10th Circuit Appeals Court Says 68 Days Of Pole Camera Surveillance Doesn’t Violate 4th Amendment
from the any-amount-is-fine-actually dept
Well, that’s the way it goes. Courts have been extremely reluctant to disrupt the long-term surveillance plans of law enforcement. If investigators can mount a camera on public property and keep it focused on areas visible by members of the public, no harm, no foul.
Not every court has reached this same conclusion. Notably, one federal court ruled in 2019 that long-term surveillance of someone’s home (even if just the outside of it) implicated the Supreme Court’s Carpenter decision. The Supreme Court took issue with long-term surveillance of individuals, specifically their movements over time as memorialized by their smartphones. Thus, obtaining months or weeks of location data now required warrants.
This court applied Carpenter to eight months of continuous pole camera surveillance, ruling that it had a similar impact on personal privacy.
[T]he Government has no business knowing that someone other than the occupant’s spouse visited the home late at night when the spouse was away and left early in the morning… Nor does the Government have any business tracking a homeowners’ hobbies or regular trips for appointments. Perhaps people would hesitate to have supporters of opposition political parties visit if they knew that the Government might be monitoring their driveway. The continuous video taken by the Pole Camera thus threatens to chill these religious, political, and associational activities.
This decision remains an outlier. Pretty much every other precedential decision says otherwise. That includes the Seventh Circuit Appeals Court saying 18 months of continuous pole camera surveillance isn’t a Fourth Amendment violation, even if it seemed to feel a wee bit bad about reaching that conclusion.
Although we now hold that the pole camera surveillance of the exterior of Tuggle’s home did not constitute a Fourth Amendment search, we are not without unease about the implications of that surveillance for future cases. The eighteen-month duration of the government’s pole camera surveillance—roughly four and twenty times the duration of the data collection in Carpenter and Jones, respectively—is concerning, even if permissible.
No such qualms from the Tenth Circuit, though. This case involves an investigation initiated by the Veteran’s Administration, which (thanks to a tipster) became suspicious Bruce Hay wasn’t quite as disabled as he said he was. So, the VA’s investigators began monitoring Hay as he went about his daily life, hoping to find evidence showing he was wrongfully helping himself to disability payments. (h/t FourthAmendment.com)
Here’s how the VA collected the evidence it used against Hays during his prosecution. From the decision [PDF]:
To investigate Mr. Hay’s mobility, officers feigned an operation involving deer poaching on a nearby farm so that they could monitor Mr. Hay from a closer distance. They also tailed him to medical appointments and other events. For a more robust record of his daily activities, they installed a pole camera on a school rooftop across the street from Mr. Hay’s house. The camera was remote controlled and activated by motion, and it recorded near constant footage of Mr. Hay’s house as visible from across the street. All told, the camera captured 15 hours of footage per day for 68 days.
This was part of an investigation that apparently lasted six years. In that context, maybe 68 days just doesn’t seem like that much? The Appeals Court isn’t worried about how long it lasted, though. That doesn’t really change anything in its analysis.
After first determining that a pole mounted camera aimed at publicly visible areas doesn’t raise Fourth Amendment implications, the court moves on to Hay’s invocation of the Carpenter decision. Hay’s argument is basically this: short-term surveillance may be OK under Carpenter, but the ultimate point of the Supreme Court decision was that long-term surveillance was unconstitutional without a warrant.
According to Mr. Hay, the recording of his house for an extended period of time (68 days in this case) catalogs his habits, patterns, and visitors in a way that ordinary physical surveillance could not duplicate. As he puts it, “the footage obtained painted an intimate portrait of Mr. Hay’s personal life,” including “when he entered and exited his home; who visited him and his family,” and “what Mr. Hay did on his own front porch.” He acknowledges that this activity took place in public but argues that “[w]hile people subjectively lack an expectation of privacy in some discrete actions they undertake in unshielded areas around their homes, they do not expect that every such action will be observed and perfectly preserved for the future.”
The Appeals Court disagrees. According to its take on that historic decision, it wasn’t the length of the surveillance, it was the type of surveillance.
That the surveillance took place over an extended period of time does not change the basic logic of the opinion—camera surveillance of a home visible to passersby does not constitute a search. Nor does Carpenter change the equation.
The Tenth Circuit isn’t alone in reaching this conclusion.
No circuit court has concluded that extended video surveillance of a house is a search under Carpenter.
What can be seen by the public in limited quantities isn’t suddenly a constitutional violation because the watching eye goes 68 days without blinking.
Carpenter acknowledged that individuals have a privacy interest in “the whole of their physical movements.” The pole camera across the street from Mr. Hay came nowhere close to capturing “the whole of his physical movements.” It could only capture his movements at a single location, outside his house. As soon as he left his house, the government could no longer track him by this means.
As the Tenth sees it, the surveillance wasn’t pervasive, in that it was limited to the exterior of the suspect’s house. And it wasn’t retrospective, like the harvesting of historical cell site location data from service providers. It may have been long-term but it didn’t expose anything anyone else in Mr. Hay’s neighborhood would have been able to see (even though they’d have to have stuck around for 68 days to see everything the government saw).
So, nothing to work with there if Hay tries to appeal this. And the final comments on this matter by the Tenth Circuit shows there aren’t going to be any reversals of course in the future. Given the modern day reality of smartphones, body cams, drones, and AI, the future will probably hold fewer Fourth Amendment protections.
As video cameras proliferate throughout society, regrettably, the reasonable expectation of privacy from filming is diminished.
The government gets to keep doing what it’s been doing for years. Sooner or later, an appeals court might take a flier on the Fourth in a long-term surveillance case, but as it stands now, unblinking eyes owned by the government are free to keep watch on anything visible to bystanders or passersby.
Filed Under: 10th circuit, 4th amendment, long term surveillance, surveillance, va
Comments on “10th Circuit Appeals Court Says 68 Days Of Pole Camera Surveillance Doesn’t Violate 4th Amendment”
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Cope and seethe, anarcho-communist.
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Do you have to hold the boot to the side when you’re licking it in order to see the screen when you’re typing these authoritarian missives?
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I dunno, sounds like you’re doing that, McCarthyist.
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shut the fuck up low life troll that is pro surveillance
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I’m very pro-prosecuting-people-for-VA-benefits-fraud, aren’t you?
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🤡🤡🤡🤡🤡🤡🤡🤡
Judge: “Now 68 days of pole camera surveillance is A-okay. But 69 days… oooh! Now that is pushing it!”
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But 69 days… oooh! Now that is pushing it!
Sixty-Nine would indicate something more sinister about “pushing it” to some pearl-clutching conservatives.
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I don’t care what the judges claimed. They are wrong. Violating theconstitution and committing hogh crimes, treason, and seditious conspiracy to vio,ate constitutional rights of the established authority which is We the People, the sovereign citizens, the qualified electors. They are psychos. They would disallow FISA courts if they were not, in addition to just about everything that the government does because nearly all of their policies violate the constitution.
Try standing in front of a cops, fbi agent’s, politician’s, or judges house peering through their window for 68 days and see if they don’t mind.
It is stalking. It is also harrassment to have surveillance cameras aimed at peoples’ homes.
With all of the surveillance cameras in America, over three times as many people in America, probably closer to five times as many people in America, we have over 500,000 missing person reports.
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My comments are being hacked and the hacker is adding typos to my comments.
Re: Re: Repeating a Pertinent Question…
Are you going to admit to being unable to spell yet, or are you going to continue to blame mythical ‘hackers’ for your loss at the last local spelling bee?
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Oh yeah, and make sure that you are wearing a Guy Falks Mask and a long cape while you stand in front of their house for 68 days!
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You’re funny.
You should comment more.
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Oh, wow! Did your mythical ‘hackers’ change your ‘wke’ to ‘lk’, or are you just shit at spelling and so sure we’re as ignorant as you that you believe we also don’t know how the Internet works and won’t realize all your misspellings are entirely your own?
'Especially not if we have anything to say about it.'
As video cameras proliferate throughout society, regrettably, the reasonable expectation of privacy from filming is diminished.
‘… primarily thanks to judges like us who see nothing wrong with long-term government surveillance of the public and treat it as no different than a random citizen filming another citizen so long as they were in the same area, and despite fact that if a private citizen engaged in such long-term filming the target could almost certainly get a restraining order.’
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If the government can do something that would earn a private citizen a restraining order for stalking without a warrant then something is very wrong with either the interpreters of the law or the law itself.
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You know, if I engage in sustained surveillance of an individual just because I don’t believe they’re disable (not that I would, of course), I’d be on the hook for charges of stalking. Time to make employees of government agencies open to the same charges as ordinary citizens?
Well its time to pop up some pole cams to keep an eye on the Judges, just in case they MIGHT be doing something wrong.
I mean their judgement seems suspect and that should be enough of a tip to start an entire investigation into what happens at & around their homes.
And who the fsck needs 6 years to figure out someone is faking a disability?
But then these are the same courts that ruled because someone smiled in a picture during a vacation they weren’t actually depressed so they weren’t really disabled.
And I agree with dude that allowing the agents to provide their own narration of what they thought was happening in the video was wrong. I can show you hours of video where I am moving just fine, but if you don’t have video of when I have problems walking it sure looks like I’m faking & someone saying well he was fine on this day so hes faking really misses the point. Not all disability is visible, not all disability follows the text book examples, sometimes we have a good day but a couple good days vs 200 bad days isn’t something people seem to understand.
But then how many of you have ever had to deal with a Karen demanding you explain your disability to her satisfaction because you’re in a handicapped spot with a handicapped tag but you don’t look disabled to her well trained eye.
Disability secret, when 2 of us are in a car we have to play odds/evens to see which one of us has to limp when we get out of the car to try and repel Karens.
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Oh, I know this feeling exactly. I’m blind, but you wouldn’t believe the number of people who have accused me of lying to them because I use the same vernacular as them, or don’t “behave” like a typical person should according to them… Holy fuck is it infuriating.
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Wait… they think blind people speak differently than them?
o.O
How, exactly, is a blind person supposed to sound, in their mind?
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I see where this is going.
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What you did there, I see it.
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One of my favorite Karen v blind people was the woman who got pissy when she was told her child couldn’t pet the guide dog.
She then saw the blind person in the food court using her phone to listen to reddit. Accused them of faking it, got a mall cop who decided that a Karen saying that she was the expert on who is really blind because she has a blind freind was a good enough reason to try to make the blind patron prove she was blind. Blind person then tried to walk away & Karen tried ripping the dog away from the owner (who reasonably flipped the fsck out) the mall cops (a 2nd useless one showed up to the scene) then bothered to listen to the Karen screaming that she wasn’t really blind & she said Karen could take the dog for her kid to pet.
But then all disabled people are exactly the same, just like all Muslims, all African Americans, all immigrants, etc etc.
Oh look, its the society you get when you just avoid anything different than yourself & don’t have any exposure to them because it might make abled people feel bad about being abled. (I shit you not).
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Anyone interested in reading the story, it’s the first result for the keywords “blind person reddit food court karen” in a google search.
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You mean the fake reddit story that should be on /r/thathappened? Because a story like that would have real press coverage — local news would be desperately trying to talk to the mall, the mall cops, and any witnesses.
Instead we see multiple versions of it on reddit, by multiple people (including the ever popular “this actually happened to my friend’s cousin …”).
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Thats what nakes it such a great story, at no point does anyone reading it ever think oh no a Karen wouldn’t do THAT!
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You’re lacking source links to show whether your story is true or anecdotal (no projectors like the regulars here).
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I know how you feel. I’m neurodivergent, and the amount of times people have claimed that I can’t be what I am because I’m not exactly like their little ‘burden’. Then when I point out that I’m an adult and their kid’s still a child, a major point of difference, they tone police me. Shits.
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Well its time to pop up some pole cams to keep an eye on the Judges, just in case they MIGHT be doing something wrong.
I mean their judgement seems suspect and that should be enough of a tip to start an entire investigation into what happens at & around their homes.
Strangely enough I rather suspect that if a member of the public set up one or more cameras and pointed them at a judge’s house and started recording ‘You have no expectation of privacy over who enters and exits your house and when’ would magically become an invalid argument as soon as it went to court.
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(Because of course I only realize I left out a rather important line after hitting ‘Post Comment’…)
Strangely enough I rather suspect that if a member of the public or a government agency set up one or more cameras and pointed them at a judge’s house and started recording ‘You have no expectation of privacy over who enters and exits your house and when’ would magically become an invalid argument as soon as it went to court.
Yeah, the rights violations should be worrying.
More worrying is that yet again this is what time and money gets spent on instead of giving after actual criminals. Imagine if we pointed a camera at trump residence like this, but of course these tactics are never allowed against the rich and powerful.
Six years? Am I missing something, or would they not likely have saved a fuckton of tax payers’ money by simply ignoring the suspected fraud? Going through that much CCTV alone is a hell of a job, and that’s just a single line item.
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And following him when he went anywhere including medical appointments.
For 6 yrs…. because they got a tip.
If it takes you 6 yrs to come up with enough evidence, I gotta wonder if you are capable of finding your ass with both hands & a map.
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I imagine the reason they stalked the guy for six years is because they couldn’t find any evidence to support the ‘he’s not disabled’ claim but someone involved was too egotistical to accept that they were wrong so dammit they were going to keep watching the guy until they found something!
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Which is why allowing agents to “narrate” what people saw on the videos with what they thought was happening shouldn’t have been allowed.
Well we think while he was out of our sight for 5 seconds he picked up and carried an armored car.
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Or slid a garbage-can sized soda into his vest-pocket…
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Yup, if someone is indeed faking a physical disability, it doesn’t take six weeks to come up with some tangible evidence.
Public. Period
If the camera is in or in public space, it’s fine.
Don’t want a peeper watching? Close your blinds. Photograph me naked all you want, looser. Don’t care
Anyone who does is a criminal or a prude.
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Your irrationally black and white, solipsist perspective continues to be unempathetic, unimaginative, and unsurprising. Fortunately, your unhinged ideas are unrelated to how our society or laws actually operate.
Is the Veteran’s Administration the same thing as the United States Department of Veterans Affairs? If not, but is a non-governmental organization, then this is technically not a violation of the Fourth Amendment even though it is shady as fuck.