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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)