CA6 is troubled by 3 weeks of constant video surveillance of backyard under Jones but finds it harmless

The Sixth Circuit is troubled by three weeks of constant video surveillance of defendant’s backyard by a pole camera in light of Jones and its trespass holdings. “We are inclined to agree with the Fifth Circuit that ‘[t]his type of surveillance provokes an immediate negative visceral reaction.’” Nevertheless, the court finds the error, possible error harmless and doesn’t have to decide it. United States v. Anderson-Bagshaw, 509 Fed.Appx. 396 (6th Cir. 2012):

Since the “backyard” was visible from a publicly accessible location, the government agents were constitutionally permitted to view whatever portions of it were visible from this point. See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”). The government agents never physically invaded the “backyard.” They merely observed it from a point where they had a right to be. See United States v. Jackson, 213 F.3d 1269, 1281 (10th Cir. 2000), judgment vacated on other grounds by Jackson v. United States, 531 U.S. 1033 (2000) (holding that using pole cameras to view outdoor areas surrounding a home and easily observable by people passing by does not violate the Fourth Amendment); United States v. Jenkins, 124 F.3d 768, 773-74 (6th Cir. 1997) (recognizing the difference between physical invasion of curtilage and “visual inspection from a lawful vantage point”).

Nonetheless, we confess some misgivings about a rule that would allow the government to conduct long-term video surveillance of a person’s backyard without a warrant. Few people, it seems, would expect that the government can constantly film their backyard for over three weeks using a secret camera that can pan and zoom and stream a live image to government agents. We are inclined to agree with the Fifth Circuit that “[t]his type of surveillance provokes an immediate negative visceral reaction.” United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (stating in dicta that using a pole camera to view curtilage over a 10-foot fence constitutes a Fourth Amendment search). We also note that Ciraolo involved a brief flyover, not an extended period of constant and covert surveillance.

Furthermore, it appears that at least five Justices of the Supreme Court share our concerns about certain types of long-term warrantless surveillance. See United States v. Jones, 132 S. Ct. 945 (2012) (Sotomayor, J., concurring and Alito, J., concurring in the judgment). But Jones involved GPS tracking, and it may be that the privacy concerns implicated by a fixed point of surveillance are not so great as those implicated by GPS tracking. The camera revealed only Bagshaw’s activities outside in her yard—a fixed space which was open to public view. It did not “generate[] a precise record of [her] public movements that reflect[ed] a wealth of detail about her familial, political, professional, religious, and sexual associations” like a GPS device would do. See id. at 955 (Sotomayor, J., concurring). Ultimately, since we hold that any possible Fourth Amendment violation here would be harmless, we decline to decide whether long-term video surveillance of curtilage requires a warrant.