Many law enforcement officers, including those in five of North Carolina’s six largest cities, are or soon will be wearing body cameras. The prevailing view is that the use of such cameras doesn’t constitute a Fourth Amendment search because the cameras record only what an officer is already able to see. This post considers whether the increasing adoption of body cameras and other data-collection technologies could eventually result in body camera recordings being considered searches under the so-called mosaic theory of the Fourth Amendment.
The prevailing view. There aren’t many cases about body cameras specifically, but law enforcement officers have been using cameras to record still images and videos for decades. Courts generally have ruled that when an officer uses a camera to record something that is already visible to the officer, the recording does not interfere with a privacy or a possessory interest, and so does not implicate the Fourth Amendment.
Long list of cases adopting the prevailing view. The following cases illustrate that the prevailing view has been adopted by state and federal courts across the country and over a long period of time. United States v. Mancari, 463 F.3d 590 (7th Cir. 2006) (“‘[T]he recording of visual images of a scene by means of photography does not amount to a seizure because it does not ‘meaningfully interfere’ with any possessory interest.’ . . . The government was therefore entitled to make a photographic record of the discovery of the [evidence] in a place that the police were lawfully entitled to observe.”); Bills v. Aseltine, 958 F.2d 697 (6th Cir. 1992) (“[T]he recording of visual images of a scene by means of photography does not amount to a seizure because it does not ‘meaningfully interfere’ with any possessory interest. Thus, under the Supreme Court’s reasoning, photographs taken by the police officers in this case would not constitute a seizure. Because the police officers in this case were properly on the Bills’ premises, they could record by photography scenes presented to their plain view.”); United States v. Taketa, 923 F.2d 665 (9th Cir. 1991) (“Video surveillance does not in itself violate a reasonable expectation of privacy. Videotaping of suspects in public places, such as banks, does not violate the [F]ourth [A]mendment; the police may record what they normally may view with the naked eye.”); United States v. Espinoza, 641 F.2d 153 (4th Cir. 1981) (“The search warrant having been a valid one, it follows that Agent Dauwalder had the right to be in the positions which afforded him a plain view of the scenes photographed at J-E’s warehouse. He articulated in his testimony, as required by Warden v. Hayden . . . the nexus between those scenes photographed as mere evidence and the criminal activity under investigation. Agent Dauwalder did not exceed the scope of the warrant by making the photographs of what he saw in plain view and to that extent ‘seizing’ those views themselves as evidence.”); Lord v. State, 676 S.E.2d 404 (Ga. Ct. App. 2009) (“[Officers] photographed only those items that were visible [in plain view] during the scope of the initial welfare search. Consequently, the photographs were legally seized and, thus, admissible.”); State v. Spears, 560 So.2d 1145 (Ala. Ct. Crim. App. 1989) (generally adopting the view that officers may photograph anything in plain view, and collecting cases); State v. Eacret, 595 P.2d 490 (Or. Ct. App. 1979) (cited in State v. Jolley, 312 N.C. 296 (1984)) (“Being lawfully on the premises, the officers were entitled to photograph and seize evidence in plain view.”).
The mosaic theory. The mosaic theory of the Fourth Amendment is the idea that an accumulation of actions by law enforcement, none of which individually intrude upon a reasonable expectation of privacy, may together constitute a Fourth Amendment search. This theory was eloquently articulated in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d sub nom. United States v. Jones, 565 U.S. __, 132 S.Ct. 945 (2012), a case involving the warrantless installation of a GPS tracking device on a drug dealer’s vehicle. Officers monitored the device for 28 days and obtained incriminating evidence from it. The defendant in the case argued that the installation and monitoring amounted to a search under the Fourth Amendment. The government contended that it did not, because the device only monitored the defendant’s movement on the public roads where there is no reasonable expectation of privacy. A panel of the D.C. Circuit ruled unanimously for the defendant. The court acknowledged that short-term surveillance of a suspect’s travels on public roads is not a search, but concluded that protracted 24-hour-per-day tracking implicates privacy expectations in a way that short-term surveillance does not:
[T]he whole of one’s movements over the course of a month . . . reveals more — sometimes a great deal more — than does the sum of its parts. . . . The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life . . . . Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one‘s not visiting any of these places over the course of a month. The sequence of a person‘s movements can reveal still more; a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another‘s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.
The case subsequently reached the Supreme Court. That Court resolved the case by finding that the mere installation of the device was a search, because it involved a trespass on private property – the vehicle – to obtain information. The majority therefore did not rule on whether the monitoring of the device compromised a reasonable expectation of privacy, and so did not expressly adopt or reject the mosaic theory. However, five Justices in various opinions seemed to signal an endorsement of the mosaic theory.
The mosaic theory and cameras. Under certain circumstances, officers’ use of cameras may implicate the mosaic theory. The easiest example is a drone-mounted camera that follows a suspect for a protracted period of time, recording the suspect’s activity. The use of such a device would have a greater impact on the suspect’s privacy than did the GPS tracking in Maynard/Jones and so would likely be viewed as a search under the mosaic theory.
Some courts have ruled that the mosaic theory may apply to stationary cameras, such as when a camera is directed at a suspect’s residence for a long period of time. For example, in a federal case that arose in the state of Washington, officers installed a camera on a utility pole 100 yards from the defendant’s rural home. They left it there, recording the defendant’s front yard, for six weeks. The footage showed the defendant firing guns which, as an illegal alien, federal law barred him from possessing. He was charged with a federal gun offense. He moved to suppress the footage, arguing that the camera invaded his reasonable expectation of privacy and so required a warrant. The Government contended that his front yard was visible to any passer-by and so was not subject to a reasonable expectation of privacy. The trial judge ruled for the defendant, stating that “[t]he American people have a reasonable expectation of privacy in the activities occurring in and around the front yard of their homes particularly where the home is located in a very rural, isolated setting. This reasonable expectation of privacy prohibits the warrantless, continuous, and covert recording of [the defendant’s] front yard for six weeks,” and declaring that the officers’ use of the camera was suggestive of the “Orwellian state.” Order Granting Defendant’s Motion to Suppress, United States v. Vargas, Case No. CR-13-6025-EFS (E.D. Wash., Dec. 15, 2014) (available online here and discussed by Professor Orin Kerr here).
Long list of cases regarding stationary cameras. Vargas isn’t alone but there are plenty of recent cases going the other way and allowing the warrantless use of stationary surveillance cameras. Readers who wish to dig more deeply into this issue may be interested in the following cases: United States v. Houston, 965 F. Supp. 2d 855 (E.D. Tenn. 2013) (use of a pole camera to observe an unobscured curtilage for ten weeks violated the defendant’s reasonable expectation of privacy based on the duration of the surveillance, though the evidence was not excluded as a result of the federal good faith exception to the exclusionary rule); United States v. Brooks, 911 F. Supp. 2d 836 (D. Ariz. 2012) (noting potential Supreme Court support for the mosaic theory, but finding that use of a legally installed pole camera to monitor areas of an apartment complex that were exposed to public view did not infringe on an expectation of privacy that society would recognize as reasonable); United States v. Anderson-Bagshaw, 509 F. App’x 396 (6th Cir. 2012) (unpublished) (in a case concerning the use of a pole camera to observe a defendant’s backyard for an extended period of time, the court expresses “misgivings about a rule that would allow the government to conduct long-term video surveillance of a person’s backyard without a warrant,” but funds any Fourth Amendment violation harmless); United States v. Garcia-Gonzalez, 2015 WL 5145537 (D. Mass. Sept. 1, 2015) (discussing the Fourth Amendment implications of pole cameras but concluding that pre-Jones precedent dictated that warrantless use of pole cameras over several months to record and monitor areas around defendant’s home that were visible to the public did not violate the Fourth Amendment); United States v. Wymer, 40 F. Supp. 3d 933 (N.D. Ohio 2014) (ruling that the warrantless installation and use of a pole camera to monitor defendant’s commercial property did not violate the Fourth Amendment; the defendant did not have a reasonable expectation of privacy in the property because it was exposed to public view; however, the court expressed reservations about the intrusiveness of continuous and prolonged video surveillance and explained that while not necessary under prevailing law, “the far better practice is to apply for a warrant”); United States v. Moore, 2014 WL 4639419 (S.D. Fla. Sept. 16, 2014) (the warrantless use of a pole camera to monitor areas of commercial property that were in plain sight and freely accessible to the public did not violate the defendant’s Fourth Amendment rights because the defendant did not have a reasonable expectation of privacy in the areas monitored); United States v. Root, 2014 WL 4715874 (E.D. Wash. Sept. 22, 2014) (the warrantless installation and use of a pole camera to monitor a public alleyway behind defendant’s house did not violate the Fourth Amendment because defendant did not “have a legitimate expectation of privacy in activities which occurred in that public alleyway, readily observable by any passerby”); United States v. Gilliam, 2015 WL 5178197 (W.D. Pa. Sept. 4, 2015) (“In this case, [Defendant] cannot establish an objectively reasonable expectation of privacy when the images captured by the pole camera were visible to any person who was located in the public street looking at his home.”); United States v. Nowka, 2012 WL 6610879 (N.D. Ala. Dec. 17, 2012) (unpublished) (the warrantless installation and use of a pole camera to monitor the defendant’s residence did not violate the Fourth Amendment; installation of the camera onto a utility pole in the right-of-way of the defendant’s home did not constitute a trespass because the pole was in a publicly-dedicated space; the defendant did not have a reasonable expectation of privacy in the area monitored by the camera because a person on the public street could view the area monitored by the camera).
The mosaic theory and body cameras. Body cameras do not implicate the mosaic theory as clearly as the types of cameras discussed above. No single officer’s camera provides a long-term record of a particular place or person. The protracted monitoring conducted through GPS tracking in Maynard and through the pole camera in Vargas is absent.
Although footage from a single body camera would be unlikely to form a Fourth Amendment mosaic, one can imagine body camera footage being part of a broader mosaic. When every officer is wearing a camera, and many vehicles are camera-equipped, and many light and utility poles host cameras, and drones provide aerial surveillance, and license plate readers track vehicle locations, perhaps the cumulative effect could invade a suspect’s reasonable expectation of privacy. The argument would be that, while the mosaic in Jones was comprised solely of GPS data, and the mosaic in Vargas was created exclusively by pole camera footage, a mosaic also may be formed from data points of different types, if all the data points are available to law enforcement and may be aggregated and exploited. See Marc Jonathan Blitz, Police Body-Worn Cameras: Evidentiary Benefit and Privacy Threats, American Constitution Society May 2015 (noting that the mosaic theory may be implicated “if police do not merely capture footage, but also aggregate the footage they obtain from body-worn cameras, and perhaps combine it with footage captured from dashcams, CCTV cameras, or other evidence of a person’s transactions. While an individual officer’s camera is unlikely to capture anything close to a days-long record of a person’s activity, it can gather evidence that might contribute to such a record.”).
I doubt that such an argument is likely to get much consideration today. But as technology evolves and law enforcement becomes more adept at collecting, combining, and using “big data,” the mosaic theory may form the basis for defendants’ efforts to limit the reach of law enforcement.