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Monday, February 08, 2016

Metaphysical Fourth Amendment question: how long could a tiny ATF agent sit atop a telephone pole?

Today the Sixth Circuit handed down a notable opinion squarely addressing the question, reserved in United States v. Jones, 132 S.Ct. 945 (2012), of how many ATF agents can fit on the head of a telephone pole whether longer-term surveillance by law enforcement infringes on a reasonable expectation of privacy—thus triggering Fourth Amendment protection. 

The majority held that the ten-week recording of several residences at a rural Tennessee farm, from a camera mounted on a public utility pole, did not infringe on the resident’s reasonable expectation of privacy.  District Judge Thomas Rose, sitting by designation, disagreed in a partial dissent.

This opinion is the latest in a long legal saga.  On May 11, 2006, Roane County (Tennessee) sheriff’s deputy Bill Jones, along with Mike Brown (a former officer), attempted to serve an arrest warrant on Rocky Houston.  When they arrived at the Houston family farm in rural Tennessee, they were shot and killed by Rocky Houston and his brother, Leon.  The Houstons were prosecuted for murder, but claimed they shot in self-defense.  After several mistrials, both brothers were acquitted.

The brothers achieved some notoriety by posting signs, as well as photographs of the dead men, as a warning to other law enforcement officers.

In April of 2010, Rocky Houston was convicted of reckless endangerment and evading arrest based on his conduct in a 2004 police chase.

While that conviction was pending on direct appeal, the Roane County Sheriff’s Department informed the ATF that Rocky, now a convicted felon (as of April 2010), was openly possessing firearms on his property.  The ATF tried to watch the property from the road, but had little luck as their vehicles “[stuck] out like a sore thumb.”  So the ATF installed a surveillance camera on a public utility pole overlooking the property.

The property is described as follows:

“Houston and his brother Leon Houston reside on the “Houston family farm,” which is comprised of three adjacent properties. Houston resides in a red brick building, Leon in a trailer, and Houston’s adult daughter in a farmhouse. Billboards and hand-painted signs critical of government officials and depicting the dead bodies of a law enforcement officer and his civilian ride-along companion (the murders of whom Houston and his brother were tried, but ultimately acquitted) hang approximately twenty yards off the road. While the farm is not enclosed by fencing or other artificial barriers, blue tarps blocked views of the trailer’s doors and foliage initially blocked views of Houston’s house.”

Slip op., at 2.

The ATF recorded footage from the camera for about ten weeks without a warrant.  The ATF could move the camera from side to side and zoom in.  After ten weeks, the ATF obtained a search warrant to continue using the camera—in response to an unpublished Sixth Circuit decision suggesting that such surveillance might require a warrant.

The two judges in the majority conclude that no warrant was required, because the ten-week video surveillance did not intrude into Rocky Houston’s reasonable expectation of privacy.  The majority reasons as follows:

"In arguing that the length of the surveillance period rendered the use of the pole camera unconstitutional, Houston relies on Anderson-Bagshaw, an unpublished opinion, in which we did not rule on the issue but expressed “some misgivings” about permitting warrantless pole camera surveillance of an individual’s backyard for over three weeks. 509 F. App’x at 405; see also 509 F. App’x at 420–24 (Moore, J., concurring). Houston also cites United States v. Jones, in which five Justices appeared willing to rule that warrantless long-term GPS monitoring of an automobile violates an individual’s reasonable expectation of privacy. 132 S. Ct. 945, 964 (Alito, J., concurring); id. at 955–56 (Sotomayor, J., concurring). However, unlike Justice Alito’s concern in Jones that long-term GPS monitoring would “secretly monitor and catalogue every single movement” that the defendant made, id. at 964 (Alito, J., concurring), the surveillance here was not so comprehensive as to monitor Houston’s every move; instead, the camera was stationary and only recorded his activities outdoors on the farm. Because the camera did not track Houston’s movements away from the farm, the camera did not do what Justice Sotomayor expressed concern about with respect to GPS tracking: “generate[] a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. at 955 (Sotomayor, J., concurring). Indeed, we recognized as much in Anderson-Bagshaw, the case upon which Houston relies, when we stated that “it may be that the privacy concerns implicated by a fixed point of surveillance are not so great as those implicated by GPS tracking.” 509 F. App’x at 405. Thus, notwithstanding the concurrences in Jones and dicta in our unpublished opinion, the results in Knotts, Forest, and Skinner indicate that long-term warrantless surveillance via a stationary pole camera does not violate a defendant’s Fourth Amendment rights when it was possible for any member of the public to have observed the defendant’s activities during the surveillance period.

"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.” Knotts, 460 U.S. at 284."

Slip op., at 8-9.

Judge Rose, dissenting, argues as follows:

"The lead opinion posits that “the ATF . . . could have staffed an agent disguised as a construction worker to sit atop the pole or perhaps dressed as an agent in camouflage to observe the farm from ground level for ten weeks.” While United States v. Skinner, 690 F.3d 772, 780 (6th Cir. 2012), implies that the actual practicability of law enforcement observing activity from a public vantage point may not be relevant, this Court has also sifted from the panoply of opinions in United States v. Jones the concern that long-term non-human surreptitious surveillance “is worrisome because ‘it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.”’” United States v. Anderson-Bagshaw, 509 F. App’x 396, 422 (6th Cir. 2012)(quoting United States v. Jones, 565 U.S. ––––, 132 S. Ct. 945, 956, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring) (quoting Illinois v. Lidster, 540 U.S. 419, 426, 124 S. Ct. 885, 157 L.Ed.2d 843 (2004))).

"Also, I find unconvincing the claim that, because this case involves a camera focused on Defendant’s house, and not a monitor affixed to a car, the Government cannot gather “a wealth of detail about [defendant’s] familial, political, professional, religious, and sexual associations” 132 S. Ct. at 955. Here, familial relations with Defendant’s brother and daughter were studied. Surely, in most cases, ten weeks of video surveillance of one’s house could reveal considerable knowledge of one’s comings and goings for professional and religious reasons, not to mention possible receptions of others for these and possibly political purposes. Also, by constant surreptitious technological viewing of Defendant’s house, the Government knew Defendant “occasionally slept” in his trailer. The privacy concerns implicated by a fixed point of surveillance are equal, if not greater, when it is one’s home that is under surveillance.

"Finally, I do not have the same concern that “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.” Expediency in this particular situation is not our concern. It is for the police to work within constitutionally permitted means. Fortunately, no one proposes that law enforcement should “be powerless to thwart such behavior.” Law enforcement would have the power to obtain a search warrant, returning to them the upper hand."

Slip op., at 18-19.

Judge Rose voted to affirm the conviction and sentence anyway, because other evidence—gathered with a properly-issued search warrant and through other means as well—was “overwhelming.”

I think Judge Rose has the better of the argument here, applying the concerns articulated by Justice Sotomayor, and by Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan), in Jones.  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.

Moreover, the length of this surveillance would allow the police to gather considerable information about the personal, private lives of the persons who live at or visit the property--when they come and go, what they do on the property, who they spend time with, what time they turn out the lights at night, and so on.

Finally, while the judges do not mention this factor, the politically-charged nature of the relationship between the targets of the surveillance and the local political establishment is yet another reason to require Fourth Amendment protection.  From what facts I can garner, my sympathies lie firmly with the local law enforcement agencies, and with the friends and families of the two men who were killed attempting to serve an arrest warrant.  But wherever your sympathies lie, it is clear that the Houston family was being targeted (perhaps justly) by local law enforcement.  All the more reason to require the relatively simple step of persuading a local magistrate that this intrusive, long-term surveillance was supported by probable cause.

Posted by Jonathan Witmer-Rich on February 8, 2016 at 03:49 PM | Permalink


Jonathan, interesting answers. If three days is what the Fourth Amendment mandates, in your view, then how long a period would you allow as a reasonable legislative judgment? Could a legislature allow (say) five days or a week of monitoring before a warrant was obtained, even if the Constitution actually limits the permitted monitoring to three days?

Posted by: Orin Kerr | Feb 9, 2016 9:13:45 PM

Asher: "Why does it matter what police could practically do with in-person surveillance?"

Because the development of surveillance technology threatens to radically reduce individual privacy from government intrusion, and a core purpose of the Fourth Amendment (providing a right against "unreasonable search and seizure") is to protect individuals from some forms of government intrusion.

Katz clearly does ask a normative question, not merely a factual one, and in that regard it mirrors the text of the Fourth Amendment which poses a normative question--what is "reasonable"?

In that normative context, past police practices are not dispositive. But to the extent we believe that past practices featured a relatively good balance between allowing important police investigation and protecting individual privacy, then it makes sense to compare new, dramatic surveillance techniques to those past practices, as a sort of metric for evaluating what seems normatively reasonable or unreasonable.

Posted by: Jonathan Witmer-Rich | Feb 9, 2016 1:12:26 PM

"we do have cameras, and have had them for a century"

Did we have this sort of monitoring in 1915? I think not - the advancement of technology allowing much comprehensive, intensive tracking is one reason why there is more concern now for limits.

Posted by: Joe | Feb 9, 2016 10:35:20 AM

Before U.S. v. Jones, the Supreme Court in passing noted that they were not deciding 24/7 tracking, and the comprehensive nature of such surveillance as a matter of "reasonableness" is different than short term efforts. Alito's concurrence in Jones cited the difference too though did not say how much under a month was too "lengthy." This would suggest some ability to use legislative discretion.

Time is also an issue for regular search and seizure moments, such as a car stop or a search at an airport. The TIME it takes is relevant, at some point it being too long. A lengthy stop can become an illegal "seizure."

Of course, these people and cases might have been wrong, but doesn't seem so to me. As to what is "reasonable," that is going to be a developing thing. Again, there is some legislative discretion there to draw lines (three days? who knows), especially when it is a camera pointing at one's home, not on a mountain somewhere or more realistically on the roads.

Also, this isn't just a criminal gaming tool since a warrant can be obtained; like here, it often will easily be obtained. But, that provides a check.

Posted by: Joe | Feb 9, 2016 10:27:26 AM

Why three days? Why does it matter what police could practically do with in-person surveillance? One reason that I could imagine it mattering is a kind of reasonable expectations argument; one wouldn't expect the police to obtain so much information because it's not practical. But that really breaks down in all sorts of ways. For one thing, at any given moment, it's unreasonable to expect that the police aren't going to look at what's in plain view on your farm, so how does the aggregate of all these moments which it's reasonable to expect police will see become unreasonable to expect police will see? For another, once you start talking about police's practical capabilities, aren't you assuming that Katz isn't so much a normative inquiry (to which those capabilities would be irrelevant) as it is this odd game where we exclude evidence in situations where criminals could expect, based on available information about the capabilities of the police, that they aren't being watched? That model doesn't have a lot of appeal to me, or make sense in all sorts of cases; there are all kinds of places that are practically difficult to surveil where no Fourth Amendment protection could possibly attach (e.g., I climb Mount McKinley to make a drug deal). For another thing, we do have cameras, and have had them for a century, so what kind of construct of reasonable expectations leaves them out? If your farm isn't surrounded by walls and there are places outside the farm to mount cameras, it's reasonable to expect that the police might mount a camera. If you're driving on an interstate, it's reasonable to expect that surveillance footage from multiple cameras can piece together your whole drive. I really don't see how one reasons to a place where the practical in-person capabilities of the police are relevant here, unless one's a very peculiar sort of original-expectations originalist who believes the Fourth Amendment affords exactly the degree of protection that its drafters expected it to afford, as applied to particular cases.

Posted by: Asher Steinberg | Feb 9, 2016 12:50:48 AM

"After ten weeks, the ATF obtained a search warrant to continue using the camera"

Does seem this could have been avoided.

Posted by: Joe | Feb 8, 2016 8:01:21 PM

Orin--First I would like a legislature to take a crack at this, and I would defer to a reasonable legislative judgment. How about: camera surveillance for up to 3 days is okay, after that a warrant is required.

I'm tempted to say get a warrant immediately (absent some exigency, of course), but probably some relatively short amount of time should be permissible even without a warrant. Say police want to watch the house for two hours, but want to stay out of view. A cop sets up a camera and waits a block away (or even, ducks down behind a bush near the camera), then comes and gets the camera after seeing the suspect in the yard with a gun. That is not very intrusive, not much data collected, etc.

But if the cops want to watch for any significant length of time (more than a day or three), then get a warrant.

Posted by: Jonathan Witmer-Rich | Feb 8, 2016 7:08:52 PM

Thanks for the interesting post, Jonathan. In your view, how long could the camera be up before the government was required to obtain a warrant?

Posted by: Orin Kerr | Feb 8, 2016 4:21:13 PM

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