Video Surveillance Cameras

Law enforcement officers are making more and more use of video surveillance cameras, often mounted on utility poles. Sometimes these cameras are focused on streets or parks, as discussed in this Fayetteville Observer article. Sometimes they are focused on suspects’ residences. (Sometimes, hidden cameras are installed inside residences or other private areas, but such uses are beyond the scope of this post.) I’ve been asked several times whether there are any legal limitations on the use of such cameras. I’ll do my best to answer that question in this post.

Statutory law. In general, statutory law does not limit the use of such cameras. State and federal electronic surveillance statutes focus on audio interception and do not apply to video surveillance. See G.S. 15A-286 et seq.; 18 U.S.C. § 2510 et seq.

Fourth Amendment – pre-Jones. With few or no statutory constraints, the key question concerns constitutional limits on the use of video surveillance cameras. Historically, surveillance cameras have not been seen as implicating the Fourth Amendment because the cameras are generally installed in locations accessible to the public, and there is no reasonable expectation of privacy in areas that are exposed to public view. Cases illustrating this perspective include the following:

• United States v. Vankesteren, 553 F.3d 286 (4th Cir. 2009) (officers investigating allegations of unlawful bird trapping installed a motion-activated camera in the defendant’s open field; this did not implicate the Fourth Amendment, for while “[t]he idea of a video camera constantly recording activities on one’s property is undoubtedly unsettling to some . . . . [a]nyone could have walked onto [the suspect’s] property . . . and observed his traps”; in fact, officers could have remained there “twenty-four hours a day,” and the fact “[t]hat the agents chose to use a more resource-efficient surveillance method does not change [the] Fourth Amendment analysis”; “[s]ince [the defendant] had no legitimate expectation of privacy, the agents were free . . . to use video surveillance to capture what any passerby would have been able to observe . . . . Essentially, the camera did little more than the agents themselves could have physically done, and its use was therefore not unconstitutional.”)
• United States v. McIver, 186 F.3d 1119 (9th Cir. 1999) (officers installed surveillance cameras in a national forest to monitor a patch of marijuana plants; this did not violate the defendants’ reasonable expectation of privacy)

Fourth Amendment – effect of Jones. The above analysis may be affected by United States v. Jones, 565 U.S. __ (2012). The holding of Jones was that the installation of a GPS tracking device on a suspect’s vehicle was a Fourth Amendment search because it involved a physical intrusion into the vehicle for the purpose of obtaining information. However, five Justices – the four who joined Justice Alito’s concurrence in the judgment plus Justice Sotomayor – also expressed the view that prolonged GPS monitoring intrudes upon a suspect’s reasonable expectation of privacy and so is a search under the Fourth Amendment. The 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 concerned 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 the police are free to observe a suspect’s residence from the public streets to see who comes and goes, permanent round-the-clock video surveillance is substantially more intrusive and is a search for purposes of the Fourth Amendment.

Early decisions on point. Several courts have considered this argument. None of the decisions are from North Carolina, and they are inconclusive on the issue. Nonetheless, they suggest that judges are taking seriously the idea that Jones may matter outside the context of GPS tracking. Here are the decisions of which I am aware:

• United States v. Houston, __ F.Supp.2d __, 2013 WL 3975591 (E.D. Tenn. July 30, 2013) (investigation of defendant’s family for firearms offenses included the installation of “a video camera . . . on a utility pole adjacent to the . . . family property” for a period of about three months, the first two without judicial authorization; although all areas covered by the camera could be viewed from the street with the naked eye, the court ruled that “ten weeks [of surveillance] crosses into the unreasonable” and is “suggestive of the Orwellian state”; however, the court did not apply the exclusionary rule because “at the time officers installed the subject pole camera, no court had required a search warrant to conduct video surveillance of an unobstructed curtilage”)
• United States v. Anderson-Bagshaw, 2012 WL 6600331 (6^th Cir. Dec. 19, 2012) (unpublished) (investigation of defendant’s fraudulent disability claim included the installation of “a video camera on a utility pole overlooking [her] backyard”; the camera was in place 24 days and captured the defendant “mowing the lawn, raking, caring for and herding . . . alpacas, and pushing a wheelbarrow” but also her “husband naked and her son relieving himself against a tree”; the court ruled that the backyard was within the curtilage of the defendant’s home but could be seen from the street; the court did not resolve the question of whether the surveillance constituted a search, but expressed “misgivings about a rule that would allow the government to conduct long-term video surveillance of a person’s backyard without a warrant” and noted that five Justices indicated a concern with long-term surveillance in Jones; the court stated that any Fourth Amendment violation was harmless in light of the other evidence supporting the defendant’s conviction)
• United States v. Brooks, 911 F.Supp.2d 836 (D. Ariz. 2012) (drug trafficking investigation included installation of a video camera on a service pole overlooking defendant’s apartment building; camera could record images of the “stairwell, the building’s balconies, and the surrounding open parking spaces and parking lot,” and yielded evidence of drug crimes; defendant moved to suppress, arguing that “that five members of the United States Supreme Court [suggested in Jones] that long-term continuous surveillance violates a person’s Fourth Amendment rights because it allows government officials to record and aggregate a person’s activities in a way that violates a person’s expectation of privacy”; court concludes that while “in some future case” the Court might restrict long-term camera surveillance, the actual holding of Jones did not encompass these facts; everything recorded by the camera was visible from a “public vantage point,” so the use of the camera did not implicate the Fourth Amendment).

Advice for officers. Nothing in 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. However, when an officer wants to focus a surveillance camera on a suspect’s residence, the officer should be aware that a court might rule that long-term use of such a camera constitutes a Fourth Amendment search. A cautious officer may therefore wish to seek a court order authorizing the use of the camera. 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 in that it could be sought ex parte and would need to be supported by an affidavit establishing probable cause.

As always, I welcome thoughts, comments, reactions, and citations to additional relevant cases and authorities.