Long-term pole camera surveillance over the fence surrounding defendant’s junkyard violated his reasonable expectation of privacy where the average person couldn’t see over the fence merely walking by. The court differentiates the flyover cases because long-term video surveillance is unusual and not a normal occurrence. United States v. Castro-Valenzuela, 2018 U.S. Dist. LEXIS 99102 (D. Ariz. May 23, 2018) (R&R):
The Court must examine more closely whether Defendant Castro-Valenzuela had a reasonable expectation of privacy in what took place behind the wall of the junkyard when the gate was closed. Although the fence and gate were only 5’4″ tall, they were set back from the road. Therefore, a person walking along the public road or driving by could not see anything directly behind the wall or view all the activities in the junkyard.
The gate almost always was closed when no one was using it to enter or exit. Similarly, the gate to the private business next door was closed for most of the day. The signs on the gate and the trailer indicate that the junkyard was not a business open to the public. In light of all these details, and the fact that Defendant and his invited guests engaged in private behavior in the junkyard, the Court finds he had a subjective expectation of privacy in the junkyard when the gate was closed.
The Court is not aware of any cases in the Ninth Circuit or this District involving a pole camera positioned to allow round-the-clock observation of a privately-owned outdoor area not fully visible from the street. Both parties cite the Brooks case from this District — the government to support its position and Defendant to distinguish it. United States v. Brooks, 911 F. Supp. 2d 836 (D. Ariz. 2012). This Court does not rely on Brooks because, in that case, the area captured by the camera was fully visible to anyone that entered the apartment complex through the unlocked pedestrian gate or from the adjoining open-air arena parking lot. Id. at 843.
The Supreme Court holds that a person does not have a reasonable expectation of privacy from aerial surveillance in lawful airspace (used to identify marijuana plants), even if the area is obstructed from street view. See Ciraolo, 476 U.S. at 213-14; Florida v. Riley, 488 U.S. 445, 450 (1989). The Court relied, in part, upon the fact that “private and commercial flight in the public airways is routine.” Ciraolo, 476 U.S. at 215; see Riley, 488 U.S. at 451 (noting that helicopters flying over at 400 feet are not “sufficiently rare” that a person can reasonably rely on not being observed from that perspective). In contrast, constant video surveillance of private property is not routine. Further, a one-time flight over a property is substantially less invasive than constant video surveillance. See United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (noting that the minimal intrusion of a fly-over does not authorize all possible surveillance). The Ninth Circuit has instructed that when evaluating a person’s expectation of privacy, courts must consider “the severity of the intrusion to which they were subjected” and “hidden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement.” United States v. Nerber, 222 F.3d 597, 602-03 (9th Cir. 2000) (citing Cuevas-Sanchez, 821 F.2d at 251). Defendant Castro-Valenzuela did not knowingly expose the activities of the junkyard, occurring with the gate closed, to constant video surveillance. His expectation to be free from such monitoring in his backyard is one society would recognize as reasonable. See id. at 604 (finding reasonable privacy interest when alone in another person’s hotel room even though a person cannot expect “total privacy” in that space); Cuevas-Sanchez, 821 F.2d at 251.