v. United States in 1967, additional precedent was added. A Fourth Amendment violation can be proven if someone has an expectation of privacy that is societally accepted as "reasonable." In essence, a person must have subjectively believed they could expect privacy and society must objectively believe that assumption is reasonable.

Martin's defense argued that, on the whole, the use of the Flock camera system to find the license plate of the gold Acura involved in these robberies constitutes unconstitutional search and seizure. As such, they stated all such evidence associated with that search should be suppressed.

In its motion, Martin's defense began by saying how the Flock camera system -- which it describes as a "broad surveillance system" -- is capable of more sophisticated searches than just license plate tracking. It adds that Redford testified to this effect during court proceedings.

His defense alleged that, by using the Flock camera system, police could track the "totality of [Martin's] movements" -- which it said violated his Fourth Amendment right to a reasonable expectation of privacy.

"Mr. Martin asserts, in reliance on Carpenter and Leaders, that it is the accessing of the
data that constitutes a search," his defense said. "The Flock camera system captures and retains not only Mr. Martin’s movements, but every single person traveling within its national web of linked cameras. Mr. Martin had a reasonable expectation of privacy that the whole of his travel would not be monitored or tracked by the government."

As interpreted by Martin's defense, this Carpenter case supports its claims that society does not expect law enforcement to track a suspect for an extended period, nor "monitor and catalogue every single movement."

"Beyond simply capturing a license plate, this capturing and cataloguing of vehicle information is exactly what the Flock system does in contravention of society’s expectation," Martin's defense said.

The Fourth Amendment also includes a "good faith" exception, wherein someone may be protected if they violated this amendment while acting in good faith. Martin's defense claimed this does not apply here.

"The Supreme Court laid out the criteria for application of the good faith exception in United States v. Leon," Martin's defense said. "Leon involved officers acting in good faith on a search warrant later determined to lack probable cause. The absence of any search warrant for the Flock system initially dooms the government’s argument."

Judge denies Martin's claim and orders evidence is legal

In his responding memorandum and order, Payne fundamentally disagreed with Martin's defense's interpretation of cases like Carpenter, saying that the Flock camera system's database is "materially different" than what was at play in that case.

"Further, the Government argues that Martin has demonstrated neither a subjective nor an objective expectation of privacy in his movements under the facts of this case," Payne said.

Payne also rejected Martin's defense's assertion that police did not act in good faith.

"Alternatively, the Government argues that, even if the Court were to decide that a warrantless search did in fact occur, the evidence should not be suppressed because the Government relied in good faith on valid search warrants and binding caselaw at the time of the search," Payne said.

Payne cited multiple court cases, such as United States v. George, which he said support the idea that the visible parts of a car cannot be covered by a reasonable expectation of privacy. As license plates are required to be publicly displayed, Payne said they cannot provide a basis for such an argument.

Finally, Payne said he did not agree with the idea that police were tracking Martin or cataloging the totality of his movements.

"That's because the law enforcement officers in this case only saw three photographs of Martin's car in their search of Flock's database," Payne said.

The Flock cameras do not record travel routes or other related details, either -- so things like the gold Acura's routes to and from the crime scenes are not known. Payne said this is further proof of their lack of ability to "track" people.

"The Flock system is not meant to 'track' or 'monitor' the entirety of an individual's movements during a particular car trip, much less through the activities of their daily life," Payne said. "The Flock cameras are 'strategically' placed to capture images of locations, not individuals, that are known as historically high-traffic or high-crime areas."

Payne added that almost 200 other area Flock cameras had no pictures of the gold Acura on them.

In these ways, Payne said he felt that Martin's defense had not proven by a preponderance of evidence that Martin had either a subjective or objective expectation of privacy as established by Katz.

"Martin, perhaps recognizing the factual weakness of his claim, exhorts the Court to think about the proverbial big picture dangers purportedly inherent in Flock," Payne said. "He claims that Flock cameras create an interconnected web, or 'network,' of cameras that allow law enforcement to track individuals across jurisdictions — even across the entire United States. If more cameras and advanced search capabilities are added, says Martin, this threat will only grow."

Payne said he could not rule on the future, as it remains "uncertain" and "courts have been historically inept at predicting it."

"The Court is cautious to not hinder law enforcement's use of modernizing surveillance capabilities in the public sphere lest the Court 'embarrass the future,'" Payne said. "This Court must rule on the facts as they are and may not speculate about what the future may hold for Flock's capabilities. Today's ruling is limited to the facts of this case as they are at the time of this ruling."

For such reasons, Payne ordered that the motion to suppress be denied and that the evidence obtained via the Flock camera system would be admissible during Martin's further court proceedings.

Martin's attorney refused to comment when reached out to by 8News, as "the matter is still pending." Martin's trial by jury is scheduled to begin on Nov. 18.