D.Conn.: Pole camera of house not 4A violation

The use of a pole camera watching the front of defendant’s home for nearly three months was not an unreasonable search. Carpenter does lend some weight to his argument, but all Fourth Amendment precedent is against him. United States v. Salaman, 2024 U.S. Dist. LEXIS 133184 (D. Conn. July 29, 2024)*:

Neither the Second Circuit nor the Supreme Court has addressed this issue in a published opinion. Unfortunately for Salaman, however, multiple federal appeals courts outside the Second Circuit have ruled that the prolonged use of a pole camera to surveil the outside of a person’s home does not amount to a “search” for purposes of the Fourth Amendment. See, e.g., United States v. Hay, 95 F.4th 1304, 1317-18 (10th Cir. 2024); United States v. Dennis, 41 F.4th 732, 740-41 (5th Cir. 2022); United States v. Tuggle, 4 F.4th 505, 511 (7th Cir. 2021); United States v. Houston, 813 F.3d 282, 289 (6th Cir. 2016); United States v. Bucci, 582 F.3d 108, 116-17 (1st Cir. 2009). On the other side of the ledger, a few cases from state supreme courts and federal district courts hold to the contrary. See, e.g., People v. Tafoya, 2021 CO 62, 494 P.3d 613, 622-23 (Colo. 2021); State v. Jones, 2017 SD 59, 903 N.W.2d 101, 113 (S.D. 2017); United States v. Vargas, 2014 U.S. Dist. LEXIS 184672, 2014 WL 12982411, at *1 (E.D. Wash. 2014); United States v. Houston, 965 F. Supp. 2d 855, 871-72 (E.D. Tenn. 2013); cf. Commonwealth v. Mora, 485 Mass. 360, 150 N.E.3d 297, 302-313 (Mass. 2020) (use of pole camera was search under Massachusetts constitution).

Although Salaman does not have the weight of precedent in his favor, I think his arguments on their merits are compelling in light of the reasoning and rationale of the Supreme Court’s decision in Carpenter v. United States, 585 U.S. 296, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018). In Carpenter, the Supreme Court ruled that it intruded upon a reasonable expectation of privacy for the government to subpoena a person’s cellphone company for records showing the person’s historical location information over the course of seven or more days. The government “invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.” Id. at 313.

Courts have distinguished Carpenter on the ground that a pole camera reveals information about just one location rather than the whole of one’s movements. Thus, for example, the Seventh Circuit in Tuggle observed that “the stationary cameras placed around Tuggle’s house captured an important sliver of Tuggle’s life, but they did not paint the type of exhaustive picture of his every movement that the Supreme Court has frowned upon.” 4 F.4th at 524.

Fair enough. But, in my view, these courts do not give enough weight to the ways that non-stop pole camera surveillance of someone’s home is even more intrusive than tracking their various locations outside the home.

Start with the fact that the camera focuses on the home. As the Supreme Court has ruled, “when it comes to the Fourth Amendment, the home is first among equals,” and “[a]t the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) (Scalia, J.). True enough, the pole camera does not expose intimacies inside the home, but it burdens a person’s right to retreat to their home if the government tracks their every entry and exit as well as all others whom they may invite to their home.