A Court Divided on Telephone Pole Camera Surveillance

by Matthew Tokson

The First Circuit's long-awaited en banc decision on telephone pole camera surveillance of a home has finally arrived. But it's not clear what it means going forward, because the 6-judge court split on the issue 3-3. The dueling opinions take up a whopping 129 pages in total. And whether the police can set up a surveillance camera on a utility pole and point it at a person's house for months or years at a time remains ambiguous, with a developing split among courts and, now, a split inside the First Circuit itself. This post reviews the First Circuit's struggles with the pole camera issue and surveys the prospects for Supreme Court review of the issue in the near-term. 

The case involved ATF surveillance of the home of Nia Moore-Bush. Agents surreptitiously installed a camera near the top of a utility pole across the street from her residence. The camera recorded the front part of a Moore-Bush's house and yard and her full driveway for 8 months continuously, day and night. It could zoom in to capture facial expressions, small objects in a person's hands, details on clothing, license plates, and anything else of similar size. Over the 8 months, it "captured numerous comings, goings, and occurrences in the front curtilage of the residence" from the mundane to the personal to the potentially incriminating. The video was stored digitally.

An opinion by Judges Barron, Thompson, and Kayatta argues that the use of this pole camera was a "search" under the Fourth Amendment, requiring a warrant. The judges make several good points, which they unfortunately bury in an unreadably long (95-pages!), disorganized opinion. I'll try to unearth them.

A central issue in the case is whether the Supreme Court's recent holding in Carpenter v. United States applies. Carpenter held that the Fourth Amendment protects cell phone location data held by a third party, a potentially revolutionary holding that may extend Fourth Amendment protection to a variety of digital data. The Barron opinion applies Carpenter and repeatedly emphasizes several of the factors discussed in that decision.  

Indeed, the Barron opinion is clear that it is applying the principles of Carpenter in the manner of a doctrinal test. Echoing my forthcoming essay in the Illinois Law Review, the opinion concludes that "Carpenter, by its own terms, is not limited to situations in which the third-party doctrine is in play." That is, Carpenter and its factors can be used to resolve Fourth Amendment questions involving both a) data held by third parties and b) data collected directly by the government. 

In Moore-Bush, the data was collected directly by a government camera, and the Barron opinion overtly leans on Carpenter and its factors. It emphasizes that Carpenter has already provided "the principles that we rely on to find that the use of digital surveillance is a search under the Fourth Amendment." It adopts these principles and applies what I have termed "the Carpenter test." This test, emerging in the lower courts over the past several years, involves 3 factors: the revealing nature of the data collected, the amount of data collected, and whether the data was voluntarily revealed to another party. The Barron opinion addresses each of these factors repeatedly and in detail, discussing the revealing nature of the pole camera footage, the voluminous amount collected over 8 months, and the fact that homeowners generally cannot prevent the exposure of their activities to such surveillance (and accordingly do not really voluntarily disclose the activities). It also addresses another, less commonly discussed Carpenter factor: the cost of the surveillance. It describes at length pole cameras' low cost and increased risk to privacy relative to traditional, manned stake-outs.

The Barron opinion raises other arguments as well. For instance, it notes that a nosy neighbor who recorded a person with a video camera for 8 months straight could be sued for a privacy tort. Such behavior is “patently unreasonable," according to several prior tort cases. 

The opinion also downplays concerns about the difficulty of drawing a line between short and long duration surveillance, a practice that has been dubbed by some a "mosaic theory" and critiqued as overly complex and presenting an intractable line-drawing problem. The Barron opinion points out that courts encounter similar line drawing issues in numerous other areas. For example, short-duration police stops are permissible with less than probable cause, under Terry v. Ohio, but long-duration stops are not. Likewise, short-duration detention following a warrantless arrest is constitutional, but long-duration detention following a warrantless arrest is unconstitutional. The court lists several other examples. 

Finally, the Barron opinion makes a policy based argument about the consequences of leaving pole camera surveillance entirely unregulated under the Constitution. It notes that the opposing judges' approach would allow the government to obtain "continuous video footage of every home in a neighborhood, or for that matter, in the United States as a whole." It emphasizes the special protections traditionally afforded to the home under Fourth Amendment law. And it describes the likely chilling effects on associational and expressive freedoms of permitting the government to pervasively monitor its citizens' homes. 

What about the other 3 judges, Judges Lynch, Howard, and Gelpi? Their opinion is weaker, though admirably shorter, than the Barron opinion. They first contend that Carpenter doesn’t really apply here, because that opinion expressly noted that it didn’t apply to conventional surveillance tools like security cameras. The Lynch opinion argues that pole cameras, although not necessarily the traditional security cameras one sees in convenience stores and the like, have been around long enough to be considered conventional. At the least, Carpenter does not compel finding a search here, and the Lynch opinion would uphold a prior 1st Circuit panel decision from 2009 permitting the warrantless use of pole cameras. 

The Lynch opinion's main substantive argument is that people lack a reasonable expectation of privacy in the aggregate of their activities in the curtilage of their home because they should expect to be observed by their neighbors over time. People face "the reality that neighbors would come to know the patterns of when they left in the morning and returned in the evening," among other things. It is true that a neighbor may come to know things about your life over time. But the idea that neighborly observation is in the same ballpark as 24-7 video surveillance for 8 months quickly approaches the absurd.

The opinion posits that one's neighbor will create a record of sorts that is similar to that created by an always-on digital camera. It imagines that one's neighbor is a "retiree who has lived across the street for years and monitors activity seen from her windows and may...even record her observations." But imagining this monitor as a real person just highlights how different they are from a pole camera. To be equivalent to a pole camera, your neighbor would have to be obsessed with you, recording the license plate number of every person who visits your home, exactly when you leave and arrive home each day and what you are wearing or carrying, the face of everyone who enters the home and exactly when they arrive and leave, any objects you or they carry into and out of the home, and everything that occurs in the yard or porch or driveway. And they would do this every day, all day, and every night, all night, never sleeping, never moving, gazing with God-like constancy at their neighbors' home, for months and months on end. They would also have the ability to see in the dark and zoom in on small details, and they would be functionally invisible the entire time, in part because they would be only a few inches tall. 

In other words, I'm not sure how realistic the Lynch opinion's depiction of the typical neighbor is. Most people occasionally leave the house, sleep, are visible to others, and are not constantly making a record of their neighbors' activities. It is the typical neighbor, not the Eye of Sauron, who should provide the basis for assessments of reasonable expectations of privacy. Moreover, the police are free to talk to a suspect's neighbors in hopes of finding one both vigilant and obsessive enough to provide them with a comprehensive record of the suspect's activities. If neighbors like that existed outside the rarest of cases, the police might have little need of pole cameras.

The Lynch opinion also features an odd discussion of the potential for police abuse of pole cameras. It argues that, because pole cameras are not entirely "cost-free," the government will only use one if it "has reason to believe that the camera will provide information to assist investigators. If the camera provides such information, as was true here, the camera remains so long as it is useful. If the camera does not provide such information, it is removed." The Lynch opinion seems to be arguing that government agents would never abuse surveillance technology by using it when it isn't producing solid evidence. If this is truly what the judges believe, their naivete is shocking. Government agents have repeatedly abused, and continue to abuse, surveillance powers for political and personal gain. They are human beings, not angels. The Lynch opinion's conceptual approach is disturbing because it elides a core function of the Fourth Amendment: to prevent the overzealous or corrupt use of government investigative powers. And the logic of its argument would seem to undermine a whole host of constitutional rights -- a government incapable of abuses does not need to be limited by the procedural rights of the Fourth or Fifth or Sixth Amendments. It is no wonder, then, that the Lynch opinion would allow the government to conduct limitless video surveillance of any target they wish.    

Lastly, it's worth noting that 3 of the 6 judges ruling in this case are retiring pending confirmation of their successors, including 2 of the judges supporting the warrantless use of pole cameras. The split 1st Circuit may not stay split for long. 

But for now, the prospects for immediate Supreme Court review of this important issue seem unfavorable. The Court recently denied cert in United States v. Tuggle, a 7th Circuit case that found long-term pole camera surveillance lawful. Moore-Bush doesn't create a clean circuit split with Tuggle. And there are "vehicle problems" with the case, i.e. procedural complications that make it less desirable for a cert grant. The 3 judges who found a search here nonetheless ultimately ruled in favor of the government on the basis of the good-faith exception, which allows the government to use evidence collected under existing legal authority even if that authority is later overturned. This wrinkle, plus the odd 3-3 split on the merits, would complicate the Court's review and present a messy procedural posture. It also makes it less probable that a party will try to appeal to the Supreme Court in the first place. Most likely, the Court will await a subsequent federal case that creates a true split or another state supreme court case deepening the split between the 7th Circuit (no warrant needed for a pole camera) and a handful of state supreme courts (yes warrant needed for a pole camera). A pole camera case is still likely to reach the Supreme Court before too long. I'll keep you posted.