Placing a video camera on a utility pole and conducting surveillance can be a useful law enforcement tool to gather information without requiring an in-person presence by officers at all times. But this tool may be subject to the Fourth Amendment restrictions. This post reviews the evolving case law, particularly since the United States Supreme Court ruling in United States v. Jones, 132 S. Ct. 945 (2012).
Jeff Welty in a 2013 post reviewed video surveillance generally, not just pole cameras, and discussed Jones and the few cases decided in light of its ruling. This post, after reviewing Jones, will discuss a few pole camera cases decided in federal courts since his post and whether officers should seek approval from a court before conducting pole camera surveillance.
United States v. Jones. Officers installed a GPS device without a valid search warrant on a suspected drug-trafficker’s vehicle and then tracked the vehicle’s movements for about four weeks. The holding of Jones was that the installation of the GPS tracking device on a suspect’s vehicle was a Fourth Amendment search because it involved a physical intrusion (a “trespass”) into the vehicle for the purpose of obtaining information. In addition, five Justices (the four who joined Justice Alito’s concurrence in the judgment plus Justice Sotomayor, who also had joined the Court’s opinion) expressed the view that prolonged GPS monitoring intrudes upon a suspect’s reasonable expectation of privacy and is a search under the Fourth Amendment. These Justices reasoned that although short-term monitoring of a suspect’s movement on the public roads may not intrude upon a reasonable expectation of privacy, long-term monitoring generates so much information about a suspect’s movements and activities that the aggregate effect is an invasion of privacy.
Although Jones involved tracking a suspect’s movements, it could be used to support a broader argument about long-term electronic surveillance. One could contend that under Jones, while officers are free to observe a suspect’s residence from the public streets or a neighbor’s property to see who comes and goes, permanent round-the-clock video surveillance is substantially more intrusive and constitutes a search under the Fourth Amendment.
Post-Jones cases on pole camera surveillance. The Jones ruling revived the trespass theory in Fourth Amendment analysis concerning what constitutes a search, so the trespass theory and the separate reasonable expectation of privacy theory both must be considered in appropriate cases.
Trespass theory. All the cases that have considered the issue have rejected a defendant’s argument based on the trespass theory that the installation of the camera was a trespass under Jones, because in most cases the utility pole is not on the defendant’s property or, even it is located there, the utility had an easement to access the pole as needed. United States v. Nowka, 2012 WL 6610879 (N.D. Ala. 2012); United States v. Root, 2014 WL 4715874 (E.D. Wash. 2014); United States v. Wymer, 40 F. Supp.3d 933 (N.D. Ohio 2014).
Reasonable expectation of privacy theory. I have found one post-Jones cases that ruled that warrantless pole camera surveillance violated the Fourth Amendment under the reasonable expectation of privacy theory. That case is Shafer v. City of Boulder, 896 F. Supp. 915 (D. Nev. 2012), where a pole camera surveilled the defendant’s backyard without a search warrant for 24 hours a day for 56 days, and the camera was long-range, infrared, and waterproof. The defendant’s backyard was protected by a solid fence and within the home’s curtilage. The court cited two pre-Jones cases in support of its ruling, but not Jones, probably because it was unnecessary to do so based on the facts.
Most of the cases have ruled that warrantless pole camera surveillance did not violate the Fourth Amendment under the reasonable expectation of privacy theory. For example, a recent federal appellate case, United States v. Houston, 813 F.3d 282 (6th Cir. 2016), found that ten weeks’ surveillance with a camera installed on a utility pole about 200 yards from a trailer used as a residence on a farm did not violate a resident’s reasonable expectation of privacy because the camera recorded the same view of the residence as that enjoyed by people on nearby public roads. The court believed that the Jones case did not require a different result. Interestingly, a concurring opinion in Houston believed that Jones required the officers to obtain a search warrant.
A few case have upheld surveillance with reservations, being bound by prior pre-Jones precedents. See, e.g., United States v. Garcia-Gonzalez, 2015 WL 5145537 (D. Mass. 2015).
There have been no North Carolina appellate court or United States Supreme Court cases on pole camera surveillance since Jones.
Advice to officers. Nothing in Jones or lower court cases after Jones calls into question the use of surveillance cameras that are focused on public streets, parks, and other public areas. For example, if drug activity is commonplace at a particular intersection, the Fourth Amendment does not preclude placing a surveillance camera on a light pole facing that intersection.
It would not be surprising if in the relatively near future the United States Supreme Court decides a case on pole camera surveillance, and there is a reasonable probability that the Court might rule that extensive video surveillance of a residence requires a search warrant or its functional equivalent, such as a court order. Of course, predicting future Court rulings is highly speculative and subject to reasonable disagreement.
In the meantime, a cautious officer may wish to seek a court order authorizing the use of a pole camera directed at a residence or at least consult with the officer’s agency’s legal advisor or a prosecutor before deciding not to do so. No case or statute sets out the proper procedure for obtaining such an order, but it likely would be similar to obtaining a search warrant or other investigative court order that could be sought ex parte and would need to be supported by an affidavit establishing probable cause. If a court order is sought, the order might limit pole camera surveillance to a relatively short period, such as 30 days, and apply again if additional surveillance is needed.