Court Says 10 Weeks Of Warrantless Surveillance Is Perfectly Constitutional

from the timcushingunexpectedlysideswithcops.com dept

How long can the government surveill your property without a warrant? According to the Sixth Circuit Court of Appeals, pretty much indefinitely.

Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother’s rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.

It’s hard to fault the logic of this conclusion, even if it does seem the ATF’s surveillance bumped up against the edges of the Fourth Amendment. What happened in aggregate was not a violation because no individual aspect of it crosses over the “expectation of privacy” line. An ATF agent with a camera filming from across the road wouldn’t have violated Houston’s privacy, even if the agent could only do so for a single 8-hour shift.

Ten weeks of surveillance is nothing more than 10 weeks of back-to-back, round-the-clock 8-hour shifts. US courts have often stated that rights violations cannot spring into existence on their own. The aggregate is a sum of smaller parts and if none of the “smaller parts” are a violation of Fourth Amendment rights, then 1,680 hours of surveillance by camera is no different than 8 hours of surveillance by an agent. Houston’s property could be viewed from the road. The camera on the light pole may have been a bit higher than eye level, but it provided agents with nothing that could not have been observed by the naked eye at that height.

We’ve seen this same discussion in disputes over automatic license plate readers. Vigilant — a producer of said cameras — argued it had a First Amendment right to photograph license plates on vehicles travelling public roads. The courts certainly wouldn’t deny an individual the right to do the same as there’s no expectation of privacy afforded to vehicles on public roads. If a person can take a few hundred license plate pictures a day, then Vigilant is well within its rights to take millions of pictures a day, all over the country.

For that matter, there are any number of government-controlled cameras observing public areas and buildings — generating weeks or years of surveillance that covers the comings and goings of far more people than the ATF’s camera did here.

Over at Prawfsblawg, Jonathan Witmer-Rich poses a hypothetical question that seeks to tie this decision to the limitations of physical surveillance.

Metaphysical Fourth Amendment question: how long could a tiny ATF agent sit atop a telephone pole?

Today the Sixth Circuit handed down a notable opinion squarely addressing the question, reserved in United States v. Jones, 132 S.Ct. 945 (2012), of how many ATF agents can fit on the head of a telephone pole whether longer-term surveillance by law enforcement infringes on a reasonable expectation of privacy—thus triggering Fourth Amendment protection.

Witmer-Rich’s arguments, like the defendant’s, ties the Fourth Amendment violation to the length of the surveillance, rather than its nature. His hypothetical question about ATF agents on telephone poles isn’t just a pithy turn of phrase. It’s directly invoked in the majority’s rejection of Houston’s arguments.

Furthermore, the long length of time of the surveillance does not render the video recordings unconstitutionally unreasonable, because it 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.

The court also finds that just because it is possible for law enforcement to engage in “in person” surveillance, nothing about the law requires them to utilize this option, rather than install cameras without seeking warrants.

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.

No warrant was sought during the first ten weeks of surveillance, but one was after that, as a result of another Sixth Circuit decision in which the justices expressed “some misgivings” about long-term, warrantless surveillance.

Though the law does not require law enforcement agencies to bypass more efficient surveillance methods, the budging of the needle back towards Fourth Amendment protections suggests agencies should err on the side of caution. After all, if agencies can’t come up with enough probable cause to acquire a warrant, it hardly seems reasonable they should be allowed to engage in something that looks more like a fishing expedition than an investigation. The ATF only found seven instances in which Houston displayed firearms he wasn’t supposed to have in his possession in 10+ weeks of footage. The camera may have been more efficient in terms of cost and man-hours, but the end result hardly suggests Houston was worth “watching” for the better part of three months.

The dissenting opinion, written by Judge Rose, makes some good points but, unfortunately, it’s not enough to overcome Fourth Amendment-related precedent. Rose dislikes the extended period of surveillance, which brings the ATF’s actions very close to other actions courts have considered constitutionally questionable.

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.”

Rose also points to the Jones decision as indicative of the ATF’s overreach. But the Supreme Court’s decision in this case was less than definitive. No bright line conclusion was reached and the tentative wording in the opinion only suggested extended surveillance should be accompanied by a warrant. The court never specifically defined “long term.” Further, the case was tied to loctation tracking rather than static observation and the installation of a law enforcement surveillance device on a private citizen’s personal property (the suspect’s car), rather than observance of an area (a yard visible from a public street) that has historically never been afforded a reasonable expectation of privacy.

Any suggestion — like Witmer-Rich’s proposed three day rule (warrants for anything beyond that) — would be completely arbitrary and unable to be resolved with previous caselaw or the lack of a reasonable expectation of privacy in public areas. If such a limit was applied, it would be comparable to telling police officers they could look into someone’s yard for three days in a row, but start averting their eyes on the fourth.

As much as I don’t like the fact that the government can conduct warrantless surveillance of this type for an extended period of time, I don’t see how this can be resolved without setting new standards based on nothing more than the feeling this is wrong.

Judge Rose makes more sense when calling out the majority’s “warrants let the bad guys win” hyperbole.

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.

While we’d certainly prefer law enforcement agencies seek warrants in edge cases like these, there’s nothing in the Constitution — as applied to the surveillance of a public area — that requires one. A visible yard can be viewed by anyone for any length of time — even a tiny ATF agent perched on top of a telephone pole for nearly three months.

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Comments on “Court Says 10 Weeks Of Warrantless Surveillance Is Perfectly Constitutional”

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46 Comments
Ehud Gavron (profile) says:

Playing the odds...

If you have video of a man from birth to indictment you will have evidence of a criminal act committed.

LEOs “could get a warrant” but IN THAT WARRANT law enforcement would need to specify exactly what criminal events they are investigating.

That is one of the protections granted by the 4th Amendment. It prevents that “video of a man’s life” looking for a crime, instead requiring LEOs to specify the crime and then attempt to locate evidence it *HAD* occurred, not that *some crime of any time* *will* occur.

The Fourth Amendment seeks to protect us from such a fishing expedition. It is unfortunate that the Court has elected to disregard these protections. It’s not unusual in our FOIA-ignoring statute-offending police/security state and the-people-be-damned. It’s just not how the Constitution is read when read with the eyes of those who don’t want to repeat the past.

E

tqk (profile) says:

Re: Playing the odds...

The Fourth Amendment seeks to protect us from such a fishing expedition. It is unfortunate that the Court has elected to disregard these protections.

I don’t agree. It constrains how the authorities may lawfully fish. If this camera was pointing into a window filming what happened inside, that’s another thing. This guy was walking around in plain sight with an easily seen weapon. If you’d been there at that time, you’d have seen it. If a LEO were there at the time, they might be seen and that would have tipped off the perp.

I’ve no complaint against this ruling. Don’t do things in public view if you don’t want them to be seen.

Anonymous Coward says:

Re: Re: Playing the odds...

Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.

No need for anyone to climb up to the crows nest, we can see just as much from down here.

That One Guy (profile) says:

If 'No badge' = 'not legal', get a warrant

One way to look at it would be to ask if anyone else could do the same thing, and have their actions be legal. If a non-law enforcement individual set up a camera at the top of the pole and that would be considered legal, then the actions of the police would probably fall within the law. If however a random person could not do the same and have it be legal, then a warrant should be required.

Anonymous Coward says:

Re: Re: If 'No badge' = 'not legal', get a warrant

…warrantless search legal as long as I can climb the public utility pole and mount my privately owned camera there…

In my area utility poles are NOT public; they are owned by the various utility companies who have to file for permits and in some cases zoning variances just to erect the poles. Yes, even government utilities have to file for permits and variances. Many communities now require all utilities be buried but existing poles are grandfathered. The only new poles in my lifetime are the cel towers and high voltage (over 600) electric.

But no matter the owner the laws prohibit placing anything upon the poles not related to the utilities. I’ve seen crews going around removing signs that were placed upon poles not approved by the utilities. The law actually provides for fines but I’ve never heard of any assessed.

Quiet Lurcker says:

4th Amendment Maximialist's Take

This decision was completely wrong.

What made the cops think the guy was or would or might be at his brothers property and in possession of weapons?

If the cops had reason to suspect he was in possession of weapons at his brother’s farm, why didn’t they apply for a warrant? If the evidence wasn’t enough but they were still that anxious to nail their suspect, why didn’t they simply raid the place and hide behind any of the numerous loop-holes available to the cops?

The fact they went to the effort to put the camera there in the first place smells of desperation on the part of the cops.

But this is not what made the surveillance unconstitutional.

What made it unconstitutional was the fact it was the brother’s farm.

Was the brother suspected or known to be involved in criminal activity?

If the answer to that question is ‘no’, then the cops had no business watching the property in the first place, warrant or no.

Whatever (profile) says:

Re: 4th Amendment Maximialist's Take

“If the cops had reason to suspect he was in possession of weapons at his brother’s farm, why didn’t they apply for a warrant? “

The space between “have a feeling” and probably cause is actually pretty high. Just a feeling, an inkling, perhaps “rumor on the street” sort of thing just doesn’t add up to a warrant. Yet, it does add up to a reason for additional surveillance, which may turn up evidence which could be used to build a case, and give the probably cause required for a warrant.

“What made it unconstitutional was the fact it was the brother’s farm. “

Doesn’t matter if it was the Governor’s farm. If what they are observing is in view from a public space, it’s fair game. The only legal question here is that of using technology which allows them to keep an eye (from a public location) for longer than they might with just officers. The court correctly figured out that if they can watch for one minute, they can watch for essentially an infinite number of minutes. The use to technology is moot, except that it likely provides a better record of what was seen.

Watching a property (or watching a car, or whatever) from a public location is black letter law legal. It’s open and shut really.

nasch (profile) says:

Re: Re: 4th Amendment Maximialist's Take

If the cops had reason to suspect he was in possession of weapons…

The space between “have a feeling” and probably cause is actually pretty high. Just a feeling, an inkling, perhaps “rumor on the street” sort of thing just doesn’t add up to a warrant.

Do you enjoy making up stuff to put in people’s mouths?

Peter says:

Where is the line?

The problem with the ruling is that it does not draw a line. Leaving aside the question of how long, the ruling does not even look at the question of when.

Previously the whole surveillance thing could be largly self-administered through the practical difficulty and cost. Surveillance would only be conducted where you were reasonably certain of a result within a limited timeframe. Anything else was just not cost effective. There was therefore no real need to question its legality.

Now with modern technnology this self limiting has been removed, and the lack of laws means it is ripe for abuse. What is there to stop anyone being subject to surveillance for any length of time for any reason?

That question is what these Justices failed to consider.

Mason Wheeler (profile) says:

I don’t really see the problem here. Does it take a warrant to run a stakeout? This is not indiscriminate mass surveillance we’re talking about; it was a single camera targeted at a single bad guy, watching and looking for evidence. (You know, exactly the sort of thing Techdirt says we need to be doing more of with technology, instead of mass surveillance…) And they found exactly what they were looking for, so it’s not like they had it wrong or something. What exactly did the cops do wrong? By Techdirt’s own standards it seems like they did everything right.

nasch (profile) says:

Re: Re: Re: Re:

More like the inverse: you can’t even claim, as a point against it, that they were surveilling an innocent person.

By mentioning that opponents can’t use the subject’s innocence as a point against the search (because he wasn’t innocent) implies that if he were innocent, they could use that against the search.

That’s the flip side of the same coin, and I disagree with that side too. It makes no difference at all whether the person was guilty or innocent, the search was either justified based on the evidence available before it began, or it wasn’t. Saying the person was guilty shouldn’t be used to justify the search, and saying the person was innocent also shouldn’t be used to condemn the search.

Anonymous Coward says:

Re: Re: Re: Re:

“innocent person”

No such thing in the eyes of LEOs everywhere.
You are guilty, you just do not know it yet.
We need these dedicated individuals making sure you criminals stay in line and do not engage in any unauthorized activities. Remember citizens, you need permission from your overlords before doing anything, or face the consequences.

Wyrm (profile) says:

Re: Re:

“And they found exactly what they were looking for, so it’s not like they had it wrong or something.”
Wrong argument there.
This surviving decision can be open for debate, but Justice is about procedures. If law enforcement doesn’t respect the rules, why should anyone else?
Simply ask yourself: does the end justify the means? If so, why should there be any rules when trying to catch criminals?

Anonymous Coward says:

Where's my flying car?

I really like this line:

> … by a camera installed on top of a public utility pole approximately 200 yards away. … the camera recorded the same view of the farm as that enjoyed by passersby on public roads.

I don’t know about you, but MY car doesn’t fly at utility pole height. That, then, is contrary to the truth. Put the camera at ground level, and you’ve got an argument.

Anonymous Coward says:

“Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads”

Yea right when the fuck is 40′ above the road the same view as being on the road ????
When did the gov’t get hover cars and forget to tell the rest of us ????

MarcAnthony (profile) says:

Public observation is casual

A necessary condition of being a passerby—on a road or otherwise—is that your observations are time-limited and coincidental. If law enforcement is engaged in any form of examination that a member of the public could not do in passing, then it’s a search, by definition.

If we reduce the 6th Circuit’s argument to its absurb conclusion, then cameras could be installed outside every private home, trained on us 24/7, and we couldn’t complain. Nobody reasonably expects—or would tolerate—such monitoring.

Anonymous Coward says:

Missing Info

The part of the story that is being left out is this:

Both Rocky and Leon shot two deputies trying to serve a warrant for their arrest.
The deputies had been told not to serve the warrant without the sheriffs permission.
During the trial it appeared that they shot the deputies in self defense.
The jury found them Not Guilty of murder.

The sheriffs department has been wanting revenge ever since. The cops don’t like it if you shoot their own, even if it was justified.

Anonymous Coward says:

Re: Missing Info

I know amazing right
they get to shoot first no questions
Heaven forbid someone shoots back
thank goodness for PCP ;>
{personal claymore Protection}
embedded in my front door 🙂
now all I need is to hook it up to that ring contraption
and know I can leave my dwelling secured when I leave
Less I get run off the road into a snowbank………….

Anonymous Coward says:

Government wants it both ways

The aggregate is a sum of smaller parts and if none of the “smaller parts” are a violation of Fourth Amendment rights, then 1,680 hours of surveillance by camera is no different than 8 hours of surveillance by an agent.

They don’t feel the same way when people are watching them. When Jason Leopold and other prolific FOIA-ers request records, the government has argued that the ‘mosaic’ that the requesters are able to piece together shouldn’t be allowed, even if the individual requests are OK.

Anonymous Coward says:

The lack of a reasonable expectation of privacy is what they are pinning this right to surveil on. However that is very fallacious with regard to a 3 month stakeout.

If I had a property that see’s one person walk past in a week, I would not feel the need for a privacy fence. I would say that one person walking past, ie 15 minutes of possibly being seen in a 10,080 minute period or .15% of the time means that I reasonably expect that what I do on my property is private.

However if someone is standing around outside my property 24 hours a day for a week I would not consider my actions private. In fact I might even take steps such as putting up a privacy fence, closing blinds, etc etc.

I live behind a church parking lot. 6 days a week I have a reasonable expectation of privacy, on that 7th day I’ll pull the blinds if I’m going to walk around naked after a shower because I know that there will be people present and able to look through my windows.

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