How Long Can the Government Watch You?: Court Upholds Lengthy Warrantless Surveillance by Pole Camera

From drones to pole cameras, law enforcement now has more non-human surveillance options at its disposal than ever before.  By extension, courts are continually attempting to define the limits of what is permissible with such searches under the Fourth Amendment.

In United States v. Houston, the Sixth Circuit affirmed Defendant Rocky Houston’s conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).  One of the main arguments Houston raised on appeal was his allegation that the District Court erred in denying his motion to suppress any evidence obtained from surveillance video taken from his property by a pole camera installed by the ATF on a public utility pole located across the street from his mobile home.  ATF agents installed the camera and conducted surveillance of Houston’s residence for ten weeks without a warrant.  During this period, the ATF obtained video evidence that Houston possessed firearms.  The ATF subsequently obtained a warrant for the surveillance after the Sixth Circuit issued its opinion in United States v. Anderson-Bagshaw, 509 F.App’x 396 (6^th Cir. 2012), in which it expressed “some misgivings” about the constitutionality of long-term warrantless surveillance of a defendant’s back yard via a pole camera.

In its opinion, the Court held that no Fourth Amendment violation occurred because Houston had no reasonable expectation of privacy in video footage of his property obtained by the pole camera because it “captured the same views enjoyed by passersby on public roads.”  The Court further held that the length of the warrantless surveillance did not render the surveillance unconstitutional “because the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations.”  Although it is a painful thought, the Court reasoned that the ATF could have stationed an agent on top of the utility pole for ten weeks the same as it placed a camera there and that the Fourth Amendment should not prevent the Government from using more efficient means to conduct surveillance.

In his concurring opinion, Judge Rose, sitting by designation, did not share the majority’s comfort with the warrantless surveillance. Citing Anderson-Bagshaw and Justice Sotomayor’s concurrence in United States v. Jones, he explained that “long-term non-human surreptitious surveillance ‘is worrisome because ‘it evades the ordinary checks that constrain abusive law enforcement practices….'”  He placed particular emphasis on the fact that the pole camera conducted such lengthy surveillance of Houston’s residence.  Judge Rose further disagreed with the majority’s conclusion that the Fourth Amendment should not hamstring the Government’s use of technology by noting that it can always regain “the upper hand” by obtaining a search warrant.

In the end, however, Judge Rose concluded that any error in the warrantless surveillance was harmless because the Government had probable cause to obtain the subsequent warrant.  Additionally, Judge Rose explained that there was sufficient evidence to convict Houston even in the absence of any evidence tainted by an unlawful search.

The Court’s decision in this case raises an issue that should be of great concern to defense counsel: as advances in technology increase the Government's capacity to conduct surveillance from public areas, just how long is too long?  Could the Government document a subject's movements for a year without a warrant in the hopes of obtaining incriminatory evidence?  This will not be the last time the Sixth Circuit addresses this issue.