Ellison and Reasonable Expectations

US v. Ellison is an interesting case to examine for the purposes of the evolution of the Fourth Amendment. While Ellison’s defense focused on the officer’s lack of probable cause (since Ellison was merely idling in a Fire Lane—a semi-violation that may not even be against the law), the Court of Appeals focused on the always-controversial “reasonable expectation of privacy” standard. I deem it always-controversial because it seems so subjective, but justices are constantly making these types of judgments, so perhaps my frustration with the vagueness is misplaced. As was elaborated upon in US v. Sokolow (and previously in Cortez), “The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers.”

Anyway, the Sixth Circuit Appeals Court decided that a citizen has no reasonable expectation regarding the privacy of their license plate number because it is clearly visible to anyone in the public sphere, and the entire idea behind having license plates is to identify and keep track of drivers. With this explanation by the Court, they suggest that a car need not commit any violation in order for a police car to look up one’s records in the LEIN. I am still mostly comfortable with this, as I agree that one does not have a right to the privacy of the records that a license plate search might reveal.

My discomfort comes with what seems to me to be the shrinking physical space that is considered “private” with progressing technology. The “reasonable expectation of privacy” standard seems to move along a spectrum towards less and less privacy as our society evolves. These days, physical spaces of privacy are limited to the interior of the home that is not visible from a public space. The idea that the government can find out one’s past transgressions from their license plate number seems like an overreach. This could lead to police anticipating (perhaps falsely) criminal activity from past records that are accessible from the license plate. Considering that one cannot move any significant distance without a car, and one cannot legally own a car and drive it without a license plate, this seems problematic to me.