Why Facial Recognition Technology Demands A Warrant

Facial recognition technology (FRT) seems to be everywhere these days—it is in malls, airports, and our ever-present smartphones. First commercialized in the mid-1990s, FRT today is used widely in the police investigation process due to its efficiency. Despite how commonly the technology is used as an investigative tool, the legal protections to govern its use and avoid government overreach have not been updated accordingly due to a lack of federal FRT legislation. The Eighth District Court of Appeals case State v. Tolbert (2025) reveals this lack of judicial oversight over FRT. While the case is still active and ongoing, the facts established in the case and the rulings to date point to the need for clearer FRT regulations. 

In State v. Tolbert, the Cleveland Police Department used a facial recognition match from a fusion center to identify Qeyeon Tolbert as a suspect for a homicide case. From this identification match, Homicide Detective Michael Legg secured a search warrant of an apartment linked to Tolbert, resulting in Tolbert’s arrest. Although the Eighth District Court of Appeals found that the use of FRT to obtain a warrant did not violate Tolbert’s Fourth Amendment right to a truthful affidavit warrant, the court’s ruling overlooks an important concern that the defendant raises: the unregulated use of FRT to identify a suspect. Given that FRT is an efficient surveillance tool becoming more commonly used in criminal investigation, lack of government regulation can encourage unreasonable searches in violation of the Fourth Amendment. To protect citizens from unregulated mass surveillance, while also acknowledging the benefits of FRT, the use of FRT to verify or identify an individual should be treated as a search under the Fourth Amendment.  

State v. Tolbert focuses on defendant Qeyeon Tolbert, a twenty-three-year-old African American man from Cleveland. In this case, the plaintiff, the state of Ohio, is seeking to appeal the trial court’s decision to suppress evidence collected in a search warrant. On February 21, 2024, detectives conducted a warranted search of an apartment they suspected to be Tolbert’s and recovered various articles of clothing, a firearm, and several cell phones, resulting in the arrest of Tolbert as a prime suspect in a homicide case. Detectives had connected Tolbert to a homicide that had occurred a week prior, after a facial recognition system at the Northeast Ohio Regional Fusion Center identified the suspect in the CCTV as Tolbert, with the FRT match serving as the basis for the warrant. 

On November 13, 2024, after Tolbert had been indicted for charges relating to the homicide,  Tolbert filed a motion to suppress all evidence found in the search, claiming that the warrant affidavit contained a false or misleading statement. The misleading statement of the warrant affidavit details how a facial recognition match from a fusion center identified Tolbert as the suspect in the CCTV video at the scene of the homicide. On the other hand, the FRT system, Clearview AI, employed by the Cleveland Police Department, states in their disclaimer “these search results are not intended or permitted to be used as admissible evidence in a court of law or any court filing”. This finding prompted a Franks hearing, which challenges the validity of a warrant by determining if a police officer lied in obtaining it, in response to Tolbert’s motion to suppress, where the trial court ruled in favor of Tolbert. The court granted the motion to suppress the evidence stating that the officer’s affidavit omitted key details relating to the Fusion Center match; further, they argued that the officer’s mistakes were intentional and reckless and that the judge should not have signed a search warrant due to the omitted details. On September 25, 2025, the Ohio Eighth District Court of Appeals reversed the trial court’s decision and allowed for the evidence collected in the search to be admissible on the basis that the trial court did not apply Franks v. Delaware appropriately. The court did not find that Detective Legg intentionally made false statements or omissions, and believed there was still enough evidence to establish probable cause, even without the FRT match from Clearview AI. The trial court and the appellate court were addressing the validity of the warrant, rather than the regulatory question of FRT use and what proper legal protections are necessary. 

The differing rulings between the trial court and the appellate court in State v. Tolbert, highlight the shortcomings of appropriate regulation of FRT use. Although both courts were ruling on the validity of the warrant itself, the trial court made the astute decision to address the unreliability of the fusion center’s match, as well as the ambiguity in the disclosure of the information. The inconsistency in identifying the appropriate application of FRT revealed in State v. Tolbert underscores the urgent need to provide a standard legal and regulatory framework for the use of FRT as an investigative tool. In the case, the trial court treated the FRT match as unreliable and its omission as reckless, while the appellate court found enough probable cause without the warrant. In both rulings, the debate was whether the warrant was valid rather than whether a warrant should have been required to obtain the FRT match. This discrepancy between the widespread use of FRT and the lack of consistent standards in how it is used reveals the necessity to establish legal protections surrounding this technology. This necessity isn’t limited to regulations on FRT, but reflects the broader need for stricter regulations in an age of technological advancement. To identify the proper legal protections for technologies like FRT, recent legal precedents regarding similar surveillance methods offer possible solutions. 

The 2018 case Carpenter v. United States is a landmark ruling that applied the Fourth Amendment to cell-site location information (CSLI). The legal question in this case was whether the government’s acquisition of CSLI from a phone company qualified as a search under the Fourth Amendment, and therefore required a warrant. The Supreme Court held in a 5-4 decision that accessing CSLI is considered a search under the Fourth Amendment, and therefore requires a warrant. The Fourth Amendment defines a search as a government employee or agent violating an individual’s reasonable expectation of privacy. The Reasonable Expectation Privacy Test, originating from Katz v. United States, outlines how to measure reasonable expectation of privacy. First, the individual must exhibit an actual (subjective) expectation of privacy; then, this expectation must be one society is prepared to recognize as reasonable. In Carpenter, the petitioner Timothy Carpenter argued that he was entitled to privacy regarding the use of his cellphone data, including CSLI. The court agreed that this was an expectation well within society’s acceptance due to the “depth, breadth, and comprehensive nature” of CSLI, as well as the “inescapable and automatic nature of its collection”. This ruling not only expanded unreasonable searches and seizures to include technology, but also limited the third-party doctrine, a legal principle that states individuals have no reasonable expectation of privacy for information voluntarily surrendered to third parties. The interpretation of the Fourth Amendment in Carpenter demonstrates the inescapable presence of advanced technologies in everyday life, and the need to establish firm legal protections to avoid government overreach when these technologies are used as investigative tools. 

FRT presents concerns parallel to those raised in Carpenter. Similar to CSLI, FRT allows government agencies to identify individuals for investigative purposes in a manner that utilizes technology the public cannot easily opt out of using. FRT matches compare the image in question to those in their massive database, suggesting that comprehensive collection often occurs without explicit consent from individuals. Simply appearing in a public space can make an individual susceptible to being included in a FRT database. Additionally, the volume of datapoints that FRT systems can analyze and process in short amounts of time suggest the process is automatic, illustrating the difficulty for the public to properly consent to the data collection process. The parallels between FRT and CSLI suggest that the expansion of the definition of searches and seizures to include CSLI, as seen in Carpenter, should also be applied to FRT. Additionally, by applying the Reasonable Expectation Privacy Test established in Katz, the use of FRT should be considered a search under the Fourth Amendment, therefore requiring a warrant. Although individuals may be out in public, there is a basic expectation they are not being unreasonably monitored, especially for the use of their biometric data. Katz established that Fourth Amendment protections depend on a reasonable expectation of privacy. While courts have traditionally placed limited expectations of privacy in public spaces, the widespread use of biometric technologies such as FRT challenges this notion. As a result of these technological advances, courts should reconsider whether individuals retain a reasonable expectation of privacy in their biometric data, even when exposed in public, like in the case of Qeyeon Tolbert. Without clear expectations on the standards of privacy regarding biometric data, unregulated and widespread use of FRT risks resulting in the “tireless and absolute surveillance” that Chief Justice Roberts warns against in Carpenter. 

Ultimately, State v. Tolbert demonstrates the discrepancy between technological advancements in the modern age and the constitutional precedents that must be thoroughly revisited to properly regulate them. While the Eighth District Court of Appeals upheld the validity of the warrant, the court failed to acknowledge the questions surrounding FRT’s appropriate use and suggest legislative regulation of FRT as an investigative tool. The US Supreme Court in Carpenter demonstrated how to apply constitutional principles in the age of technology by expanding the interpretation of the Fourth Amendment. In recognizing the difficulty of the public to consent and opt out of CSLI data collected from cell phone use, Carpenter acknowledges how technology forces a reimagination of the expectations and protections of privacy. Therefore, the Supreme Court defined CSLI as a search under the Fourth Amendment to protect the individual’s rights. This line of reasoning should be applied to FRT. However, FRT presents an even more pressing concern compared to CSLI. Unlike CSLI, which tracks information over time, FRT allows fast identification matches and large volumes of biometric data collection and storage. As of 2019, the Federal Bureau of Investigation (FBI) can search or request to search databases of the Department of States and Department of Defence in twenty-one states. These databases contain hundreds of millions of photos, and often, individuals are unaware of how and why their biometric data is being collected. If individuals are unaware their biometric data is being collected and stored, they cannot have voluntarily surrendered it to a third party. As a result, law enforcement’s reliance on the third-party doctrine to conduct warrantless FRT searches lacks a sound constitutional basis.  If left unregulated, this raises greater Fourth Amendment concerns regarding unreasonable searches and seizures, as seen in State v. Tolbert, potentially resulting in mass surveillance due to government overreach. 

To preserve the integrity of the Fourth Amendment, as technology becomes more integrated into our country’s governance, courts should apply the reasoning of Carpenter to regulations on FRT as an investigative tool. This would recognize the use of FRT to verify and identify individuals as a search under the Fourth Amendment, therefore requiring a warrant to obtain FRT matches. Doing so would facilitate a balance between the benefits of FRT in assisting law enforcement activity, and the constitutional right of the individual to be free from excessive or unnecessary government encroachment. This argument does not just stop at FRT. As surveillance technology continues to evolve, the application of the Fourth Amendment must evolve in tandem; otherwise, the constitutional guardrails against unreasonable searches become increasingly invisible in the face of technological advancements. 

Edited by Jasmine Lianalyn Rocha.

This piece was reviewed and finalized by Gabi Fabozzi, Qizhen (Kiara) Ba, and Jasmine Lianalyn Rocha.