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.