The Volokh Conspiracy
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The U.S. Court of Appeals for the 6th Circuit has handed down a new ruling on technology and privacy. The question: If the government sets up a video camera on a public utility pole and captures 10 weeks' worth of video of what happened on a suspect's property, is taking the video a "search" under the Fourth Amendment? The answer, from a divided 6th Circuit decision in United States v. Houston: No, it is not.
First, the facts. The Houston brothers had a long-running feud with local law enforcement, which included a shootout between the Houstons and an officer that left a police officer and his civilian ride-along companion dead. The Houstons were charged with murder and claimed self-defense; the jury acquitted them. At some point later on, the police heard reports that the Houstons were often in open possession of guns on their rural Tennessee farm. One of the Houstons had a 2004 conviction for felony evading arrest, which made made possession of a gun illegal.
Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") drove by the farm to see if they could observe the guns from the public road. The agents "stuck out like a sore thumb" at the rural farm, however, so they didn't stay long.
Instead, the ATF agents set up a video camera on a public utility pole about 200 yards from the trailer on the farm where the Houstons spent a lot of their time. The camera shot video continuously for 10 weeks. According to the evidence at trial, the video did not record anything that could not have been observed by watching from a public road. The difference, of course, was that the camera was not noticeable to the Houstons and it recorded continuously for 10 weeks. The camera output revealed evidence of gun possession, which supported warrants to search the residences on the farm. Those searches revealed 25 firearms attributable to the Houston brothers.
A divided 6th Circuit ruled that the 10 weeks of public video surveillance did not amount to a search. Here's the holding from the majority opinion by Judge John Rogers that was joined by Judge Bernice Donald:
There is no Fourth Amendment violation, because Houston had no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads. The ATF agents only observed what Houston made public to any person traveling on the roads surrounding the farm. Additionally, the length of the surveillance did not render the use of the pole camera unconstitutional, because the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations. While the ATF agents could have stationed agents round-the-clock to observe Houston's farm in person, the fact that they instead used a camera to conduct the surveillance does not make the surveillance unconstitutional.
It did not matter that the video camera may have observed what was happening in the "curtilage" area right around the home:
[E]ven assuming that the area near the trailer is curtilage, the warrantless videos do not violate Houston's reasonable expectations of privacy, because the ATF agents had a right to access the public utility pole and the camera captured only views that were plainly visible to any member of the public who drove down the roads bordering the farm. See United States v. Jackson, 213 F.3d 1269, 1280-81 (10th Cir.), vacated on other grounds, 531 U.S. 1033 (2000). Thus, Houston's Fourth Amendment rights were not violated, because he has no reasonable expectation of privacy in what he "knowingly exposes to the public." Katz v. United States, 389 U.S. 347, 351 (1967).
The fact that the surveillance occurred for 10 weeks was also irrelevant:
[I]t was possible for law enforcement to have engaged in live surveillance of the farm for ten weeks. Although vehicles "[stuck] out like a sore thumb" at the property, the ATF theoretically could have staffed an agent disguised as a construction worker to sit atop the pole or perhaps dressed an agent in camouflage to observe the farm from the ground level for ten weeks. However, the Fourth Amendment does not require law enforcement to go to such lengths when more efficient methods are available. As the Supreme Court in United States v. Knotts explained, law enforcement may use technology to "augment the sensory faculties bestowed upon them at birth" without violating the Fourth Amendment. 460 U.S. 276, 282 (1983). The law does not keep the ATF agents from more efficiently conducting surveillance of Houston's farm with the technological aid of a camera rather than expending many more resources to staff agents round-the-clock to conduct in-person observations. See id. at 282-84. Nor does the law require police observers in open places to identify themselves as police; police may view what the public may reasonably be expected to view.
Nor did the long-term monitoring implicate the concerns of the mosaic theory concurrences in United States v. Jones:
[U]nlike Justice Alito's concern in Jones that long-term GPS monitoring would "secretly monitor and catalogue every single movement" that the defendant made, id. at 964 (Alito, J., concurring), the surveillance here was not so comprehensive as to monitor Houston's every move; instead, the camera was stationary and only recorded his activities outdoors on the farm. Because the camera did not track Houston's movements away from the farm, the camera did not do what Justice Sotomayor expressed concern about with respect to GPS tracking: "generate a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." Id. at 955 (Sotomayor, J., concurring).
The majority also hinted at an equilibrium-adjustment justification for the ruling, although without saying exactly how it applied in this case:
Moreover, if law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand. The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely. Instead, "[i]nsofar as respondent's complaint appears to be simply that scientific devices . . . enabled the police to be more effective in detecting crime, it simply has no constitutional foundation." Knotts, 460 U.S. at 284.
District Judge Thomas Rose authored a concurrence in the result. Judge Rose was "not convinced" that the majority's Fourth Amendment analysis was correct:
The lead opinion posits that "the ATF . . . could have staffed an agent disguised as a construction worker to sit atop the pole or perhaps dressed as an agent in camouflage to observe the farm from ground level for ten weeks." While United States v. Skinner, 690 F.3d 772, 780 (6th Cir. 2012), implies that the actual practicability of law enforcement observing activity from a public vantage point may not be relevant, this Court has also sifted from the panoply of opinions in United States v. Jones the concern that long-term non-human surreptitious surveillance "is worrisome because 'it evades the ordinary checks that constrain abusive law enforcement practices: "limited police resources and community hostility."'" United States v. Anderson-Bagshaw, 509 F. App'x 396, 422 (6th Cir. 2012)(quoting United States v. Jones, 565 U.S. —-, 132 S. Ct. 945, 956, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring) (quoting Illinois v. Lidster, 540 U.S. 419, 426, 124 S. Ct. 885, 157 L.Ed.2d 843 (2004))).
Also, I find unconvincing the claim that, because this case involves a camera focused on Defendant's house, and not a monitor affixed to a car, the Government cannot gather "a wealth of detail about [defendant's] familial, political, professional, religious, and sexual associations" 132 S. Ct. at 955. Here, familial relations with Defendant's brother and daughter were studied. Surely, in most cases, ten weeks of video surveillance of one's house could reveal considerable knowledge of one's comings and goings for professional and religious reasons, not to mention possible receptions of others for these and possibly political purposes. Also, by constant surreptitious technological viewing of Defendant's house, the Government knew Defendant "occasionally slept" in his trailer. The privacy concerns implicated by a fixed point of surveillance are equal, if not greater, when it is one's home that is under surveillance.
Finally, I do not have the same concern that "if law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand." Expediency in this particular situation is not our concern. It is for the police to work within constitutionally permitted means. Fortunately, no one proposes that law enforcement should "be powerless to thwart such behavior." Law enforcement would have the power to obtain a search warrant, returning to them the upper hand.
Judge Rose nonetheless agreed with the result of the majority because the officers had sufficient probable cause to justify the warrants to search the property based on other monitoring.
For more on this issue, see my 2014 post, Two district courts adopt the mosaic theory of the Fourth Amendment.