USCA, Fifth Circuit United States v. Brownlee, Case No. 25-10855

Mr. Wright (0:07)

Thank you, Chief Judge Elrod. Good morning, and may it please the court. Today, we ask this court to hold that police perform a Fourth Amendment search when using the vigilant and flock safety surveillance databases. And we're asking you to hold that for four reasons. First, these databases, as used in this case, are stunningly comprehensive. Second, the initial collection of surveillance data is indiscriminate and it goes against everyone.

Third, these databases enable retrospective reconstruction of a person's movements.

And fourth, that retrospective reconstruction, once the police decide to do it, is instantaneous, essentially effortless, and unmediated. Now, to my first point, Your Honors, these databases are stunningly comprehensive.

Jennifer Walker Elrod (1:00)

To the extent that people argue in this case that, oh, well, I think it's Dallas, doesn't have as many as some places, and so it's really not as comprehensive, and so it's more spotty. Do you have a response to that?

Mr. Wright (1:15)

I do, Your Honor. First of all, I think that the most recent guidance we have from the Supreme Court at Chattery cast doubt on the idea that we should be counting the number of hits, if you will.

Second, I'm not an expert in visual art, so whether it's impressionism or pointillism, whether we're talking about mosaics or stained-glass windows, we still have an image, we still have a picture, and there is no doubt that that happened here.

Jennifer Walker Elrod (1:38)

An AI can help fill in with other data if it's available. Isn't that?

Mr. Wright (1:43)

I think that's correct, Your Honor, but they don't even need other data. I think it's important to look at on this record what they did have. We don't know exactly what they had because the government successfully resisted an evidentiary hearing. But even then, this is why I say it's stunningly comprehensive. The Grapevine Police Department Detective Wolin says that flock scans, one of the systems, gives you the person's pattern of life. That's at record 1120

At the same time, he said the vigilant database, the other one, which is typically moving cameras, tells you where the vehicle lives. If you look at government trial exhibits 41, 43 and 45, which are at record 1770, 1772, and 1774, there you can see the metadata. That's not provided from any other source. That is what these systems gave.

Jennifer Walker Elrod (2:34)

Assuming we just hypothetically that we were inclined to see that this could be a big problem for privacy interest in the Fourth Amendment, this is a big ask though, isn't it? Or have other courts recognized this and used it to say that the Fourth Amendment bars the use of this? Are you asking for a blanket rule that flock cameras can't be used?

What is it? Are you asking something unique from us? And what is it that you're specifically asking?

Mr. Wright (3:10)

Specifically, what we're asking this court to hold is that the use of the flock safety and vigilant surveillance databases in this case constituted a search for purposes of the Fourth Amendment.

Jennifer Walker Elrod (3:22)

Would we be the First Circuit to say that?

Mr. Wright (3:27)

At the Circuit Court of Appeals level, that may be the case, Your Honor. There are pending cases right now. There's a pending case in the Fourth Circuit. There's a pending case in the Eleventh Circuit.

Jennifer Walker Elrod (3:35)

Have any said no?

Mr. Wright (3:37)

Have any said no, it's not a search. Not involving this kind of detailed retrospective reconstruction, but I'm not sure that the full capabilities of these systems have been either revealed or litigated in the way that we find even on this record.

Jennifer Walker Elrod (3:56)

And the District Court didn't go through all of that in this case?

Mr. Wright (4:00)

Did not, Your Honor, because the District Court essentially accepted the government's argument that this is per se not a search. It just couldn't be.

I think that, again, in terms of what we know from this record, 152 of the record, you have a police report that says this car was scanned five times in one particular area of Arlington. That's sort of the lie after they decided to find this car. This car was scanned four minutes after the Grapevine robbery, which is the final robbery. So that's 1736 of the record. And that's about 200 yards from the store. That's 1117 of the record.

Jennifer Walker Elrod (4:39)

Would you be making this argument to us if this was ring cameras?

Mr. Wright (4:44)

Well, no, Your Honor, I don't think that I would. Unless the police were the ones who put up the ring cameras. If the police were the only ones who had access to it.