Sixth Circuit Rules 10 Weeks of Camera Monitoring from Public Utility Pole Does Not Require a Warrant

A panel of the United States Court of Appeals for the Sixth Circuit ruled earlier this month in a case styled U.S. v. Houston (No. 14-5800) that a warrant was not required under the Fourth Amendment for federal agents to gather evidence of a defendant's activities in which he, according to the court, did not have a "reasonable expectation of privacy," despite the activities taking place on private property where the defendant lived.

The case concerned allegations that the defendant illegally possessed a number of firearms. The ATF had been unable to effectively monitor defendant's activity on the property through traditional means because the rural location of the property caused those monitoring efforts (drive-by surveillance) to "st[ick] out like a sore thumb." Thus, to monitor the defendant, the ATF directed a utility company to install a camera on a nearby public utility pole for a period of 10 weeks.

The panel found that no warrant was necessary and that the defendant's Fourth Amendment rights were not violated "when it was possible for any member of the public to have observed [the defendant's] activities during the surveillance period." The panel also expressed concern that requiring a warrant under such circumstances would lead to a technological advantage for criminals, as they would be able to one-sidedly benefit from the advance of technologies, while law enforcement could be mired in ever-evolving Fourth Amendment inquiries.

The panel made efforts to distinguish the case from concerns raised in Justice Alito's and Justice Sotomayor's 2012 concurring opinions in the Supreme Court's U.S. v. Jones, which related to long-term GPS monitoring. The panel reasoned that, unlike the GPS monitoring in Jones, a stationary camera on a utility pole does not have the potential to monitor and catalogue every move an individual makes over a period of time, or reveal significant details about that individual's activities, beliefs and affiliations.

U.S. District Judge Thomas M. Rose of the Southern District of Ohio, sitting on the panel by designation, parted from the majority opinion on certain points, noting in concurrence that the impracticality of government monitoring was a traditional, "ordinary check" against "abusive law enforcement practices" (internal quotations and citations omitted) and noting concerns relating to monitoring of a person's home, ultimately stating that "privacy concerns implicated by a fixed point of surveillance are equal, if not greater, when it is one's home that is under surveillance.";

Notably, the majority opinion of the Supreme Court in the above-referenced Jones case rested on traditional notions of trespass in the Fourth Amendment context, with Justice Alito (3 other Justices joining) and Justice Sotomayor each penning concurrences that analyzed evolving privacy concerns in light of technological change. The majority opinion was written by Justice Scalia, joined by only four other Justices. Given the lack of a clear, unified position at the Supreme Court, and in light of Justice Scalia's recent death, issues at the intersection of technology and the Fourth Amendment may be ripe for further consideration in coming Supreme Court terms, and may depend largely on the views of Justice Scalia's replacement on the Court.

Brian O'Reilly is an Associate in Locke Lord's Austin office. He can be reached at boreilly@lockelord.com.