Colorado Appeals Court: Three Months Of Surveillance Via Pole-Mounted Camera Is Unconstitutional

from the try-to-break-it-up-into-more-constitutional-chunks-I-guess dept

How much warrantless surveillance is too much surveillance? It depends on which court you ask.

Public areas, which include people’s front doors and unfenced yards, have very little in the way of privacy expectations. Consequently, there’s a lot of warrantless surveillance aimed at these areas, usually in the form of pole-mounted cameras. While warrants could be obtained, they usually aren’t. And, in some cases, the surveillance occurs during the early stages of an investigation where enough probable cause hasn’t been established to secure a warrant even if investigators thought they might need one.

In 2014, a Washington federal court judge said six weeks of pole-mounted surveillance was unconstitutional without a warrant. This surveillance wasn’t just passive. The camera could be controlled by officers while it was recording in addition to providing investigators with dozens of hours of recordings. This was too much for the federal court, which suppressed the video evidence obtained with the utility pole-mounted camera.

A couple of years later, the Sixth Circuit Court of Appeals said indefinite surveillance from a pole-mounted camera doesn’t violate the Fourth Amendment. It reasoned that if an ATF agent could spend an 8-hour shift surreptitiously monitoring a suspect’s rural Tennessee home without violating the Constitution, the proxy surveillance that went uninterrupted for ten weeks didn’t violate the Constitution either. What’s Constitutional for eight hours doesn’t suddenly become unconstitutional when it’s 1,680 hours.

Six weeks is bad, ten weeks is OK… and in a case from earlier this year, eight months of continuous surveillance falls on the wrong side of the Constitution. The federal court read the Supreme Court’s Carpenter decision to expand Fourth Amendment protections (specifically, expectations of privacy), even if that case only dealt with cell site location info. Also at play here were the camera’s features, which allowed investigators to remotely access and control the camera, rather than just replay recordings.

A recent decision [PDF] from the Colorado state appeals court sort of splits the difference. More than three months of continuous surveillance by a utility pole-mounted camera is too much for the Constitution to bear. (via FourthAmendment.com)

Like two of the other cases above, the camera’s movement could be controlled remotely by investigators as it recorded. This camera also did something the average passerby couldn’t do (I mean, in addition to staring at someone’s house for 13 weeks straight): it could see above the suspect’s six-foot privacy fence to the end of the driveway near the house’s garage and entrance.

Nonetheless, the government claimed these areas that were hidden behind the privacy fence could be viewed from certain angles by the proverbial “man on the street” the investigators claimed their camera emulated. Photos introduced during the hearing showed the end of the driveway could be viewed through “thin gaps” between the boards of the privacy fence, as well as from exterior stairways of nearby apartments. The court doesn’t think much of these hypotheticals.

We are unpersuaded by the People’s arguments that the area of Tafoya’s driveway behind his privacy fence hypothetically could be seen by a next-door neighbor peering through a small gap in the privacy fence or by the adjacent apartment dweller on a second-story private outdoor stairway (or, for that matter, by someone in a helicopter, or by someone looking through the camera on a drone).

This argument ignores the improbability that a neighbor would peer through a gap in a privacy fence or stand on his or her outdoor stairway for three months at a time. And helicopters and publicly available drones do not remain in flight for three months at a time. Crediting the People’s argument would mean there is no temporal cap on how many months or years the police could have continued the video surveillance of Tafoya’s property.

And for all the concerns about how much long-term surveillance via cell site location data tells the government about their surveillance targets, the court reminds everyone pointing an unblinking eye at someone’s home for weeks at a time is just as invasive. It quotes from a South Dakota Supreme Court opinion:

[t]he information gathered through the use of targeted, long-term video surveillance will necessarily include a mosaic of intimate details of the person’s private life and associations. At a minimum, it could reveal who enters and exits the home, the time of their arrival and departure, the license plates of their cars, the activities of the occupant’s children and friends entering the home, information gleaned from items brought into the home revealing where the occupant shops, how garbage is removed, what service providers are contracted, etc.

[…]

[L]ong-term video surveillance of the home will generate “a wealth of detail about [the home occupant’s] familial, political, professional, religious, and sexual associations.” The recordings could be stored indefinitely and used at will by the State to prosecute a criminal case or investigate an occupant or a visitor.

The evidence — which apparently includes a large amount of drugs — is suppressed and the conviction overturned. The government gets another chance to prosecute but its case appears to rest largely on the surveillance recordings the court says it can no longer use.

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Comments on “Colorado Appeals Court: Three Months Of Surveillance Via Pole-Mounted Camera Is Unconstitutional”

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22 Comments
This comment has been deemed insightful by the community.
That One Guy (profile) says:

Not a difficult concept to grasp, you'd think

This really shouldn’t keep coming up, as it’s beyond simple and you’d think they’d have caught on by now.

If you want to engage in a search or surveillance, get a warrant.

If you’re not sure you need a warrant, ask for one anyway. Doing so requires a minimal amount of time and effort, and it allows a judge to check your work and give a legal second opinion as to whether or not you have sufficient grounds for what you’re asking for.

If you don’t have enough evidence to justify a warrant, you don’t have enough to justify a search and/or surveillance.

Whether it’s laziness or corruption you’d think those with badges would get tired of having cases fall to pieces because they couldn’t be bothered with the most basic parts of the job, but I guess they’ve become accustomed to far too many judges just giving them a pass rather than side with an (accused) ‘bad person’ that ‘doing their job’ is too much work.

This comment has been deemed insightful by the community.
Bergman (profile) says:

Re: Not a difficult concept to grasp, you'd think

If you stand outside a police department, on a completely public sidewalk while holding a video camera, police will come outside and harass you or even arrest you in much of the country.

These same police are usually the ones who insist that they should be able to surveil anyone they want whenever they want, without a warrant. The surveillance they carry out is nearly always more invasive than a guy with a camera on a sidewalk, and nearly always aimed at private property rather than public buildings.

Yet they react as if they had found an in-progress terrorist attack when they see the guy with the camera.

Anonymous Coward says:

Re: Re: Not a difficult concept to grasp, you'd think

Yup
Apparently the LAPD thinks flying a drone over their station is trespassing, and it might invade their privacy – LOL
https://arstechnica.com/tech-policy/2014/08/dont-fly-camera-equipped-drones-over-our-police-stations-lapd-says/

Interesting that LAPD thinks the police station is private property. How do they come to this conclusion, has the state of California privatized their law enforcement? That’s crazy.

That One Guy (profile) says:

Re: Re: Re: Not a difficult concept to grasp, you'd think

Oh that is just too good…

“What concerns us is that they are filming over private property and it’s gated – you’re looking at the layout of the police station, how we operate, personnel license plates,” police Lt. Michael Ling said. “It’s kind of like if it was your house, if they’re flying over your backyard you’d start asking questions about it.”

Ignoring the fact that it’s less like flying over someone’s house and more like flying over their place of work(because it is), that statement practically begs someone to ask if that means they wouldn’t set up cameras to watch someone’s house, or if that magically becomes okay when they do it.

Agammamon says:

Re: Not a difficult concept to grasp, you'd think

. . . . and it allows a judge to check your work and give a legal second opinion

If only that’s what judges actually did. What really happens is they find the most lazy judge to rubberstamp a piss-poorly drafted warrant request and he does so without comment.

OTOH – if he’s going to rubberstamp it anyway, it certainly couldn’t hurt to get that beforehand.

Anonymous Coward says:

We are unpersuaded by the People’s arguments that the area of Tafoya’s driveway behind his privacy fence hypothetically could be seen by a next-door neighbor peering through a small gap in the privacy fence or by the adjacent apartment dweller on a second-story private outdoor stairway (or, for that matter, by someone in a helicopter, or by someone looking through the camera on a drone).

Perhaps the best way to drive this point home is to park a cherry picker in front of the houses of the people arguing this is fine in order to watch what they’re doing in their yards and observe the response.

Anonymous Coward says:

Re: Re:

Perhaps the best way to drive this point home is to park a cherry picker in front of the houses of the people arguing this is fine in order to watch what they’re doing in their yards

Cherry-pickers with large, obvious cameras, livestreaming the front doors of the police chief, mayor, governor, etc. If such a camera isn’t illegal now, it shortly will be.

crade (profile) says:

I don’t exactly get what the judge is getting at or what time has to do with it.. I totally get that you shouldn’t be surveilling people without a warrant.. But a time based cap does seem kinda arbitrary.. It’s not really more invasive to do it for 3 months all at ones than 1 months at a time with gaps in between or depending on the person, maybe 3 months in the summer feel like less of an invasion than 1 week around Christmas.

If technology / whatever advances to the point where it can differentiate between when something interesting / embarrassing is happening and only surveil those specific times you could make your time really short but it’s not really going to make it any less invasive

Anonymous Coward says:

If you’re not sure you need a warrant, ask for one anyway.

I agree completely.

Doing so requires a minimal amount of time and effort…

This (whether fortunately or unfortunately) is not even close to true. An honest application will require significant time to craft–think "two-page essay plus income tax form" level of work from the policeman, a review by a police supervisor or D.A.’s legal team (or probably both), and a judge’s review. Just the work of getting the paper shuffled around to all the right places is non-trivial.

Of course, that’s why you see so many warrants that say "on information or belief" ("that is, either I got this insane notion on my own, or I heard a rumor from someone whose reliability I refuse to vouch for") without presenting any evidence–a lot of overworked judges sign off without looking at the details.

I’m not claiming to know the best answer, but maybe "surveillance warrants must be disclosed to the victim within 1 month after the end of surveillance if no related indictments are laid" might be a step in the right direction (and, of course, perhaps, better judicial oversight–which I claim NOT to know how to obtain.)

That One Guy (profile) says:

Re: Re:

An honest application will require significant time to craft–think "two-page essay plus income tax form" level of work from the policeman, a review by a police supervisor or D.A.’s legal team (or probably both), and a judge’s review. Just the work of getting the paper shuffled around to all the right places is non-trivial.

Compared to what they are trying to get permission for that sounds like pretty minor work to me, but even if it wasn’t I still wouldn’t see a problem. If you’re going to violate someone’s privacy the steps required should be hard, should require a process that strictly limits what can and can not be done, and should require someone to check your work.

R.H. (profile) says:

I don’t know exactly where the line should be drawn on how long the police can perform surveillance on a private residence from a public place without a warrant but, I definitely agree with the court here and I’ll explain why. Firstly, as the court noted, a camera mounted on a utility pole can often see things that aren’t realisticly visible from the street or other public rights-of-way. Secondly, and more importantly, even the best surveillance team will likely slip up somehow over the course of multiple months and the person or people under surveillance will discover that there’s an odd vehicle outside of their home at all hours. That possibility is greatly reduced by a camera mounted on a utility pole. In-person surveillance is what any previous decisions on warrantless surveillance were based so, we’re in need of an update for the modern paradigm.

Agammamon says:

Its kind of paradoxical – but if this were done in the pursuit of real crimes, people would tolerate it.

That its almost exclusively done in the futherance of the bullshit War on Drugs makes normal people recoil from it.

So, the more aggressively LEO prosecute the WoD – and the more power they garner in the process – the more pushback they get.

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