Sunday, May 10, 2020

Case o' The Week: Carpenter Demur - Yang and Rental Car Standing

  Car that’s late moots plate debate.
United States v. Jay Yang, 2020 WL 2110973 (9th Cir. May 4, 2020), decision available here.

Players: Decision by visiting S. Dakota District Judge Piersol, joined by Judge Lee.
 Concurrence by Judge Bea.
 Hard-fought appeal by D. Nev. AFPD Cristen Thayer, along with an impressive array of amicus counsel from EFF and the ACLU.  

Facts: Yang was seen driving a rented GMC Yukon, and stealing mail. Id. at *1. Postal Inspectors queried a huge license-plate database, called “LEARN.” Id. at *2. The database took shots of the Yukon’s plates after the deadline had passed to return it. Id. The rental car company tried tracking the Yukon when it was overdue, but the GPS unit had been deactivated in the car. Id. at *3. The “LEARN” license data lead the Inspector to a condo unit where the Yukon was discovered: a search warrant followed. Id. A search of the residence revealed stolen mail, “fishing devices” to dig mail out of collection boxes, and a gun. Id. After being charged in federal court, Yang moved to suppress. The district court denied the suppression motion, and Yang took a conditional appeal. Id. at *5.     

Issue(s): “Yang argues that the ALPR technology used by Inspector Steele without a warrant to track and locate Yang at his residence violated his Fourth Amendment right to privacy on the whole of his movements under Carpenter v. United States, ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018)—a decision issued by the Supreme Court after Yang’s motion to suppress was denied.” Id. at *2.

Held: “We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s decision denying Yang’s motion to suppress. We do not address the potential Fourth Amendment privacy interests that may be implicated by the warrantless use of this ALPR technology because we conclude that Yang does not have a reasonable expectation of privacy in the historical location data of the Yukon under the facts of this case.Id.

Of Note: Yang is an odd, long opinion. It goes into great depth on the “LEARN” license plate database, describing how the system collects plate hits, the millions of entries that the database maintains, how the database is accessed by law enforcement, and how many hits an average plate generates a year. Id. at *3-*4. The Court then dodges the Carpenter Fourth Amendment issue entirely, effectively holding that Yang had no standing because the Yukon was overdue to the rental company. Id. at *9.
  Judge Bea (correctly) complains in his concurrence that the standing analysis is incorrect for this Carpenter-tracking type claim (particularly for a car that was only 13 hours overdue). Id. at *9 (Bea, J., concurring).
  The majority opinion may be the result of shifting votes, with the long LEARN discussion a legacy of an earlier Carpenter-based decision. Whatever the reason, Yang is ultimately not a decision on the legality of license plate readers: it is a standing decision, focused on rental cars that are kept beyond their return date (and a pretty fact-bound holding, at that).

How to Use: In his concurrence, Judge Bea would have found standing, then held that license-plate harvesting does not implicate Fourth Amendment / Carpenter concerns. Id. In Judge Bea’s view, the (comparatively) few license-plate captures does reveal personal movements to the same degree as the cell phones in Carpenter. Id. at *11. The voracious “LEARN” database of “Vigilant Solutions” cries out for another vigorous Fourth attack – if that happens in your case, reach out to the Yang amici while in the district court, and consider the Bea concurrence when thinking about how to extend Carpenter to license plate databases.
For Further Reading: Last week we flagged the six hundred Terminal Island inmates that were COVID-19 positive, and warned to “brace for skyrocketing numbers” from Lompoc as tests were administered.
   We didn’t brace hard enough.

   Nearly 850 inmates and staff have tested positive for COVID-19 in Lompoc: 68% of the prison’s population. See CBS Article here; see also LA Times Article here.    

Image of “LEARN” license plate “intelligence platform” from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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