On February 8, 2016, the U.S. Court of Appeals for the 6th Circuit handed down a new ruling on technology, surveillance of citizens, and privacy.
Question #1: If the government sets up a video camera on a public utility pole and captures 10 weeks’ worth of video on a suspect’s property, is taking the video a “search” requiring a warrant under the Fourth Amendment?
No, it is not says a divided 6th Circuit decision in United States v. Houston.
The Facts: The Houston brothers had a long-running feud with local law enforcement. The Houstons were previously charged with murder, claimed self-defense and the jury acquitted them. Afterwards, the police heard reports that the Houstons were often in open possession of guns on their rural Tennessee farm. One of the Houstons had a 2004 conviction for felony evading arrest, which made his possession of a gun illegal.
Agents from the ATF tried to observe the farm but the agents “stuck out like a sore thumb” at the rural farm. So, they didn’t stay long.
Instead, the ATF agents set up a video camera on a public utility pole about 200 yards from the trailer on the farm. The camera was not noticeable to the Houstons and it recorded continuously for 10 weeks. The camera footage revealed evidence of gun possession. That video allowed the police to obtain search warrants to search the farm property. That search revealed 25 firearms.
A divided 6th Circuit held that the 10 weeks of video surveillance did not amount to a search. The Court held that there is no Fourth Amendment violation because Houston had no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads.
The warrantless video surveillance did not violate Houston’s reasonable expectations of privacy, because the ATF agents had a right to access the public utility pole and the camera only captured views that were plainly visible to any member of the public. Thus, Houston’s Fourth Amendment rights were not violated, because he has no reasonable expectation of privacy in what he “knowingly exposes to the public.” Katz v. United States, 389 U.S. 347, 351 (1967).
Yes, the views obtained by the ATF were plainly visible to the public—-if the public climbed up and atop a utility pole and watched the farm with binoculars.
Question #2: Would a police drone hovering in the air near your property for weeks while it recorded video of your back yard be considered a search? Should the police get a warrant first? Is that drone surveillance legal without a warrant? Yes, it is legal. No, it does not require a warrant. Police drone surveillance always conjure up notions of an Orwellian police state. But, for now, it is as legal as the video camera on the utility pole. Do you have an expectation of privacy in your back yard?