Prolonged Warrantless Monitoring From Pole Cameras Not A Fourth Amendment Violation, Seventh Circuit Decides
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
Using three pole cameras mounted on public property to continuously monitor the exterior of a defendant’s home for 18 months without a warrant is not an unreasonable search in violation of the Fourth Amendment, according to the Seventh Circuit.
Suspecting that Travis Tuggle was trafficking drugs, law enforcement officers installed video-only cameras to three utility poles and continuously monitored the exterior of his Illinois home. The first two cameras viewed the front of Tuggle’s home and an adjoining parking area. The third camera also viewed the outside of the home, and also captured a shed owned by Tuggle’s co-conspirator. Together, the cameras captured almost eighteen months of continuous footage.
Using the imagery captured by the cameras, officers tallied over 100 instances of what they suspected were deliveries of methamphetamine to Tuggle’s residence. Several witnesses corroborated the activities, and officers secured and executed search warrants on several locations, including Tuggle’s home. A federal grand jury subsequently indicted Tuggle on charges for intending to distribute methamphetamine and for maintaining a drug-involved premises.
Before trial in U.S. District Court for the Central District of Illinois, Tuggle moved to suppress the evidence obtained from the pole cameras, arguing the warrantless use of the cameras violated his Fourth Amendment rights. The District Court denied the motion and Tuggle’s multiple requests for reconsideration. Tuggle then entered a conditional guilty plea to both counts and reserved his right to appeal the court’s denials of his motions to suppress.
Tuggle then appealed to the U.S. Court of Appeals for the Seventh Circuit, presenting two arguments for why the government’s use of the pole cameras constituted an impermissible search under the Fourth Amendment. First, he argued the warrantless pole camera surveillance of his residence, irrespective of the length of the surveillance, violated his Fourth Amendment rights. Second, he argued that “long-term, warrantless surveillance over a period of approximately eighteen months” amounted to a Fourth Amendment violation.
Before addressing Tuggle’s arguments, the Seventh Circuit addressed the challenge of applying the Fourth Amendment to an increasingly digital world. Simply put, “What constitutes a search in a digital society whose technology empowers near-perfect surveillance without the need for physical touch?” The Supreme Court developed in 1967, a two-part test to determine whether a Fourth Amendment search occurred. The first question is whether a person has “exhibited an actual (subjective) expectation of privacy” and second, whether that “expectation be one that society is preparing to recognize as ‘reasonable.’”
Given this current jurisprudence, the Court wrote that the scope of Fourth Amendment protections “often turns on whether a used technology becomes widespread” and “may eventually afford the government ever-wider latitude over the most sophisticated, intrusive, and all-knowing technologies with lessening constitutional constraints.”
Against the existing legal backdrop, and “without other statutory or jurisprudential means to cabin the government’s surveillance techniques presented [in Tuggle’s case],” the Seventh Circuit denied Tuggle’s appeal. In short, the Court held, “the government’s use of a technology in public use, while occupying a place it was lawfully entitled to be, to observe plainly visible happenings, did not run afoul of the Fourth Amendment.”
The Seventh Circuit explained why Tuggle’s arguments have some appeal under the still-new “mosaic theory” of Fourth Amendment protections and rhetorically asked “How much pole camera surveillance is too much?” But, the Court explained that it lacked authority to entertain that theory and avoided “the obvious line-drawing problem.”
The Supreme Court has not yet expressly approved of “mosaic theory,” and the other federal courts of appeal (First, Fourth, Sixth, and Tenth Circuits) to address similar government use of cameras have approved it. Lacking a “quite solid justification” to disagree with its sister circuits, the Seventh Circuit held it was required to follow the status quo and deny Tuggle’s appeal.
For those reasons, as further explained in the Court’s 41-page decision, the Seventh Circuit affirmed the District Court’s denial of Tuggle’s motion to suppress.
You can read the Seventh Circuit’s full decision in U.S. v. Tuggle.
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