Candid Camera And Search Warrants

There are cameras out there. Lots of cameras. Some take a constant stream of video of a street corner, say 42nd and Broadway, where tens of thousands of people walk every day. Others go up for more particularized reasons, such as the camera affixed to a utility pole outside the trailer of the Houston brothers in Tennessee, where it remained for ten weeks.

What’s the difference? Not much, said the Sixth Circuit.

Such warrantless recording is permitted, the U.S. Court of Appeals for the 6th Circuit said, because people have “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.”

But what distinguishes these ten weeks of video from United States v. Jones, where the Supremes held that a GPS attached to a target’s car required a warrant?  That’s impossible to say, given that Jones offered no principle to guide the circuits. As with Jones, Orin Kerr ran through his litany of theories, but none of them provide any basis to determine when the use of intrusive technology crossed the invisible line so that a warrant is required.

In dissecting the Jones decision, it was clear that this would be a problem in need of an answer, and as Justice Sotomayor recognized, Jones offered nothing of use.

In my  earlier post about  Jones, I saw this case as being a litmus test for the Court’s recognition of the problems technology presented to the future of Fourth Amendment jurisprudence.

The question of whether the Supreme Court has both the depth of understanding of the nightmare potential technology brings to the Fourth Amendment, as well as the long-sightedness to realize that it’s decision will be extrapolated to all manner of technology that we have yet to conceive of, is about as scary as it comes.

That one justice of nine seems to have some appreciation of the danger ahead, how poorly law developed to deal with normal-sized coaches and full-height constables applies in the digital age, is better than nothing.  But given how the Court broke down here, it’s clearly not good enough.  

And the 6th Circuit’s opinion in United States v. Houston proved this to be correct, resorting to the silliness of trying to find a line beyond which the government, without a warrant, could not go.

“The ATF agents only observed what Houston made public to any person traveling on the roads surrounding the farm,” the court said, reasoning that the “agents had a right to access the public utility pole and the camera captured only views that were plainly visible to any member of the public who drove down the roads bordering the farm.”

Well, it’s true that the camera was on a utility pole, rather than the target’s car, and captured nothing more than what could be seen by anyone standing there. But then, no one could stand there for 10 weeks and watch. Not without being seen. Not without the occasional bathroom break. Not with the technological precision of a camera that caught and recorded everything.

At this point, the circuit went into excuse mode, explaining not why this was a constitutionally sound search, but why it wasn’t a constitutionally unsound one.

But the court also dismissed the notion that the length of surveillance mattered to its constitutional analysis, noting that “the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations.”

As George Washington University law professor Orin Kerr observed in a legal blog, the court appears to have employed an interest-balancing theory to reach its conclusion — that is, the surveillance is justified because it helps avoid giving wrongdoers “the upper hand.”

If the logic here begins to tear at the edges, don’t adjust your TV screen.

Moreover, if law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand. The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely. Instead, “[i]nsofar as respondent’s complaint appears to be simply that scientific devices . . . enabled the police to be more effective in detecting crime, it simply has no constitutional foundation.

And there’s a hole in their racket, too. Obviously, requiring a search warrant couldn’t conceivably give criminals “the upper hand,” but would deny law enforcement the “upper hand” in using technology to extend their reach to places they otherwise couldn’t go. This is a Herzberg Two-Factor distinction.

But knowing this does little to resolve the problem.  At PrawfsBlawg, Jonathan Witmer-Rich had some fun with the silliness of applying Jones in much the same way I did:

Those five justices suggest that courts should think about what is reasonable by considering what police actually might be able to do, rather than by positing tiny, indefatigable ATF agents who could sit unnoticed atop utility poles for ten weeks straight.  Clearly, the video surveillance in this case enabled the ATF to gain considerably more information about the Houstons than they could have reasonably obtained through in-person surveillance.

This shows the emptiness of the Jones decision in trying to craft a rule to apply to law enforcement’s use of technology by using the tricks of the trade employed in the past. What did the Founders have in mind when the Fourth Amendment was approved? Which analogy to bootlegger caselaw was closest? What expectations of privacy do reasonable people, who happen to hang out with appellate judges and Supreme Court justices, hold? Or, if you prefer Orin’s Equilibrium Theory, what maintains the relative balance of power between the cops and the bad dudes?

Beats me. Technological advances don’t fit within the paradigm of our jurisprudence anymore, so the courts continue to jam square pegs into round holes for lack of a new, principled paradigm. Don’t ask me what that new paradigm should be, as I have no answer.

The only thing about which I’m certain is that Sotomayor is right, that what we’re doing now doesn’t work and makes the law look ridiculously inept at its job of providing constitutional rules by which society functions. Think of the lulz when the justices confer to hash out their positions. It would make for a hysterical segment of Candid Camera.  Where’s Allen Funt when you need him?

18 thoughts on “Candid Camera And Search Warrants

  1. Levi

    So, since police are legally entitled to be on an even footing with criminals, are they saying that criminals already possessed the right to mount cameras on utility poles outside the police department building or perhaps outside of houses they are casing, so they can more efficiently determine traffic patterns? And if criminals can do it (since police are on their footing without a warrant), can the rest of us now mount cameras at will on any particular pole?

      1. Levi

        I was joking. But particularly regarding the arms race maintenance in Orin’s “equilibrium theory” article, I struggle with his assertion that the court embraces higher protections to counter enhanced government power from new technology. To me, it looks like when confronted with a new technology they either choose to permit it or prohibit it, but never go back and enforce a stronger protection than existed on the same basic activity in the first place. So, in this example, if the court were to decide that cameras on utility poles were not ok they do not go back and say “While we’re at it, stake-outs seem to be overused as it is. From now on, stake-outs are prohibited except when a normal member of the public might be expected to be parked on the side of the road for an extended period of time, such as during the day”. In Orin’s car-driving analogy, the court may choose to increase the gas to climb a hill but they never back off when going downhill.

  2. bmaz

    24 hour a day on a pole pointed directly at you? That’s cool.

    Any camera ever pointed at the Supreme Court bench? Never!!

    1. SHG Post author

      Irony, if we squint and don’t notice the mix of apples and Chevy’s. Not that I would point out the failure of the analogy, as that would be wrong.

      1. Dave

        Yes. The better analogy would be now to mount cameras on utility poles faced toward the bedroom windows of each Supreme Court Justice, recording 24/7. Because hey, any person who climbs up a utility pole would get that same view, right?

  3. losingtrader

    “But then, no one could stand there for 10 weeks and watch……. Not without the occasional bathroom break”

    You forgot about catheters. “Up to 200 per month delivered free to your home (or telephone pole or some kind of pole). ”

    I was surprised the GPS case was 9-0. Scalia must have been hunting out-of-season the week before so his reasoning changed again to fit the case.

  4. Curtis

    “Agents had a right to access the public utility pole.”

    A “right” that none of us enjoy.

    “All within the state, nothing outside the state, nothing against the state.”

    Do any of you carry those bonafides?

  5. OEH

    My favorite observation on this point was from City of Los Angeles v Patel:

    “JUSTICE KENNEDY: If you prevail in this case and a member of the Court sits down to write the opinion, does he or she have to use the phrase “reasonable expectation of privacy” and say there is no reasonable expectation of privacy in our society, in our culture, in our day, or do we just forget that phrase? In ­­ in a way, as we all know it’s circular, that if we say there is a reasonable expectation, then there is.”

  6. Wrongway

    A Possible Silver Lining could be that the next time a Cop tells someone to turn off their camera recording them in public, “hey, if yall can do it from a pole for 10 weeks, I can do it here for 10 minutes”..

    just a thought..

  7. KP

    “”just a thought..””

    …and a very good one too! Public servants should have no expectation of privacy from the people who employ them while working, the same as the checkout-chicks in supermarkets working under security cameras.

    But, so much new technology, so many bureaucratic systems to get up to speed. By the time they redefine the Constitution for cameras, there will already be micro-drones gathering all sorts of data like your smell or your voice.

    1. SHG Post author

      If you’re going to reply, try using the reply button. And if you’re going to dive deeper down the rabbit hole, try reddit. Nice tin foil hat, though.

Comments are closed.