State v. Simonson
A Washington appellate court held that a momentary Flock ALPR image of a plate displayed on a public road did not invade private affairs, while underscoring serious preservation and discovery failures.
Executive Summary
Simonson addresses two distinct ALPR issues that agencies must keep separate: whether viewing a particular plate image is a constitutional search and whether the government properly preserved the digital evidence and audit records supporting its investigation.
A Flock camera generated an alert for a stolen license plate displayed on a Ford pickup. Police located the truck at a casino, used separate casino video to identify Burk Simonson as its driver, and confirmed that the truck was stolen. The underlying Flock image and related data were not archived before the vendor’s 30-day deletion period expired.
The trial court dismissed the prosecution because the missing data prevented full review of Simonson’s suppression claim. The Washington Court of Appeals reversed. It held that the single photograph of a publicly displayed plate did not disturb Simonson’s private affairs under the Washington Constitution and did not implicate a reasonable expectation of privacy under the Fourth Amendment. Because the evidence was only potentially useful and the trial court made no finding of bad faith, dismissal was improper.
The Flock ALPR System Described by the Court
Local agencies used motion-activated “Falcon” cameras placed along public roadways. The cameras captured still images of plates within approximately 50 feet and transmitted them to Flock servers. The system compared plates against information associated with the FBI’s National Crime Information Center.
- A database match generated a “hit,” which functioned as a pointer rather than final proof.
- Officers remained responsible for confirming the alert against current records.
- Images not archived were deleted after 30 days under the vendor’s retention policy.
- Authorized users could query retained data and were required to state a reason.
- An audit log recorded database inquiries and was maintained indefinitely.
The Investigation
A deputy received a Flock alert for a stolen Washington plate displayed on a Ford pickup. The deputy reviewed the alert image and found the vehicle approximately ten minutes later in a casino parking lot.
The plate belonged to a different vehicle, and the truck’s vehicle identification number was obscured. Casino surveillance showed Simonson arriving alone in the pickup. He possessed the keys and said a friend named “John,” whose last name he did not know, had lent him the truck. Police confirmed the pickup was stolen and arrested him.
Simonson moved to suppress evidence derived from the ALPR and sought dismissal based on the government’s failure to preserve the underlying data.
Failure to Preserve the ALPR Evidence
Simonson requested the Flock information shortly after charges were filed and before expiration of the vendor’s retention period. The image had not been archived and was later unavailable. The indefinitely retained audit history was also not produced.
The trial court found that agency policy required archiving digital evidence expected to be used in a criminal prosecution. The appellate court agreed that deviation from the agency’s preservation policy constituted governmental mismanagement.
A vendor’s automatic deletion period does not displace the agency’s preservation duty. Once a hit or image becomes connected to a foreseeable prosecution, officers and evidence personnel must take affirmative steps to preserve it.
Constitutional Holding
The court held that the momentary Flock image at issue did not disturb Simonson’s private affairs under article I, section 7 of the Washington Constitution. License plates are public identifiers required to be openly displayed, and the camera photographed the plate while the vehicle traveled on a public road.
The court analogized the image to an officer visually observing a plate and checking associated records. It rejected comparison of this particular use to installation of a GPS tracker or examination of cellphone-location data.
A single Flock photograph of a publicly displayed license plate on a public roadway was not a constitutional search on the facts before the court.
The opinion acknowledged that the system as a whole can store searchable patterns, support historical inquiries, and provide broader tracking capabilities. The court nevertheless focused on the arresting deputy’s inspection of one alert photograph.
Why Dismissal Was Reversed
The missing Flock material was potentially useful rather than apparently exculpatory. Under the governing preservation doctrine, destruction of potentially useful evidence violates due process only upon proof of bad faith.
The trial court did not find that law enforcement acted in bad faith. Instead, it effectively required the State to demonstrate good faith. The appellate court held that this improperly shifted the burden from Simonson.
Because the single alert image did not implicate constitutional privacy, the suppression motion would have failed. Simonson therefore could not establish the material prejudice required for dismissal under the former version of Washington Criminal Rule 8.3(b). The appellate court left any separate discovery-rule argument for consideration on remand.
What the Decision Does—and Does Not—Establish
- The opinion is unpublished and should be characterized accordingly when discussing precedential value.
- The holding concerns a momentary alert image, not an extended historical query reconstructing travel patterns.
- The court acknowledged that broader system capabilities could differ from a single public-road observation.
- The decision does not excuse failure to archive evidence or failure to produce audit logs.
- The agency’s preservation lapse constituted governmental mismanagement even though dismissal was unwarranted without bad faith and prejudice.
- A Flock hit remains a pointer that requires verification; it does not conclusively prove vehicle status, driver identity, or criminal involvement.
- Independent state constitutional, statutory, policy, and discovery requirements may provide greater protection.
Agency Guidance
Primary Sources and Further Reading
This monograph is provided for training and general informational purposes. It is not legal advice and does not replace review of the complete opinion, publication and citation rules, current statutes, controlling federal and state authority, discovery obligations, agency policy, technical documentation, or consultation with prosecutors and agency counsel.
© 2026 Shield Public Safety Training. All rights reserved. Reviewed September 3, 2026.