Ten Weeks of Spy-Cam on Utility Pole Wasn't Search

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By Lance J. Rogers

Feb. 10 — The government didn't violate a man's reasonable expectation of privacy when it mounted a camera on a utility pole, pointed it at the man's home and let it run for 10 weeks without a warrant, the U.S. Court of Appeals for the Sixth Circuit ruled Feb. 8.

The decision is significant because it implies that there is no difference for purposes of a Fourth Amendment analysis between a nosy neighbor or utility worker briefly peeking into a person's yard and the government secretly mounting a camera from the same vantage point and shooting weeks of nonstop video without a warrant.

Same View as Passersby

In an opinion by Judge John M. Rogers, the court upheld Rocky Joe Houston's conviction for being a felon in possession of a firearm, ruling that video footage showing him carrying and occasionally shooting a rifle and a shotgun on a rural farm was admissible even though the government didn't have a warrant during the 10 weeks of constant surveillance.

“There is no Fourth Amendment violation, because Houston had 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,” the court said.

The court rejected Houston's argument that this was distinguishable from the typical “public view” cases because it would have been impractical, if not impossible, for a government agent to disguise himself as a construction worker and sit atop the pole for weeks.

Even if it wasn't practical for the agents to conduct in-person surveillance for the full 10 weeks, the court said, “it is only the possibility that a member of the public may observe activity from a public vantage point—not the actual practicability of law enforcement's doing so without technology—that is relevant for Fourth Amendment purposes.”

Video Versus Live Person

Judge Bernice B. Donald joined the opinion. Judge Thomas M. Rose, sitting by designation from the Southern District of Ohio, filed a concurrence, agreeing with the result based on harmless error but expressing misgivings about the breadth of the majority opinion regarding warrantless video surveillance.

The implication that the practicality of posting a live person at the public vantage point may not be relevant is worrisome, Rose wrote, because it dodges the ordinary checks that constrain abusive law enforcement practices: Limited police resources and community antipathy.

Rose also noted that 10 weeks of round-the-clock video surveillance of a person's house triggers unique privacy concerns because the information could reveal detailed information about the target's familial, political, professional, religious and sexual associations.

The Jaeger Firm PLLC, Erlanger, Ky., represented Houston. The U.S. Attorney's Office, Knoxville, Tenn., represented the government.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com