(First published in the Kansas Sheriff magazine, Fall, 2022)
The world of ever-improving technology is difficult for lawmakers and courts. Revising statutes and evolving court opinions are both time consuming and unpredictable. It seems that law enforcement finds innovative ways to use new technology, but then waits years to hear whether those innovations are constitutional.
In the thermal-imaging case of Kyllo v. United States, 533 U.S. 27 (2001), the Big Court decided that there is a reasonable expectation of privacy where the government “uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.” Although the scientific facts of Kyllo are still debated, suffice it to say that changes in technology have had a great effect on both law enforcement success and on how courts view the Fourth Amendment’s “expectation of privacy.” The latter has resulted in needing more search warrants. Since Kyllo (and assuming that no consent was involved), search warrants are now required for GPS trackers (U.S. v. Jones, 565 U.S. 400 (2012)); dog sniffs near a home (Florida v. Jardines, 133 S.Ct. 1409 (2013); cell phones (Riley v. California, 573 U.S. 373 (2014); and CSLI [cell-site location information] from third-party service providers for a suspect’s cell phone (Carpenter v. U.S., 138 S.Ct. 2206 (2018).
In the next couple of years, we may well be adding to that list the warrantless law enforcement use of pole cameras. The current issue with polecams appears to be the length of time the cameras are in use. Some courts have recently held that 2 months is too long without a warrant, while others have held that 18 months appears fine.
Until only a few years ago, the use of pole cameras was not viewed as a Fourth Amendment search and thus did not require a search warrant. That was because courts consistently held that a person does not have an expectation of privacy in those portions of their lives and the exteriors of their homes that are in public view. Kansas state and federal courts continue to support that view. However, other courts are not so sure, because of what has become known as the “mosaic theory.”
As one Kansas senior federal trial judge recently said, “broadly speaking, the mosaic theory holds that, when it comes to people's reasonable expectation of privacy, the whole is greater than the sum of its parts. More precisely, it suggests that the government can learn more from a given slice of information if it can put that information in the context of a broader pattern, a mosaic. Thus, under the mosaic theory, courts apply the Fourth Amendment search doctrine to government conduct as a collective whole rather than in isolated steps, and consider whether a set of non-searches aggregated together amount to a search because their collection and subsequent analysis creates a revealing mosaic . . . [t]he mosaic theory first appeared in Fourth Amendment jurisprudence in [the GPS case mentioned above]. There, the government's use of a GPS device to monitor a car's location for twenty-eight days was a Fourth Amendment search under the reasonable-expectation-of-privacy test. The [lower court] relied on the “mosaic theory” to explain why the month-long GPS monitoring of the car constituted a Fourth Amendment search: [W]e hold the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.”
All of the cases so far tend to have the same general facts: 1) a warrantless placing by law enforcement of a video camera on a pole in a public space aimed at a particular home, but sighted so that the interior of the home cannot be viewed; 2) the camera usually operates and records 24/7; 3) the video footage can be stored indefinitely for later review; 4) the camera can pan left and right, tilt up and down, and zoom in and out while viewing the footage live; and, 5) it is agreed that the camera can capture a suspect’s everyday habits and routines over a long period of time.
In 2017, a majority of the South Dakota Supreme Court held that warrantless use of a pole camera for two months was a search and required a warrant. The state court did not explain exactly when, during that two-month period, the legal, non-search surveillance transformed into an illegal, search surveillance. In 2021, the Colorado Supreme Court followed South Dakota holding that three months of warrantless camera surveillance constituted a search under the Fourth Amendment, and thus required a warrant.
The federal courts too are now reviewing their positions on the cameras. In 2020, the 6th Circuit federal court of appeals reaffirmed its earlier view that there is no expectation of privacy in things that can be viewed by the public. In 2021, the 7th Circuit held that an 18-month duration of the government’s warrantless use of a pole camera “was concerning” but still permissible. This summer, an en banc (entire court) opinion of the 1st Circuit only added to the confusion. That federal court gave the government the win in U.S. v. Moore, 2022 WL 2072086 (1st Cir. 2022) but the judges split 3-3 on why. Three of the judges took the majority view that pole cameras do not invade any reasonable expectation of privacy; but, importantly, the other three judges thought just the opposite and only agreed on the outcome in the case because the good faith exception to the exclusionary rule applied. What has government attorneys in the 1st Circuit wary is that the first three judges are all retiring, leaving the “dissenting” group of three judges to hear and decide future pole camera cases. The Big Court has so far declined to become involved in any of the cases, even though there is a split between the state and federal courts over what the Fourth Amendment demands.
So, what is the takeaway for Kansas officers thinking about employing a pole camera in one of their investigations? The best practice answer is that should probable cause already exist to place a camera (maybe not enough to search the house, but enough for a camera), then bullet-proof the pole camera evidence by seeking an early search warrant. If that is not possible, then be aware that the law on the lengthy-use of warrantless pole cameras recording a home is in flux and limit the length of time your pole camera is actually used without a warrant.
As we wait for warrantless pole cameras to work themselves through the court system, and for courts to decide the limits of a person’s expectation of privacy, it is easy to think about the next big constitutional questions in law enforcement: the searches of computer-laden and Bluetooth-capable cars, boats and aircraft used in crimes, and the constitutional limits on the law enforcement uses of drone aircraft. Those issues are sure to keep many lawyers employed.
For further research and understanding:
Positive: U.S. v. Tuggle
, 4 F.4th 505 (7th Cir. 2021); U.S. v. May-Shaw
, 955 F.3d 563 (6th Cir. 2020); U.S. v. Hay
, 2022 WL 1421562 (D.Kan. 2022); U.S. v. Jackson, 213 F.3d 1269 (10th Cir. 2000)(vacated on other grounds); U.S. v. Cantu,
684 Fed.Appx. 703 (10th Cir. 2017); Negative: State v. Jones
, 903 N.W.2d 101 (S.D. 2017); People v. Tafoya
, 494 P.3d 613 (Colo. 2021).