CA6: Ten weeks of pole camera surveillance on rural property no Fourth Amendment violation

The Sixth Circuit distinguishes Anderson-Bagshaw and holds ten weeks of pole camera surveillance on rural property violated no reasonable expectation of privacy. “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.” United States v. Houston, 14-5800 (6th Cir. Feb. 8, 2016):

A. No Fourth Amendment Violation

There is no Fourth Amendment violation, because Houston had no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads. The ATF agents only observed what Houston made public to any person traveling on the roads surrounding the farm. Additionally, the length of the surveillance did not render the use of the pole camera unconstitutional, because the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations. While the ATF agents could have stationed agents round-the-clock to observe Houston’s farm in person, the fact that they instead used a camera to conduct the surveillance does not make the surveillance unconstitutional.

This conclusion is supported by California v. Ciraolo, 476 U.S. 207 (1986), in which the Supreme Court upheld warrantless aerial observations of curtilage, explaining that the Fourth Amendment does not “preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.” Id. at 213. While several of the videos show Houston standing in open fields, an area in which the recordings certainly do not violate his reasonable expectations of privacy, United States v. Dunn, 480 U.S. 294, 300-03 (1987); Anderson-Bagshaw, 509 F. App’x 396, 403-04 (6th Cir. 2012), other videos show Houston standing near the trailer, an area that at least arguably qualifies as curtilage. Nonetheless, even assuming that the area near the trailer is curtilage, the warrantless videos do not violate Houston’s reasonable expectations of privacy, because the ATF agents had a right to access the public utility pole and the camera captured only views that were plainly visible to any member of the public who drove down the roads bordering the farm. See United States v. Jackson, 213 F.3d 1269, 1280-81 (10th Cir.), vacated on other grounds, 531 U.S. 1033 (2000). Thus, Houston’s Fourth Amendment rights were not violated, because he has no reasonable expectation of privacy in what he “knowingly exposes to the public.” Katz v. United States, 389 U.S. 347, 351 (1967).

Houston argues that the immediate area around the trailer and Houston’s home were not readily visible to passersby, because blue tarps blocked the trailer doors and foliage obstructed Houston’s home. However, while the view of the trailer and his home may have been blocked, it was equally blocked from the view of the camera as from the view of passersby. There is no evidence that the camera was able to see through the tarps or into the interior of the trailer. The Supreme Court in Ciraolo stated clearly that “the mere fact that an individual has taken measures to restrict some views of his activities” does not “preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.” 476 U.S. at 213.

Without citing the record, Houston alleges in his opening brief that it is “questionable” whether the view from atop the utility pole was the same as the view from the ground, and then later in his reply brief Houston alleges that the areas recorded by the camera definitely could not have been viewed by law enforcement officers standing on public ground. However, even if the view from a telephone pole somehow must be the same as the view from a public road, Special Agent Dobbs testified during the trial that the views from the camera and from the public roads were, in fact, the same, and there does not appear to be any evidence in the record to the contrary. The district court’s factual finding in its order denying Houston’s suppression motion that the camera recorded the same view enjoyed by an individual standing on public roads was thus not clearly erroneous.

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. 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.

Moreover, even if it were not practical for the ATF to conduct in-person surveillance for the full ten weeks, it is only the possibility that a member of the public may observe activity from a public vantage point-not the actual practicability of law enforcement’s doing so without technology-that is relevant for Fourth Amendment purposes. Our cases have so held. See United States v. Skinner, 690 F.3d 772, 779 (6th Cir. 2012); United States v. Forest, 355 F.3d 942, 951 (6th Cir. 2004), vacated on other grounds, Garner v. United States, 543 U.S. 1100 (2005). In Forest, DEA agents lost visual contact of the defendant as he drove on public highways. 355 F.3d at 951. To reestablish the defendant’s location, the agents called the defendant’s cell phone and hung up before it rang in order to “ping” the defendant’s physical location. Id. Although the agents could not maintain visual contact, we held that the access of the defendant’s cell phone data was not a search under the Fourth Amendment, because it was possible for any member of the public to view the defendant’s car. Id. Similarly, in Skinner, we upheld the warrantless use of cell phone pinging to track the defendant’s location on public roads even though law enforcement never made visual contact with the defendant and did not know his identity, because the defendant’s movements “could have been observed by any member of the public.” 690 F.3d at 779. Here, as in Forest and Skinner, the length of the use of the camera is not problematic even if the ATF could not have conducted in-person surveillance for the full ten weeks, because any member of the public driving on the roads bordering Houston’s farm during the ten weeks could have observed the same views captured by the camera.

In arguing that the length of the surveillance period rendered the use of the pole camera unconstitutional, Houston relies on Anderson-Bagshaw, an unpublished opinion, in which we did not rule on the issue but expressed “some misgivings” about permitting warrantless pole camera surveillance of an individual’s backyard for over three weeks. 509 F. App’x at 405; see also 509 F. App’x at 420-24 (Moore, J., concurring). Houston also cites United States v. Jones, in which five Justices appeared willing to rule that warrantless long-term GPS monitoring of an automobile violates an individual’s reasonable expectation of privacy. 132 S. Ct. 945, 964 (Alito, J., concurring); id. at 955-56 (Sotomayor, J., concurring). However, unlike Justice Alito’s concern in Jones that long-term GPS monitoring would “secretly monitor and catalogue every single movement” that the defendant made, id. at 964 (Alito, J., concurring), the surveillance here was not so comprehensive as to monitor Houston’s every move; instead, the camera was stationary and only recorded his activities outdoors on the farm. Because the camera did not track Houston’s movements away from the farm, the camera did not do what Justice Sotomayor expressed concern about with respect to GPS tracking: “generate[] a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. at 955 (Sotomayor, J., concurring). Indeed, we recognized as much in Anderson-Bagshaw, the case upon which Houston relies, when we stated that “it may be that the privacy concerns implicated by a fixed point of surveillance are not so great as those implicated by GPS tracking.” 509 F. App’x at 405. Thus, notwithstanding the concurrences in Jones and dicta in our unpublished opinion, the results in Knotts, Forest, and Skinner indicate that long-term warrantless surveillance via a stationary pole camera does not violate a defendant’s Fourth Amendment rights when it was possible for any member of the public to have observed the defendant’s activities during the surveillance period.

Moreover, 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. The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely. Instead, “[i]nsofar as respondent’s complaint appears to be simply that scientific devices … enabled the police to be more effective in detecting crime, it simply has no constitutional foundation.” Knotts, 460 U.S. at 284.

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