Update on Pole Cameras and the Fourth Amendment

When an officer attaches a video camera to a utility pole and uses it to monitor a suspect’s home continuously for several months, is that a “search” within the meaning of the Fourth Amendment? Or is it just the officer seeing what any passer-by might see, such that there is no intrusion on the suspect’s reasonable expectation of privacy? This issue has been a focal point of litigation since Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018), which held that the long-term collection of historical cell site location information is so intrusive that it is a search, even though any individual piece of such data does not belong to the phone’s user and is not subject to a reasonable expectation of privacy. Whether the rationale of Carpenter extends to pole cameras has been addressed before on this blog, most recently here and here by Shea Denning. But there are a number of new cases in this area, which I have summarized below.

Federal cases. There have been several recent opinions by the federal appellate courts. The most in-depth treatment is in the Moore-Bush case, but Tuggle is also a leading case in this area. I don’t think that the Fourth Circuit has a post-Carpenter case on point.

  • United States v. Dennis, 41 F.4th 732 (5th 2022) (officers “installed pole cameras directed at the front and back of [defendant’s] properties” and let them run for more than two months; they subsequently charged defendant with drug offenses; he filed an untimely motion to suppress, arguing that the use of the cameras constituted an unlawful warrantless search; the reviewing court found no plain error, as “[s]urveillance of areas open to view of the public without any invasion of the property itself is not alone a violation” of the Fourth Amendment, and while “[w]e do not say that the length of time surveilled is irrelevant . . . we find no privacy interest was here invaded”)
  • United States v. Moore-Bush, 36 F.4th 320 (1st 2022) (en banc) (the court unanimously reversed, per curiam, the district court’s order granting a motion to suppress eight months’ worth of pole camera footage; the camera was mounted on a utility pole and directed at the home of a drug suspect; three judges concluded that the use of the pole camera was a search, because it was at least as intrusive as the CSLI at issue in Carpenter, but determined that the good faith exception applied because prior precedent had said that the use of pole cameras was not a search; three other judges concluded that the use of the pole camera was not a search, distinguishing Carpenter on various grounds and adhering to prior circuit opinions on point; I believe that there are three other judges on the court who did not submit an opinion other than the one-sentence per curiam reversal)
  • United States v. Tuggle, 4 F.4th 505 (7th 2021) (officers “installed three cameras on public property that captured the outside of [defendant’s] home” for 18 months in the course of a drug investigation; this did not violate defendant’s reasonable expectation of privacy and so was not a search; defendant did not fence in his yard and knowingly exposed his curtilage to public view; the cameras only captured a “sliver” of his life, such that the “mosaic theory” of the Fourth Amendment was not implicated; for an introduction to the mosaic theory, see this prior post)
  • United States v. May-Shaw, 955 F.3d 563 (6th 2020) (officers installed a pole camera that covered “a parking lot near [defendant’s] apartment building and a covered carport next to that building” where he parked his car; the camera ran for 23 days and captured evidence of defendant’s drug activity; he was arrested, charged, and moved to suppress; both the trial and reviewing courts found no problem with the use of the pole camera; pre-Carpenter circuit precedent allowed it, and the recording did not create such a comprehensive picture of defendant’s movements and activities that it would implicate the Fourth Amendment)

State cases. I haven’t looked comprehensively at state cases, but some of the cases that I stumbled on, or that are frequently discussed in the other cases in this area, are summarized below:

  • People v. Destefano, 164 N.Y.S.3d 412 (N.Y. Supr. Ct. Nassau County 2022) (upholding use of a pole camera to investigate whether a sex offender had changed his address without notifying the proper authorities; citing Tuggle and finding no “search”; stating that “government’s use of a technology in public use, while occupying a place it is lawfully entitled to be, to observe plainly visible happenings, does not run afoul of the Fourth Amendment of the United States Constitution”; and finding that the mosaic theory was not implicated by the use of the camera)
  • People v. Tafoya, 494 P.3d 613 (Colo. 2021) (officers installed a “pole camera [that] continuously recorded footage of [defendant’s] property—including his backyard, which was otherwise hidden by a six-foot-high privacy fence—for more than three months”; reversing the lower courts, the reviewing court held that this “constituted a warrantless search in violation of the Fourth Amendment”; the court understood Jones and Carpenter to mean that “when government conduct involves continuous, long-term surveillance, it implicates a reasonable expectation of privacy”)
  • Commonwealth v. Mora, 150 N.E.3d 297 (Mass. SJC 2020) (investigators installed “hidden video cameras on public telephone and electrical poles” and “aimed [them] toward homes of alleged members of [a] drug conspiracy”; this “may” have been a search under the Fourth Amendment, and was a search under the state constitution, which the court analyzed under the same expectation-of-privacy framework that is used in the Fourth Amendment context; it was “so targeted and extensive that the data it generated, in the aggregate, exposed otherwise unknowable details of a person’s life”; it was more intrusive than CSLI data, which only shows movements; the court remanded for further consideration of whether probable cause supported the use of the cameras and whether suppression was required)

Comment. This continues to be a live issue. Although a majority of the cases decided to date have found that the use of pole cameras does not implicate the Fourth Amendment, that view is not uniform and future decisions from our state appellate courts, from the Fourth Circuit, or from the Supreme Court of the United States could go either way. The continued evolution of camera technology, including better resolution and improved low-light performance, might influence how courts think about the matter. If I were an attorney for a law enforcement agency, I might want to get court approval for pole camera installations directed at residences out of an abundance of caution. And if I were a defense attorney, I certainly move to suppress evidence obtained from such cameras. As always, stay tuned to the blog for future developments.