Seventh Circuit: Warrantless Public Pole Camera Surveillance Is Not An Unlawful Search Under The Fourth Amendment
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
From 2013 to 2016, several law enforcement agencies investigated a methamphetamine distribution conspiracy in Illinois. The government installed three cameras on nearby utility poles to monitor the home of defendant Travis Tuggle. Two cameras viewed the front of Tuggle’s home and a nearby parking area. The third camera viewed a shed owned by codefendant, Joshua Vaultonburg.
The cameras captured 18 months of footage, which was stored at the Federal Bureau of Investigation’s office in Springfield, Illinois. The cameras provided video evidence that supported the government’s indictment of Tuggle and others, including over 100 instances of suspected drug deliveries and transactions. Investigating officers determined that Tuggle conspired to distribute over 20 kilograms of methamphetamine. Relying on this video evidence, the officers secured and executed a search warrant on Tuggle’s house.
A grand jury later indicted Tuggle on various drug-related offenses. Tuggle moved to suppress the video evidence before trial, arguing the use of cameras was a warrantless search in violation of the Fourth Amendment. The district court denied the motion, finding that the camera usage was not a search. Tuggle twice moved for the district court to reconsider. But it did not, and Tuggle was sentenced to 360 months’ imprisonment for one count, and 240 months’ concurrent imprisonment for another.
Tuggle appealed the district court’s denial of his motion to suppress to the U.S. Court of Appeals for the Seventh Circuit. The court of appeals set the tone of its decision by opening with a description of what it foresees as the “not-so-distant future.” It described that “millions of Americans may well wake up in a smart-home-dotted nation” with “cameras installed on nearby doorbells, vehicles, and municipal traffic lights.” The court of appeals stated that “[t]hese future Americans will traverse their communities under the perpetual gaze of cameras.”
The court of appeals stated that the Framers of the Constitution sought “to place obstacles in the way of a too permeating police surveillance.” While most of the country’s history contemplating a search has concerned common-law trespass, the court explained that it is now complicated by the “evolution of technology.” The court described the current case as “a harbinger of the challenge to apply Fourth Amendment protections to accommodate forthcoming technological changes.”
Indeed, the court said that this case presents an issue of first impression – whether the warrantless use of pole cameras to observe a home on a short or long term basis amounts to a search under the Fourth amendment. Despite the prevalence of cameras in society, it could not identify in its precedent any cases that squarely evaluated the constitutionality of the government’s use of remote cameras, pole cameras, or the like.
The court of appeals mentioned that its sister circuits are split on the question presented. However, the majority concluded that pole camera surveillance does not constitute a Fourth Amendment search. The Seventh Circuit agreed, holding that the extensive pole camera surveillance in this case did not constitute a search.
The court examined whether the government infringed upon Tuggle’s expectation of privacy by attaching cameras to utility poles on public property. In doing so, it utilized the Supreme Court’s two-part test – first, determining whether Tuggle manifested a subjective expectation of privacy in the object of challenged search, and second, whether society is willing to recognize that expectation as reasonable.
The court first found that Tuggle had not exhibited a subjective expectation of privacy in the ongoings outside of his home. He had not erected fences or anything else to shield his yard or driveway from public view. The court also found that there was no objective expectation of privacy, as the government used a “commonplace technology,” located where officers were lawfully entitled to be, and captured events that any member of the public could observe. As such, the court held that the use of pole cameras did not constitute a Fourth Amendment search.
Next, the court entertained Tuggle’s argument that, using the mosaic theory, the prolonged and uninterrupted use of the cameras violated his Fourth Amendment rights. As explained by the court, the mosaic theory captures the idea that the government can learn more from a slice of information if it can put that information in the context of a broader pattern, a mosaic.
The court stated that the Supreme Court has not yet adopted the mosaic theory and has not required lower courts to apply it. As a result, the court of appeals declined to accept it in this case. Nonetheless, the court cautioned that the 18-month duration of surveillance “is concerning, even if permissible.” But it did not draw a line for a reasonable amount of time of surveillance, as it did not want to risk violating prior Supreme Court precedent.
The court of appeals affirmed the district court’s denial of Tuggle’s motion to suppress.
Read the full case: United States v. Tuggle
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