Pole camera surveillance of defendant’s house for 21 months didn’t violate Fourth Amendment. He had a subjective reasonable expectation privacy, but it’s not one that society is prepared to recognize as reasonable. The court traces Katz to Jardines, and concludes that this pole camera surveillance was reasonable. Even after this detailed explanation of the law of reasonable expectation of privacy, the court concludes that Davis and the good faith exception would foreclose relief anyway. United States v. Mazzara, 2017 U.S. Dist. LEXIS 178575 (S.D. N.Y. Oct. 27, 2017). This analysis is helpful to all as to how reasonableness should play out:
A. The Pole Camera Surveillance
As previously stated, Mazzara’s suppression motion raises a number of complex and difficult questions regarding the scope of the Fourth Amendment and what constitutes a “reasonable” expectation of privacy in an increasingly digital age. However, for the reasons stated below, this Court concludes that the warrantless video surveillance at issue here did not violate the Fourth Amendment, and therefore Mazzara’s motion is DENIED. Furthermore, even if this Court were to find that a constitutional violation did occur, the Court concludes that the officers conducting the surveillance acted in good faith, reasonable reliance on binding judicial precedent, and therefore the exclusionary rule does not apply.
i. Reasonable Expectation of Privacy
Unlike in Jones and Jardines, the surveillance at issue here did not involve any physical trespass. The Pole Camera was not installed on Mazzara’s property, nor did it monitor, provide a view, or record any activities occurring within Mazzara’s residence. Indeed, it is undisputed that the Pole Camera was located in a place “where [the police] are entitled to be,” Fields, 113 F.3d at 321 (citing Riley, 488 U.S. at 449), and recorded only what a normal passerby could have seen from that location. As a result, this Court must apply the two-part Katz inquiry, asking (1) whether Mazzara manifested a subjective expectation of privacy, and (2) whether society is willing to recognize that expectation as reasonable. See Ciraolo, 476 U.S. at 211.
For purposes of this decision, the Court assumes that Mazzara manifested a subjective expectation of privacy under Katz. First, the record demonstrates [*25] that on May 18, 2016, a wooden fence was erected in front of the Driveway and 1845 West 10th Street. (Govt. Mem. at 5.) The Court may reasonably assume that the fence was erected to shield Mazzara’s activities from at least street-level views, and therefore the fence serves as evidence of some subjective expectation of privacy, at least as of May 18, 2016. See Ciraolo, 476 U.S. at 211-212. Second, Mazzara has specifically challenged the duration of the video surveillance, arguing that he had a subjective expectation that his public actions within the Surveilled Area would not be observed and recorded for as long as they were. (Mazzara Mem. at 12.) Even if Mazzara had no subjective expectation that isolated actions within the Surveilled Area were private, the Court has no reason to disbelieve Mazzara’s proffer that he subjectively believed the aggregate of information revealed by his public conduct during the Surveillance Period was private. Accordingly, the Court must proceed to the second prong of Katz, asking whether society is willing to recognize Mazzara’s subjective expectation of privacy as reasonable.
Generally, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351 (citations omitted). Accordingly, courts have routinely held that “people generally do not have a legitimate expectation of privacy in open and accessible areas that the public is prepared to recognize as reasonable”, Lace, 669 F.2d at 50 (citations omitted), and “[n]o reasonable expectation of privacy inheres in what is left ‘visible to the naked eye.'” Gori, 230 F.3d at 50 (citing Riley, 488 U.S. at 450). Here, the Pole Camera observed and recorded only those actions that were “expose[d] to the public.” It did not provide any view into Mazzara’s home, and did not track or record his movements through any other private spaces. Moreover, construction of the fence on May 18, 2016 does not affect the Fourth Amendment analysis here. As the Supreme Court has held, “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.” Ciraolo, 476 U.S. at 213 (citing Knotts, 460 U.S. at 282). It is undisputed that the Pole Camera was installed in a lawful location, and that the Surveilled Area was “clearly visible” from that location. As such, the fence does little more than evidence Mazzara’s subjective expectation of privacy as of May 18, 2016.
But that is not the end of the Court’s inquiry. If the Pole Camera was only installed for one hour, or one day, or even one week, the Court would have no difficulty concluding that the surveillance did not violate any reasonable expectation of privacy under the Fourth Amendment. But the video surveillance here occurred continuously over the course of approximately twenty-one months. (Mazzara Mem. at 2; Govt. Mem. at 5.) Mazzara’s suppression motion raises legitimate questions regarding whether that sort of continuous video surveillance is consistent with the “aims of a free and open society.” Riley, 488 U.S. at 456-57. Nonetheless, the Court concludes that there was no Fourth Amendment violation here.
Mazzara’s principal argument is that “the aggregate of information garnered by the police from the pole camera surveillance was not something [he] exposed to the public,” even though “much … of what was captured on video … was incrementally visible to a passerby.” (Mazzara Mem. at 13.) As a hypothetical, Mazzara argues that while a passerby might observe him meeting with a woman outside his residence on a single day, the surveillance here allowed police to observe him meeting with the same woman numerous times over the course of twenty-one months, thereby “deduc[ing] that they are in a romantic relationship.” (Id.) According to Mazzara, that “very private fact is only available to the police by the cumulative view of many separate public and private observations” and “[t]he public … was not in a position to arrive at the same conclusion as to the relationship.” (Id. at 13-14.) But Mazzara’s argument is unavailing for at least two reasons.
First, Mazzara is incorrect that the police here were uniquely positioned to collect an “aggregate of information” vis-à-vis the public. There are numerous people—a neighbor, mail carrier, student, or dog walker, just to name a few—that might be expected to pass by the Surveilled Area every day, perhaps even multiple times per day. Those members of the public have a routine and continuous opportunity to observe Mazzara’s public conduct within the Surveilled Area, and thereby “arrive at the same conclusion[s]” as the police. Anyone who has ever had a “nosy neighbor” certainly knows that to be true.
Second, there is no controlling case law that suggests the quantum or type of information collected during otherwise lawful surveillance somehow renders that surveillance unconstitutional. Taking Mazzara’s own example, if the Pole Camera had recorded him meeting with the same woman “dozens and dozens” of times during one particularly intense day, week, or month in his life, is the surveillance suddenly therefore unconstitutional? And at what point would the constitutional line be crossed? After one week, or two? After the camera happens to record six meetings with the same person, or perhaps ten?
There is no principled basis upon which this Court can conclude that the duration of otherwise lawful public video surveillance, standing alone, is of constitutional significance. Such a ruling would have dangerous and largely unknown consequences on law enforcement’s ability to collect evidence regarding certain crimes, particularly those, like the ones charged in this case, that by their nature take place over an extended period of time. The ruling that Mazzara seeks would require law enforcement to make arbitrary decisions regarding when to turn off or disable surveillance cameras that are incrementally recording incriminating evidence. For example, consider a surveillance camera installed outside the known location of a group being investigated as a possible terrorist cell. Every day for a month, the camera records people coming in and out of the building with suspicious materials and new associates. The Fourth Amendment does not and cannot require the police to remove or otherwise disable the camera on day 20 (or 30, or 45, or 60 …) merely because it has been recording “too long”, especially if there are reasonable law enforcement reasons to leave it in place. Additionally, if a surveillance camera on a street corner records evidence of a drug deal, the dealer does not have a valid suppression claim just because the camera had been installed two, four, six months, a year, or two years prior and had filmed continuously since then, capturing repeated images of the dealer’s use of the corner. These are but two simple examples of the worrying and unnecessary confusion that Mazzara’s proposed ruling would inject into Fourth Amendment jurisprudence. There are undoubtedly many more.
Nor does it matter that the Pole Camera here was specifically trained on the outside of Mazzara’s residence. The Supreme Court has repeatedly held that the investigatory purpose of otherwise lawful observation does not render it unconstitutional. See Ciraolo, 476 U.S. at 213-14 (holding that “it was irrelevant that the [police] observation from the airplane was directed at identifying the [marijuana] plants and that the officers were trained to recognize marijuana”); see also Bond v. United States, 529 U.S. 334, 338 n.2 (2000) (“the subjective intent of the law enforcement officer is irrelevant in determining whether that officer’s actions violate the Fourth Amendment”). The relevant inquiry is whether Mazzara had a reasonable expectation that his public conduct would not be recorded for so long, not whether the police subjectively hoped to catch him in the act of committing a crime.
The reality is that society has come to accept a significant level of video surveillance. Security cameras are routinely installed in public parks, restaurants, stores, government buildings, schools, banks, gas stations, elevators, and all manner of public spaces. Additionally, security cameras are increasingly being installed on public streets, highways, and utility poles. On any given day, a person is almost certain to be recorded by at least one security camera, and likely many more. A routinized person might therefore be picked up on the same camera(s) day after day. It is simply unreasonable for any person to believe that their public conduct, as it might be and often is recorded by one of those security cameras, nonetheless should remain private from observation. See Katz, 389 U.S. at 351 (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”) (citations omitted); see also Lace, 669 F.2d at 50 (“[P]eople generally do not have a legitimate expectation of privacy in open and accessible areas that the public is prepared to recognize as reasonable.”); Gori, 230 F.3d at 50 (holding that “[n]o reasonable expectation of privacy inheres in what is left ‘visible to the naked eye'”) (citing Riley, 488 U.S. at 450). Mazzara protests that the Pole Camera recorded his “outdoor interactions with his new born child, his girlfriend, his ex-girlfriend, his friends, his family, and his acquaintances.” (Mazzara Mem. at 2-3.) But Mazzara ignores the obvious risk of conducting such activities in public.
Mazzara’s suppression motion relies in large part on dicta from two concurring opinions in United States v. Jones, 565 U.S. 400 (2012). (Mazzara Mem. at 7-9.) In his Jones concurrence, Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan) concludes that while “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable”, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” 565 U.S. at 430. Justice Sotomayor explicitly agreed with that conclusion, id. at 416, and even the majority left open the possibility that four weeks of continuous surveillance achieved through electronic means “is an unconstitutional invasion of privacy.” Id. at 412. Put together, it certainly appears as though a majority of the Court, at least as of 2012, was prepared to hold that four weeks of warrantless GPS tracking violated the Fourth Amendment.
But the implication of Jones is not easily applied to the facts of this case. First, this Court cannot base its decision on what effectively amounts to a guess regarding how the Supreme Court might decide an issue of first impression. Not only has the composition of the Supreme Court changed since 2012, so has the nature and ubiquity of technology in our everyday lives. In Jones, Justice Alito wrote (and Justice Sotomayor agreed) that “the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations.” Id. at 415. Accordingly, it may be that the Supreme Court’s opinion regarding “societal privacy expectations” has changed in the intervening years. Additionally, the Jones majority noted that Fourth Amendment jurisprudence based on the nature of the crime and/or the duration of surveillance creates “thorny problems,” for instance, is there a constitutional difference between “2-day monitoring of a suspected purveyor of stolen electronics” versus “6-month monitoring of a suspected terrorist?” Id. at 412-13. The Supreme Court may have to address and decide those questions in the future, but it has not done so yet. This Court views the questions as—today—answered in favor of allowing such surveillance rather than drawing arbitrary lines.
Second, the video surveillance at issue here is categorically distinct from the type of warrantless GPS tracking addressed in Jones. Unlike a GPS tracker, which “generates 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 415, a stationary video camera only observes and records whatever happens to cross its fixed line of sight. While it is true that the Pole Camera here recorded all of Mazzara’s public activities within the Surveilled Area, it did not record any of his activities outside the camera’s narrow field of view. Considering that the “Fourth Amendment protects people, not places”, Katz, 389 U.S. at 351 (emphasis added), many of the concerns expressed by the concurring justices in Jones—for instance, that extended GPS monitoring “enables the Government to ascertain, more or less at will, [a person’s] political and religious beliefs, sexual habits, and so on”—don’t apply with equal force here.
For those reasons, the Court concludes that the video surveillance at issue here did not violate any expectation of privacy that modern society is prepared to recognize as reasonable under Katz and its progeny. Accordingly, the video surveillance did not violate the Fourth Amendment, and Mazzara’s suppression motion must be DENIED.
ii. Good Faith Exception to the Exclusionary Rule
Even if this Court were to find that the video surveillance at issue here violated the Fourth Amendment, it would still deny Mazzara’s suppression motion. That is because the officers here had no “knowledge”, and cannot “properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Leon, 468 U.S. at 919. Accordingly, the “deterrence benefits of suppression” do not outweigh the heavy costs of the exclusionary rule, and Mazzara’s suppression motion must be denied on that basis alone. Davis, 564 U.S. at 240.