SD: Two months of pole camera surveillance without even RS violated a REP that society would recognize as reasonable; GFE applies, however

Defendant had a reasonable expectation of privacy that society is now prepared to recognize as reasonable from installation of a pole camera across the street from his house and monitoring it for two months based solely on a tip that he was involved in drugs. The state, however, gets the benefit of the good faith exception because this is the first time this happened. State v. Jones, 2017 SD 59, 2017 S.D. LEXIS 115 (Sept. 20, 2017):

2. Reasonable Expectation of Privacy

[*P32] We next consider whether Jones’s subjective expectation of privacy was reasonable. “After all, his personal desire for privacy alone, no matter how earnestly held, does not trigger the protections of the Fourth Amendment.” Zahn, 2012 S.D. 19, ¶ 23, 812 N.W.2d at 497. The State emphasizes that Detective Rogers could have observed Jones’s movements in the same fashion that the camera captured his movements had the detective or another officer parked a vehicle along the public street. The State also claims that society would not recognize that Jones had an “unfettered expectation of privacy” for his actions outside of his residence.

[*P33] But Jones is not asserting an unfettered right to expect privacy in his movements in public. He is claiming that society would not give law enforcement an unfettered right to use targeted, long-term video surveillance without any regard for or protection of a citizen’s right to privacy. This type of surveillance is different than law enforcement’s warrantless use of pole cameras during Hot Harley Nights in downtown Sioux Falls or during the Sturgis Motorcycle Rally. In Jones’s view, judicial oversight by requiring officers to obtain a warrant ensures that officers do not violate a citizen’s Fourth Amendment right to privacy when using a pole camera to observe activity outside a citizen’s residence.

[*P34] We agree. The government action in this case is markedly different than the government actions in Katz, Ciraolo, and Knotts. Four United States Supreme Court justices recognized as much in comparing the use of a GPS tracking device and 18th-century situations: “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.” Jones, 565 U.S. at 420, 132 S. Ct. at 958 (Alito, J., concurring). Again, the United States Supreme Court left open the question whether long-term surveillance is an unconstitutional invasion of privacy. Id. at 412, 132 S. Ct. at 954 (majority opinion). See, e.g., Brooks, 911 F. Supp. 2d at 842 (recognizing that Jones left open for “some future case” the question whether the Supreme Court “is willing to accept the principle that Government surveillance can implicate an individual’s reasonable expectation of privacy over time”); Garcia-Gonzalez, 2015 WL 5145537, at *3 (recognizing that legality of longer-term video surveillance of an individual’s home or activities has not been decided). And Houston, Bucci, and Jackson, although not binding, did not distinguish society’s expectation of privacy in disconnected and anonymous movements knowingly exposed to the public from society’s expectation of privacy in the whole of one’s movements exposed to the public. The decisions also did not examine how “technology can change those [privacy] expectations.” Jones, 565 U.S. at 427, 132 S. Ct. at 962 (Alito, J., concurring). Even so, Bucci and Jackson were decided before Jones.

[*P35] The indiscriminate nature in which law enforcement can intrude upon citizens with warrantless, long-term, and sustained video surveillance raises substantial privacy concerns, concerns not present in Knotts, Ciraolo, and Vogel. See Garcia-Gonzalez, 2015 WL 5145537, at *8 (listing and discussing cases from courts that have found “Fourth Amendment problems with extended pole camera surveillance”); Vargas, No. CR-13-6025-EFS (order granting a defendant’s motion to suppress evidence obtained from the warrantless use of a pole camera to observe and record the defendant’s home for six weeks). The dissent, however, compares the pole camera used in this case to “video cameras [that] have been in general public use for years, if not decades.” Infra ¶ 60. The dissent also asserts that “law enforcement did not utilize sense-enhancing technology[.]”

[*P36] On the contrary, the pole camera is not a mere video camera and most certainly allowed law enforcement to enhance their senses. The pole camera captured Jones’s activities outside his home twenty-four hours a day, sent the recording to a distant location, and allowed the officer to view it at any time and to replay moments in time. A mere video camera does not accomplish this. More importantly, this type of surveillance does not grow weary, or blink, or have family, friends, or other duties to draw its attention. Much like the tracking of public movements through GPS monitoring, long-term video surveillance of the home will generate “a wealth of detail about [the home occupant’s] familial, political, professional, religious, and sexual associations.” See Jones, 565 U.S. at 415, 132 S. Ct. at 955 (Sotomayor, J., concurring). 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.

[*P37] As we recognized in Zahn, “unfettered use of surveillance technology could fundamentally alter the relationship between our government and its citizens[.]” 2012 S.D. 19, ¶ 31, 812 N.W.2d at 499. It raises the specter of an Orwellian state and unlocks the gate to a true surveillance society. Indeed, the pole camera targeted at Jones’s trailer allowed Detective Rogers to examine at his will and from any location when Jones left his house, how long he was gone, when a guest or multiple guests arrived (and the license plates), when the guests left, when he purchased items or food, when he took out his garbage, etc. These observations revealed the patterns of Jones’s life and were gathered without a neutral judicial official deciding whether law enforcement had probable cause to justify the intrusion.

[*P38] This does not mean that “the advance of technology would one-sidedly give criminals the upper hand.” Houston, 813 F.3d at 290. “We recognize that police must be allowed to use developing technology in the ‘often competitive enterprise of ferreting out crime.'” Zahn, 2012 S.D. 19, ¶ 32, 812 N.W.2d at 500 (quoting State v. Sweedland, 2006 S.D. 77, ¶ 22, 721 N.W.2d 409, 415). But when citizens have a reasonable expectation of privacy, law enforcement must first obtain a warrant. Id.; United States v. Falls, 34 F.3d 674, 679 (8th Cir. 1994) (“[S]ilent video surveillance, conducted consistent with the Fourth Amendment, is authorized[.]”). To conclude otherwise means that law enforcement would be free to place a video camera at any public location and film the activity outside any residence, for any reason, for any length of time, all while monitoring the residence from a remote location by computer or phone.

[*P39] In response, the dissent insists that “the best solution to such concerns is legislative—not judicial.” Infra ¶ 62. It claims this opinion holds that the United States Constitution prohibits “a two-month surveillance of the front of a residence from a public vantage point.” Infra ¶ 62 n.11; accord infra ¶ 52. Thus, according to the dissent, “[i]f the controlling law is to change, such change should come either from the United States Supreme Court or the South Dakota Legislature.” Infra ¶ 63.

[*P40] On the contrary, this case concerns long-term, remote surveillance, and there is no controlling law on that question. More importantly, the question whether a search occurred in this case in violation of the Fourth Amendment is judicial—not legislative. The South Dakota Legislature has not yet enacted legislation governing law enforcement’s use of pole cameras for surveillance; therefore, this case implicates the Katz test. See Jones, 565 U.S. at 412-13, 132 S. Ct. at 954 (explaining that the Katz test will be necessary to “grapple with” the question).

. . .

3. Good Faith Exception to the Exclusionary Rule

. . .

[*P48] Here it is troubling that Detective Rogers had the pole camera installed solely in response to a tip that Jones may be dealing large quantities of marijuana. Detective Rogers did not independently acquire suspicion of criminal activity. He simply received the tip and installed the pole camera to be directed at Jones’s trailer. But this is not to say Detective Rogers acted in bad faith or that suppression of the evidence would deter law enforcement wrongdoing. The circuit court found that “Detective Rogers was not aware of any prior uses of pole cameras by law enforcement where a search warrant was required prior to its installation.” Based on the facts of this case, Detective Rogers acted reasonably, and the circuit court did not err when it denied Jones’s motion to suppress based on the good faith exception to the exclusionary rule.

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