10th Circuit Appeals Court Says 68 Days Of Pole Camera Surveillance Doesn’t Violate 4th Amendment

Well, that's the way it goes. Courts have been extremely reluctant to disrupt the long-term surveillance plans of law enforcement. If investigators can mount a camera on public property and keep it focused on areas visible by members of the public, no harm, no foul.

Not every court has reached this same conclusion. Notably, one federal court ruled in 2019 that long-term surveillance of someone's home (even if just the outside of it) implicated the Supreme Court's Carpenter decision. The Supreme Court took issue with long-term surveillance of individuals, specifically their movements over time as memorialized by their smartphones. Thus, obtaining months or weeks of location data now required warrants.

This court applied Carpenter to eight months of continuous pole camera surveillance, ruling that it had a similar impact on personal privacy.

[T]he Government has no business knowing that someone other than the occupant's spouse visited the home late at night when the spouse was away and left early in the morning... Nor does the Government have any business tracking a homeowners' hobbies or regular trips for appointments. Perhaps people would hesitate to have supporters of opposition political parties visit if they knew that the Government might be monitoring their driveway.The continuous video taken by the Pole Camera thus threatens to chill these religious, political, and associational activities.

This decision remains an outlier. Pretty much every other precedential decision says otherwise. That includes the Seventh Circuit Appeals Court saying 18 months of continuous pole camera surveillance isn't a Fourth Amendment violation, even if it seemed to feel a wee bit bad about reaching that conclusion.

Although we now hold that the pole camera surveillance of the exterior of Tuggle's home did not constitute a Fourth Amendment search, we are not without unease about the implications of that surveillance for future cases. The eighteen-month duration of the government's pole camera surveillance-roughly four and twenty times the duration of the data collection in Carpenter and Jones, respectively-is concerning, even if permissible.

No such qualms from the Tenth Circuit, though. This case involves an investigation initiated by the Veteran's Administration, which (thanks to a tipster) became suspicious Bruce Hay wasn't quite as disabled as he said he was. So, the VA's investigators began monitoring Hay as he went about his daily life, hoping to find evidence showing he was wrongfully helping himself to disability payments. (h/t FourthAmendment.com)

Here's how the VA collected the evidence it used against Hays during his prosecution. From the decision [PDF]:

To investigate Mr. Hay's mobility, officers feigned an operation involving deer poaching on a nearby farm so that they could monitor Mr. Hay from a closer distance. They also tailed him to medical appointments and other events. For a more robust record of his daily activities, they installed a pole camera on a school rooftop across the street from Mr. Hay's house. The camera was remote controlled and activated by motion, and it recorded near constant footage of Mr. Hay's house as visible from across the street. All told, the camera captured 15 hours of footage per day for 68 days.

This was part of an investigation that apparently lasted six years. In that context, maybe 68 days just doesn't seem like that much? The Appeals Court isn't worried about how long it lasted, though. That doesn't really change anything in its analysis.

After first determining that a pole mounted camera aimed at publicly visible areas doesn't raise Fourth Amendment implications, the court moves on to Hay's invocation of the Carpenter decision. Hay's argument is basically this: short-term surveillance may be OK under Carpenter, but the ultimate point of the Supreme Court decision was that long-term surveillance was unconstitutional without a warrant.

According to Mr. Hay, the recording of his house for an extended period of time (68 days in this case) catalogs his habits, patterns, and visitors in a way that ordinary physical surveillance could not duplicate. As he puts it, the footage obtained painted an intimate portrait of Mr. Hay's personal life," including when he entered and exited his home; who visited him and his family," and what Mr. Hay did on his own front porch." He acknowledges that this activity took place in public but argues that [w]hile people subjectively lack an expectation of privacy in some discrete actions they undertake in unshielded areas around their homes, they do not expect that every such action will be observed and perfectly preserved for the future."

The Appeals Court disagrees. According to its take on that historic decision, it wasn't the length of the surveillance, it was the type of surveillance.

That the surveillance took place over an extended period of time does not change the basic logic of the opinion-camera surveillance of a home visible to passersby does not constitute a search. Nor does Carpenter change the equation.

The Tenth Circuit isn't alone in reaching this conclusion.

No circuit court has concluded that extended video surveillance of a house is a search under Carpenter.

What can be seen by the public in limited quantities isn't suddenly a constitutional violation because the watching eye goes 68 days without blinking.

Carpenter acknowledged that individuals have a privacy interest in the whole of their physical movements." The pole camera across the street from Mr. Hay came nowhere close to capturing the whole of his physical movements." It could only capture his movements at a single location, outside his house. As soon as he left his house, the government could no longer track him by this means.

As the Tenth sees it, the surveillance wasn't pervasive, in that it was limited to the exterior of the suspect's house. And it wasn't retrospective, like the harvesting of historical cell site location data from service providers. It may have been long-term but it didn't expose anything anyone else in Mr. Hay's neighborhood would have been able to see (even though they'd have to have stuck around for 68 days to see everything the government saw).

So, nothing to work with there if Hay tries to appeal this. And the final comments on this matter by the Tenth Circuit shows there aren't going to be any reversals of course in the future. Given the modern day reality of smartphones, body cams, drones, and AI, the future will probably hold fewer Fourth Amendment protections.

As video cameras proliferate throughout society, regrettably, the reasonable expectation of privacy from filming is diminished.

The government gets to keep doing what it's been doing for years. Sooner or later, an appeals court might take a flier on the Fourth in a long-term surveillance case, but as it stands now, unblinking eyes owned by the government are free to keep watch on anything visible to bystanders or passersby.