A second story pole camera that actually could see into defendant’s house was unreasonable as to that. But, “[b]ecause there is an independent basis for upholding the validity of the search warrant, this Court will not suppress the evidence seized from the Ansel Residence during the execution of that warrant.” United States v. Gilbert, 2025 U.S. Dist. LEXIS 39151 (N.D. Ohio Mar. 5, 2025). Interesting narrative:
Though Gilbert raises compelling arguments about the societal and constitutional concerns surrounding long-term warrantless surveillance via pole cameras, so long as the technology utilized is only used to augment the senses and does not reveal intimate information that would not otherwise be observable by the public, courts have routinely upheld their constitutionality. See, e.g., United States v. Tuggle, 4 F.4th 505 (7th Cir. 2021); United States v. Hay, 95 F.4th 1304 (10th Cir.), cert. denied, 145 S. Ct. 591, 220 L. Ed. 2d 230 (2024); United States v. Gregory, No. 22-12800, 2025 U.S. App. LEXIS 3431, 2025 WL 484576 (11th Cir. February 13, 2025); but see Kyllo, 533 U.S. at 34. While Carpenter did acknowledge a privacy right similar to the one Gilbert is advocating for here, the context in that case was significantly different. In Carpenter, the Justices confronted the fact that cell phones are virtually ubiquitous in modern society, and most individuals carry their cell phone with them everywhere they go. Since CSLI “chronicle[s] a person’s past movements through the record of his cell phone signals,” using CSLI can amount to effectively tailing an individual every day, 24/7 for that period, “provid[ing] an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.” Carpenter, 585 U.S. at 309, 311 (quotation omitted). With CSLI, law enforcement had the ability “travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers,” meaning “police need not even know in advance whether they want to follow a particular individual, or when.” Id. at 312.
This is in stark contrast to the more limited surveillance offered by a pole camera outside of an individual’s home. Whereas CSLI is retrospective, allowing law enforcement to review movements and activities that have already taken place, a pole camera is purely prospective; that is, a pole camera can only record what happens after it is installed. Additionally, pole cameras are stationary, so if the individual leaves the immediate area around their home, these movements and activities would not be captured. Even post-Carpenter, which Gilbert argues is a decisive case that changed how courts should view privacy expectations in public areas under the Fourth Amendment, the Sixth Circuit has upheld pole cameras in public spaces which monitor only what can be observed by a member of the public. See United States v. May-Shaw, 955 F.3d 563 (6th Cir. 2020); United States v. Trice, 966 F.3d 506 (6th Cir. 2020). And this Court is bound by Sixth Circuit precedent.
That does not mean that every use of a pole camera is per se constitutional, either. “At the very core” of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). It is uncontroverted that police may not observe the interior of a home in a way that could not be done by the ordinary passerby without a warrant. Cf. Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”). Here, it is undisputed that the pole camera aimed at the Ansel Residence could see into the second story window of the home, and that this was a view not otherwise observable from the public roadway. ECF 43-1 at 1-2. That the interior of the home was captured by the pole camera makes this case different than May-Shaw or Trice, as the pole cameras in those cases only captured public spaces (as those opinions surely would have mentioned it if the cameras had captured otherwise protected areas). The pole cameras in those cases were upheld because “the cameras observed only what was possible for any member of the public to have observed,” May-Shaw, 955 F.3d at 568-69 (cleaned up), and “there is no reasonable expectation of privacy in the activity of leaving a constitutionally protected area (the home) to an area without constitutional protection” such as the street, Trice, 966 F.3d at 520. In fact, the Government did not cite any case upholding the constitutionality of a pole camera where the camera could observe the interior of the home or an area that could not be seen by a passerby on the street. Because the pole camera was able to view into the home in a way not otherwise observable by the public, and it was set up without a warrant, the pole camera constitutes an unreasonable, and thus unconstitutional, search in violation of Gilbert’s Fourth Amendment rights.
