N.D.Ohio: Video surveillance of defendant’s back yard where fence was not opaque violated no expectation of privacy

Video surveillance of defendant’s yard from a camera placed on a utility pole where the recordings were watched for hours a day did not violate defendant’s Fourth Amendment rights or any reasonable expectation of privacy because the fence could be seen through. United States v. Anderson-Bagshaw, 2011 U.S. Dist. LEXIS 100000 (N.D. Ohio September 6, 2011):

The video evidence obtained here did not violate Defendant Bagshaw’s Fourth Amendment rights. First, the Defendant did not manifest any subjective expectation of privacy. Where defendants have taken steps to create a private zone within the curtilage of a residence, courts are willing to deem utility-pole surveillance a search within the meaning of the Fourth Amendment. United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) (defendants manifested a subjective expectation of privacy by erecting a ten-foot-high metal fence). Here, however, the backyard of the Bagshaw residence was entirely open to observation from adjacent properties, and the wire-mesh alpaca fence neither hampered these views nor manifests any subjective expectation of privacy.

Moreover, any subjective expectation of privacy Defendant Bagshaw may have had in her open backyard would have been unreasonable. The Supreme Court has expressly rejected an invitation to create “a rule of constitutional dimensions” that backyard conduct “will not be observed by a passing aircraft-or by a power company repair mechanic on a pole overlooking the yard.” California v. Ciraolo, 476 U.S. 207, 214, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). Those are precisely the circumstances presented here, where the view afforded by the United States’ surveillance camera is identical to the view available to the power company’s employee responsible for installing it.