The Constitutional Case That Could Kill an $8.4 Billion Company: Schmidt v. Norfolk and the Legal Theory That Says Your Commute Is Your Diary

By Ron Durbin | Guerrilla News

Lee Schmidt and Crystal Arrington live in Norfolk, Virginia. They drive to work. They drive to the grocery store. They drive to church. They drive their children to school. And every time they get behind the wheel, nearly 200 Flock Safety cameras record their license plate, the make and model of their vehicle, the direction they are traveling, and the exact time they passed each camera. That data is uploaded to a searchable database. It is stored. It is accessible to law enforcement without a warrant. It has been accumulating for years.

Schmidt and Arrington did not consent to this. No court issued a warrant authorizing it. No judge reviewed probable cause. The city installed the cameras, signed a subscription contract with a private company, and began recording the movements of every vehicle in a 53-square-mile municipality. Schmidt and Arrington are suing the City of Norfolk in federal court, arguing that what the city is doing is not crime prevention. It is a warrantless search in violation of the Fourth Amendment.

If they win, every Flock Safety camera in the country may be operating illegally.

The Precedent the Government Relies On

The legal defense of automated license plate surveillance rests on a single Supreme Court decision from 1983. In United States v. Knotts, the Court held that a person traveling on public highways has a "diminished expectation of privacy" because their movements are voluntarily exposed to anyone who happens to observe them. The police placed a radio transmitter in a container of chemicals to track a suspect's car. The Court ruled that no warrant was needed because the officers were merely augmenting what they could have done with their own eyes: follow the car on public roads.

For four decades, law enforcement agencies and surveillance vendors have cited Knotts as blanket authorization for mass vehicle tracking. The argument is simple: if you can be seen driving on a public road, you have no reasonable expectation of privacy in your movements. Therefore, a camera that photographs your car is no different from a police officer standing on a street corner watching traffic.

In 1983, that logic may have held. A single officer could follow a single car for a single trip. The practical limitations of human observation imposed a natural constraint on surveillance. An entire police force could not simultaneously follow every car in a city. The Fourth Amendment's warrant requirement was deemed unnecessary because the scope of the surveillance was inherently limited by the effort required to conduct it.

In 2026, a single subscription activates 200 cameras that simultaneously track every vehicle in a city, 24 hours a day, for years, with no human effort at all.

The Mosaic Theory

The constitutional counterargument to Knotts is called the Mosaic Theory. It was first conceptualized by the D.C. Circuit Court of Appeals in United States v. Maynard and has since been recognized, in varying degrees, by the Supreme Court in two landmark decisions.

In United States v. Jones (2012), the Court held that attaching a GPS tracking device to a suspect's vehicle for 28 days constituted a search under the Fourth Amendment. Five justices wrote or joined concurring opinions that went beyond the physical trespass theory of the majority. Justice Alito, joined by three others, argued that long-term monitoring of a person's movements reveals an "intimate picture" of their life that no reasonable person would expect to be exposed to the government. Justice Sotomayor, writing separately, went further: even short-term GPS monitoring generates a precise, comprehensive record that "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations."

Six years later, in Carpenter v. United States (2018), the Court applied this reasoning to cell-site location information. The government had obtained 127 days of historical location data from a suspect's cell phone carrier without a warrant. The Court, in a 5-4 decision written by Chief Justice Roberts, held that the acquisition of CSLI constituted a search because it enabled the government to achieve "near perfect surveillance" and to travel "back in time to retrace a person's whereabouts." The Court explicitly noted that such data reveals the "privacies of life," allowing the government to construct a comprehensive chronicle of a person's movements.

The Mosaic Theory, as crystallized through Jones and Carpenter, poses a direct challenge to the foundation of every ALPR network in the country. The theory holds that while a single photograph of a single car at a single location may not constitute a search, the continuous, automated, aggregate collection of location data over extended periods crosses a constitutional threshold. The individual tiles of the mosaic are innocuous. The completed picture is a detailed diary of an American citizen's life, assembled without their knowledge and without judicial authorization.

The Baltimore Precedent

The Mosaic Theory has already been used to kill a surveillance program.

In Leaders of a Beautiful Struggle v. Baltimore Police Department (2021), the en banc Fourth Circuit Court of Appeals struck down Baltimore's Aerial Investigation Research program. The AIR program used small aircraft equipped with cameras to photograph the city from above for 12 hours a day. The images were low resolution. Individual people appeared as blurry, single-pixel dots. The cameras could not read license plates or identify faces.

It did not matter. The Fourth Circuit ruled that the program was unconstitutional. The court reasoned that because human movement patterns are "so unique and habitual," police could use deductive reasoning to reconstruct the "whole of individuals' movements" from the aggregated data. A single aerial photograph revealed nothing. Months of photographs, cross-referenced with ground-level observations, revealed everything: where a person lived, where they worked, which neighborhoods they visited, and which people they associated with. The court held that this reconstruction constituted a search under the Fourth Amendment, requiring a warrant.

The Baltimore cameras captured blurry dots from thousands of feet in the air. Flock Safety cameras capture high-resolution images of license plates, vehicle makes, models, colors, and distinguishing features from seven feet off the ground. The Baltimore program operated 12 hours a day in a single city. Flock Safety cameras operate 24 hours a day across 6,000 municipalities. If the Baltimore program was unconstitutional, the legal argument that Flock's network survives constitutional scrutiny becomes extraordinarily difficult to maintain.

Schmidt v. City of Norfolk

The Institute for Justice, a national public interest law firm, filed Schmidt v. City of Norfolk on behalf of Lee Schmidt and Crystal Arrington. The complaint argues that Norfolk's deployment of nearly 200 Flock ALPRs across a 53-square-mile municipality operates as a dragnet identical in function to the aerial surveillance struck down in Baltimore.

The city moved to dismiss the case, arguing that license plate photography on public roads does not constitute a search. The district court denied the motion. In its ruling, the court agreed that the plaintiffs had plausibly alleged a Fourth Amendment violation because the cameras effectively placed the entire city under an unblinking, warrant-free tracking system. The court found that the density and persistence of the camera network mirrored the privacy invasions described in Carpenter: a system capable of reconstructing the comprehensive movements of every vehicle in the city, day after day, month after month, without any individualized suspicion or judicial oversight.

The Electronic Privacy Information Center and the Electronic Frontier Foundation have filed amicus briefs in support of the plaintiffs. The case is currently pending before the Fourth Circuit Court of Appeals, the same court that struck down Baltimore's aerial surveillance program.

The $8.4 Billion Question

If the Fourth Circuit upholds the application of the Mosaic Theory to automated license plate readers, the ruling would establish binding precedent across Virginia, West Virginia, Maryland, North Carolina, and South Carolina. Every Flock Safety camera operating without a warrant in those five states would be conducting an unconstitutional search.

But the implications extend far beyond the Fourth Circuit. A federal appellate ruling that ALPRs trigger Fourth Amendment protections would provide persuasive authority to courts across the country. Every municipality operating a Flock network would face the same question: can you track the movements of your entire population, continuously, without a warrant? The answer from Carpenter is that you cannot do it with cell phone records. The answer from Baltimore is that you cannot do it with aerial photographs. The answer from Norfolk may be that you cannot do it with license plate cameras.

Flock Safety's $8.4 billion valuation is built on the assumption that its cameras operate in a legal gray zone where Knotts still controls. That municipalities can install hundreds of cameras, record every vehicle, share the data across thousands of agencies, and retain it for months or years without ever obtaining a warrant or demonstrating probable cause. The Mosaic Theory argues that this assumption is a constitutional fiction, a relic of 1983 applied to a technology that the Knotts Court could not have imagined.

The case is pending. The cameras are still recording. And the question of whether the Fourth Amendment protects your right to drive to church without the government building a searchable database of every road you took to get there is being decided right now, in a federal courthouse, by judges who will determine whether the most expansive civilian surveillance network in American history can continue to operate as designed.

Next in this series: 23 cities have said no to Flock Safety. Denver called them a "bad actor." Evanston covered the cameras with plastic sheeting. And when one citizen in Washington State won the legal right to see what the cameras captured, the legislature made it illegal for anyone to ever ask again.

Disclaimer: This article is for informational and journalistic purposes only and does not constitute legal advice. References to federal case law, constitutional theory, and pending litigation are provided for public transparency and educational reference. They should not be relied upon as a substitute for consultation with a qualified attorney. Guerrilla News is an independent journalism outlet and is not affiliated with any party, law firm, government agency, or legal proceeding discussed in this report.

Sources

1. "Schmidt v. City of Norfolk: Automated License Plate Readers Commit Fourth Amendment Searches," Homeland Security Newswire
2. "Surveillance Technologies and Constitutional Law," National Institutes of Health / PMC
3. Local Government Section MCLE Program Webinar, DuPage County Bar Association
4. Plaintiffs' Reply in Support of Motion for Summary Judgment, Institute for Justice
5. Amicus Brief, Schmidt v. Norfolk, American Civil Liberties Union
6. "Learning from Leaders: Using Carpenter to Prohibit Law Enforcement Use of Mass Aerial Surveillance," George Washington Law Review
7. "Leaders of a Beautiful Struggle v. Baltimore Police Department," Harvard Law Review
8. "The Mosaic Theory's Two Steps: Surveying Carpenter in the Lower Courts," Texas Law Review
9. "Living in Private: The Fourth Amendment and Perpetual Electronic Surveillance," Federal Communications Law Journal
10. Amicus Brief, Schmidt v. Norfolk, NYU Law
11. Case: Schmidt v. City of Norfolk, Civil Rights Litigation Clearinghouse
12. Letter to Greers Ferry City Council re Camera Surveillance, Institute for Justice
13. Amicus Brief, Schmidt v. Norfolk, Electronic Privacy Information Center