Seventh Circuit Again Says Long-Term Pole Camera Surveillance Isn’t Unconstitutional

The Seventh Circuit Appeals Court was somewhat hesitant to bless the 18 months of pole camera surveillance in the Tuggle case back in 2021. The reluctance to state affirmatively this sort of surveillance will always be constitutional shows up in its most recent decision dealing with the same subject matter. Here’s the court expressing its concerns about the legal standard for government surveillance tech in its 2021 decision:

Despite its best intentions, this expectations-based Katz test has paved the way for a perilous circularity for new technology. Specifically, our current formulation of a Fourth Amendment search often turns on whether a used technology becomes widespread. Stated differently, as society’s uptake of a new technology waxes—cars, GPS devices, cameras, and the Internet come to mind—expectations of privacy in those technologies wane. In today’s interconnected, globalized, and increasingly digital world, for example, Americans largely accept that cell phones will track their locations, their Internet usage will leave digital footprints, and ever-watching fixed cameras will monitor their movements. These evolving expectations thus continually undermine themselves.

As long as the government moves discreetly with the times, its use of advanced technologies will likely not breach society’s reconstituted (non)expectations of privacy. The upshot: the Katz test as currently interpreted may eventually afford the government ever-wider latitude over the most sophisticated, intrusive, and all-knowing technologies with lessening constitutional constraints.

But the end result is still the same: the 13 months of pole-mounted camera surveillance is, necessarily, just as constitutional as the 18 months in the case that preceded it. From the decision [PDF]:

While House does not take issue with the isolated use of pole camera surveillance, he argues that the prolonged use of a warrantless pole camera constitutes a Fourth Amendment search. See Appellant’s Br. at 12 (“[O]ne has no reasonable expectation of privacy in the discrete moments of intimacy that may occur in the front of one’s home …, [but] it does not follow that the same is true with respect to an aggregation of those moments over many months.”) (quoting Moore-Bush, 36 F.4th at 336) (Appellant’s emphases).

This case is not the vehicle to challenge the duration of the surveillance of House’s residence. Warrantless pole cameras surveilled Tuggle’s residence for eighteen months, House’s residence was surveilled with a pole camera for thirteen months. Even if the duration of warrantless surveillance may be otherwise relevant, a challenge to the shorter surveillance here is foreclosed by Tuggle.

So, that’s an insurmountable obstacle when trying to suppress evidence in this circuit, even if lower courts may occasionally agree many months of uninterrupted surveillance should be viewed as something different than the rhetorical 13-month, 24/7 stakeout this tech is meant to represent.

If the public can see your front door and — as in this case — watch you head outside to pick up delivered packages and then, shortly thereafter, enjoy an almost immediate influx of visitors to your home, then it’s hardly prudent to ask cops to turn a blind (unblinking) eye to activities any citizen can plainly see.

But the bigger problem is that this isn’t exactly an analog for cops in unmarked cars engaging in stakeouts outside of a criminal suspect’s house. For one thing, the camera’s footage was recorded, which meant any moment in (recorded) time could be accessed at will. In addition, the camera could be actively controlled to zoom in on the house and the visitors that arrived shortly after the packages of presumed contraband. Sure, binoculars can do the same thing but binoculars don’t allow investigators to run screenshots through facial recognition databases or cross-reference people’s movements via other deployed surveillance methods/programs. Investigators might be able to do this without the use of a pole-mounted camera, but they’d have to be as tireless and accurate as the tech when trying to link incidents that occurred weeks prior to whatever has just been observed in real time.

But the case law is clear, even with the addition of the Supreme Court’s Carpenter decision to the mix — one that raised a lot of questions about the unassailability of the Third Party Doctrine and, more importantly, how expectations of privacy have changed since 1979, when the Supreme Court unilaterally demolished a whole lot of presumptive warrant requirements.

There’s a mosaic effect in play now, given the advancements in surveillance tech, as well as the uptake of devices that can be used, post facto, to engage in long-term surveillance of individuals without ever having to obtain a warrant. That’s something the concurring opinion highlights on its way to affirming what the majority ruled in the main opinion. While this court is bound by its own precedent, the concurring opinion says it’s far past time to stop being bound by precedent because surveillance tech is never at a standstill.

I, like the three concurring judges in United States v. Moore-Bush (first concurrence), would conclude that developments in Fourth Amendment jurisprudence along with developments in technology would support the overruling of our precedent in Tuggle.

[…]

Whatever the Supreme Court and this court have said about a reasonable person’s expectation of privacy in the situation where officers watch one discrete activity viewed at one particular time, the analysis is unquestionably different when the police observe every movement, activity, and association over the course of one month at one of the more intimate and protected of locations—the curtilage of one’s home. And as the power and scope of technology increases, courts will need to reckon with how these new technologies change citizens’ expectations of privacy in a world where pole camera video can scan and identify faces, read license plates, zoom in on what a person is doing on their phone, and compare actions and activities across various public surveillance systems.

Without a doubt, this Appeals Court will see another challenge of pole camera-derived evidence. And when it does, hopefully it will spend less time trying to explain its actions with increasingly outdated precedent and try to stay abreast of current developments. Relying on precedent that means less and less every year only ensures Americans’ rights will continue to be a trailing indicator of tech advances. And while I understand the reluctance to erect warrant requirements because a tech product does something some cop could do in person, the simple fact is that no law enforcement officer would ever be willing to emulate the 24/7 aspects of the tech they deploy.