Recently, I had a case in California where federal law enforcement officers installed a “pole camera,” or video camera outside a shopping center to monitor alleged criminal activity. They did not seek a warrant to do so. At the same time, I had a case in South Dakota where officers installed the same device, but sought and obtained a warrant first. The difference led me to question whether or not a warrant is, in fact, required for these pole cameras.
Pole cameras can record footage for months at a time, and law enforcement officers can manipulate the cameras to pan or zoom. These can be a useful law enforcement tool to gather information without requiring an in-person presence by officers at all times. But there is some growing support for the argument that they may be subject to Fourth Amendment restrictions.
In United States v. Jones, 132 S. Ct. 945 (2012), law enforcement installed a GPS device without a search warrant on a suspected drug-trafficker’s car, tracking his movements for weeks. The Supreme Court ruled that a warrant was required because the installation of the GPS tracker involved a physical intrusion into the vehicle (constituting a trespass). Five Justices opined that prolonged GPS monitoring violates an individual’s reasonable expectation of privacy (thus requiring a warrant). Interestingly, these Justices were not bothered by short-term monitoring on public roads, but said that the aggregate of long-term monitoring information is an invasion of privacy.
Although Jones involved tracking a suspect’s movements, it could be used to support a broader argument about long-term electronic surveillance. One could contend that under Jones, while officers are free to observe a suspect’s residence from the public streets or a neighbor’s property to see who comes and goes, permanent round-the-clock video surveillance is substantially more intrusive and constitutes a search under the Fourth Amendment.
Most courts that have considered the issue have rejected a defendant’s argument based on the trespass theory that the installation of a pole camera was a trespass under Jones, where the cameras are not on private property. See United States v. Nowka, 2012 WL 6610879 (N.D. Ala. 2012); United States v. Root, 2014 WL 4715874 (E.D. Wash. 2014); United States v. Wymer, 40 F. Supp.3d 933 (N.D. Ohio 2014).
But there is some support for the argument subjecting these pole cameras to the Fourth Amendment under the reasonable expectation of privacy theory. In Shafer v. City of Boulder, 896 F. Supp. 2d 915 (D. Nev. 2012), a pole camera surveilled the defendant’s backyard continuously for 56 days, and the camera was long-range, infrared, and waterproof. The defendant’s backyard was protected by a solid fence and within the home’s curtilage. In a summary judgment context, the court held that the video surveillance of Shafer’s backyard constituted a “search” under the Fourth Amendment.
An interesting federal district court case out of Massachusetts recently ruled that the pole cameras in that case “collected information that permitted the Government to peer into [the defendants’] private lives and constitutionally protected associations in an objectively unreasonable manner.” United States v. Moore-Bush, 381 F. Supp. 3d 139, 143 (D. Mass. 2019) (citing United States v. Jones, 565 U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring)). The court there incorporated the Supreme Court decision in Jones and Carpenter, also noting the unique characteristics of pole cameras, which utilize searchable digitized footage, distinguishing it from ordinary “human surveillance.” Id. at 146-50. In that case the pole cameras were used for eight months and the residence being surveilled was in a “quiet, residential neighborhood in a house obstructed by a large tree.” Id. at 143.
However, when confronted with this question, most courts have ruled that warrantless pole camera surveillance did not violate the Fourth Amendment under the reasonable expectation of privacy theory. For example, a recent federal appellate case, United States v. Houston, 813 F.3d 282 (6th Cir. 2016), found that ten weeks’ surveillance with a camera installed on a utility pole about 200 yards from a trailer used as a residence on a farm did not violate a resident’s reasonable expectation of privacy because the camera recorded the same view of the residence as that enjoyed by people on nearby public roads. The court believed that the Jones case did not require a different result. Interestingly, a concurring opinion in Houston believed that Jones required the officers to obtain a search warrant.
This is a question that this technological question, like Carpenter, may end up in the Supreme Court very soon, and it will be interesting to see how the legal landscape forms before that happens. For now, I would almost always make the argument that these pole cameras necessarily involve Fourth Amendment concerns and a warrant, supported by probable cause, must be obtained to use them.