S.D.Iowa: Video surveillance of an apartment door from a camera planted in a common area was subject to GFE

Officers planted a video camera hidden in a fake fire alarm in defendant’s apartment building hallway aimed at his door to record his comings and goings. The government argues whether this was reasonable doesn’t need to be decided because, even excluding it from the affidavit for the warrant, probable cause remains. True, but also considering the merits of the search, the court finds the good faith exception applies. United States v. Mayo, 2022 U.S. Dist. LEXIS 129555 (S.D. Iowa July 19, 2022):

It does not appear as if the Eighth Circuit has directly addressed the question of whether prolonged use of a surveillance camera is a search under the Fourth Amendment. Two federal courts of appeals have considered a similar question and both have found such surveillance is not a search under the reasonable expectation of privacy theory. In United States v. Tuggle, 4 F.4th 505 (2021), the Seventh Circuit applied existing Supreme Court precedent to hold that pole camera surveillance of a defendant’s home was not a search. The Tuggle Court expressed reservations about its determination, acknowledging that modern camera technology enables government officials to “freely observe citizens outside their homes for eighteen months,” which “challenges the Fourth Amendment’s stated purpose of preserving people’s right to ‘be secure in their persons, houses, papers, and effects.'” Id. at 526. The Seventh Circuit recognized that the Supreme Court did not fully endorse a novel theory of the Fourth Amendment, referred to as the “mosaic theory,” in its recent decision in Carpenter v. United States, 138 S. Ct. 2206 (2018). Absent binding case law requiring them to apply the mosaic theory, Tuggle declined to do so. Id. at 529.

More recently, the First Circuit, sitting en banc, reversed a district court’s order granting a defendant’s motion to suppress based on the use of a pole camera for eight months outside of their residence. United States v. Moore-Bush, 36 F.4th 320 (1st Cir. 2022). However, the en banc court divided on its opinion as to whether the use of such surveillance was a search under the Fourth Amendment. Chief Judge Barron writing for himself, Judge Thompson, and Judge Kayatta held that the camera was a search but they reversed the district court based on the good-faith exception, noting that the Government was entitled to rely on previous Circuit precedent which had previously affirmed the use of such surveillance techniques. Id. at 321. In a second concurrence, Judge Lynch, Judge Howard, and Judge Gelpi found that the use of the camera did not violate the Fourth Amendment, asserting that the other concurring judges wrongly applied Carpenter. Id. at 361.

Both Tuggle and Moore-Bush only considered the Fourth Amendment implications under Katz. Defendant also argues that the use of video surveillance was a trespassory search relying on Eighth Circuit precedent regarding the use of a dog sniff in multi-family housing. See United States v. Hopkins, 824 F.3d 726 (8th Cir. 2016); United States v. Burston, 806 F.3d 1123 (8th Cir. 2015). On this issue too, it is apparent that if any constitutional violation occurred, the Davenport Police Department’s “pre-warrant conduct was ‘close enough to the line of validity’ to make their belief in the validity of the subsequent warrant ‘objectively reasonable.'” Cannon, 703 F.3d at 414.

The dog sniffs in Hopkins and Burston are distinguishable from this case. First, a dog sniff requires the physical presence of law enforcement—officer and K9—to execute the search of the curtilage. This is important because the animating concern with video surveillance using an ordinary camera is not what it explicitly reveals but the continuousness in which a camera can surveil. Otherwise, a camera generally does not reveal anything a human could not observe during a lawful surveillance. A dog sniff, however, is much closer to the Supreme Court’s concern about protecting a home’s curtilage. See Jardines, 569 U.S. at 6 (holding the Fourth Amendment right of security within one’s home “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.”).

The use of continuous video surveillance without a warrant appears to be on tenuous constitutional grounds. But, in the absence of federal case law, binding or otherwise, holding that the long-term use of a surveillance camera in a non-private area, the Court holds that, at a minimum, the good-faith exception to the exclusionary rule must apply here.