Sixth Circuit: Continuous, Warrantless Fixed-Point Surveillance Okay
Ten weeks of continuous, warrantless surveillance from a public utility pole did not violate a defendant’s Fourth Amendment rights, the Sixth Circuit held.
Rocky Houston was a convicted felon who lived at a family farm compound, comprised of a brick building, a trailer, and a farmhouse. Billboards and hand-painted signs critical of government officials and depicting the dead bodies of a law enforcement officer and his civilian ride-along companion (the murder of whom Houston and his brother were tried, but ultimately acquitted) hung approximately twenty yards off the road. Blue tarps blocked views of the trailer’s doors and foliage blocked views of Houston’s house.
Initial ATF attempts at drive-by surveillance of the farm were unsuccessful because their vehicles “stuck out like a sore thumb” at the rural property. So, the ATF directed the utility company to install a surveillance camera on a public utility pole located roughly 200 yard from the farm’s trailer, without a warrant. At trial, an ATF agent testified that the camera’s view was identical to what agents would have observed had they driven down the public roads surrounding Houston’s farm.
Warrantless monitoring of the farm continued for ten weeks until the Sixth Circuit issued a decision expressing “some misgivings” about the constitutionality of long-term warrantless surveillance of an individual’s backyard via a pole camera. At that point, the ATF obtain a warrant for the continued use of the pole camera watching Houston’s farm.
Soon thereafter, ATF agents arrested Houston and executed search warrants for the three residences on the farm, seizing twenty-five firearms attributable to Houston and his brother. The government subsequently pursued a single count of being a felon in continuous possession of a firearm. Over Houston’s motion to suppress, the district court allowed the government to present the pole footage showing Houston possessing firearms at the farm at trial. A jury convicted Houston and he was sentenced to 108 months in prison. Houston then appealed his conviction to the U.S. Court of Appeals for the Sixth Circuit.
On appeal, Houston argued, in part, that the video footage used to convict him was obtained through a violation of his Fourth Amendment rights. The Sixth Circuit disagreed, reasoning that Houston had no reasonable expectation of privacy in the activity captured by the pole camera because the camera had the same view enjoyed by passersby on public roads. In other words, the footage only captured what Houston made public to any person traveling on the roads surrounding the farm.
The appeals court further clarified that its prior “misgivings” about the constitutionality of continuous, warrantless electronic surveillance were merely dicta, and that now presented with a live controversy on the issue, it did not believe that continuous monitoring from a fixed point violated the Fourth Amendment. The court reasoned that in Houston’s case, the ATF could theoretically staffed an agent under disguise to sit atop the utility pole and obtain the same footage captured by the surveillance camera. The Fourth Amendment does not require law enforcement to go to such lengths when more efficient methods are available, the court held.
The court also wrote that even if the ATF could not have practically obtained the same surveillance without the camera, the footage was still acceptable obtained because any member of the public could have made the same observations over the ten-week period as the camera.
The court concluded its discussion of the issue by acknowledging, “if law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand. The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely.”
The court thus held that the surveillance camera footage was properly admitted into evidence at Houston’s trial.
Read the full case: United States v. Houston
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Posted in Case Law Update
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