Cops Recording Your Every Move For 10 Weeks Doesn't Violate The Constitution

New court ruling further blurs the line between new technologies and what constitutes lawful "searches."

02/08/2016 09:05 pm ET
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Courts are still grappling with whether warrantless videos taken for law enforcement purposes violate your privacy rights.

A federal appeals court on Monday ruled it is not unconstitutional for law enforcement to set up a camera on a public utility pole and record a suspect's moves for 10 weeks straight.

Such warrantless recording is permitted, the U.S. Court of Appeals for the 6th Circuit said, because people have "no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads."

The ruling stemmed in part from a nasty, years-long confrontation between two Tennessee brothers and local police -- long-simmering bad blood that led to shootouts, officer deaths and ultimately a criminal trial that ended in acquittals for the brothers.

Despite this history, the conflict persisted, and federal agents later learned from local law enforcement that one of the brothers, Rocky Houston, had a prior felony and thus was in violation of federal law for possessing firearms in his rural property -- which he shared with his brother Leon, who slept in a trailer, and an adult daughter, who lived in a nearby barn.

Federal agents followed up on the tip and visited the property to investigate, but quickly realized that their vehicle "stuck out like a sore thumb" and they couldn't conduct proper surveillance of the premises. That's when they enlisted the help of the utility company and, without obtaining a warrant, set up a camera from a pole located roughly 200 yards away from Leon's trailer.

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For a federal appeals court, a camera that recorded a suspect's moves for 10 weeks straight didn't violate his "reasonable expectation of privacy."

That was good enough to monitor the brothers' activities for 10 weeks straight, including instances of Houston handling guns on the property. About a month after the surveillance ended, the agents moved in on the farm, seized 25 firearms -- 17 of them Houston's -- and charged him under a federal law that prohibits former felons from possessing them.

Houston was ultimately convicted and sentenced to nine years in prison for the offense, in large part based on the evidence gathered through the warrantless surveillance of the family property.

On appeal, the 6th Circuit ruled the surveillance didn't violate his Fourth Amendment right to be free from unreasonable searches.

"The ATF agents only observed what Houston made public to any person traveling on the roads surrounding the farm," the court said, reasoning that the "agents had a right to access the public utility pole and the camera captured only views that were plainly visible to any member of the public who drove down the roads bordering the farm."

But the court also dismissed the notion that the length of surveillance mattered to its constitutional analysis, noting that "the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations."

As George Washington University law professor Orin Kerr observed in a legal blog, the court appears to have employed an interest-balancing theory to reach its conclusion -- that is, the surveillance is justified because it helps avoid giving wrongdoers "the upper hand."

The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely. U.S. Court of Appeals for the 6th Circuit

"The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely," the court said.

The 6th Circuit ruling from Monday is an outgrowth of a 2012 Supreme Court decision that declared it unconstitutional to install a GPS device on a vehicle without a warrant -- the first major ruling to try to adapt the law on unreasonable searches and seizures to the realities of modern technology.

Though she didn't write the court's lead opinion, Justice Sonia Sotomayor, whom the 6th Circuit cited, wrote separately to articulate a broad and liberal vision for how the Fourth Amendment should be interpreted in the age of smartphones and the surveillance state.

"Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse," she wrote.

In light of these concerns, Sotomayor questioned whether the government should be entrusted with these technologies without a meaningful check, "especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power" and "police surveillance."

Sotomayor's view is not the law nationwide. But as the Houston case and others illustrate, the Supreme Court may need to clarify soon what is and isn't reasonable as government tactics grow more and more sophisticated.

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