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10 Weeks of Non-Stop Camera Surveillance Is Not a Search

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By Jonathan R. Tung, Esq. on February 17, 2016 6:00 AM

According to a recent ruling by the Sixth Circuit, it's not a 'search' for the government to have a camera on a public utility pole pointed into your backyard -- even when the camera records evidence nonstop for ten weeks.

The Houston Family

The Houston brothers and local law enforcement were at each others' necks. In one incident, the brothers were involved in a shootout with police that left a civilian and officer dead. After a jury trial, they were acquitted when the brothers claimed self-defense.

Soon afterward, the local police heard rumors that the brothers were illegally stashing an arsenal in their backyard and were engaging in open carry in their Tennessee farm (compound). This was illegal because one of the brothers had a felony record.

So, the government agents drove by on the local streets to see if they could view anything incriminating. They couldn't.

Finally, they decided to set up a video camera on a public utility pole approximately 200 yards away from the trailer which was in the middle of the contested property. The recording, which ran for 10 weeks, revealed much -- including enough evidence to show that the brothers were violating gun laws.

Not a Search

A divided circuit finally concluded that the ten weeks of continuous surveillance did not amount to a search under the Fourth Amendment because the trailer was generally viewable by the public and therefore open. Places left open to public view do not enjoy a "reasonable expectation of privacy," the venerable wall that separates a Fourth Amendment valid search from an invalid one.

The finding of the court is essentially just a minor stretch of the basic "open fields doctrine" which states that a warrantless search outside of the owner's curtilage is Constitutional under the Fourth Amendment. The point being, of course, one keeps his most private matters within his curtilage.

Disagreement

It interesting to note that the recording revealed that the brothers occasionally spent nights in the trailer -- but this occasional use did not suddenly transforms the trailer into a form of curtilage for the purpose of the rule. Besides, it presumably had wheels.

Nonetheless, Judge Rose disagreed with the reasoning of the majority and pointed out that a ten week non-stop recording of the trailer and surrounding area was, essentially, a technical skirt around the main purpose of the Fourth Amendment. Non-stop surveillance, Judge Rose said, gave law enforcement an incredible insight into the movements, goings on, and intimate associations of the surveilled. In other words, according to Judge Rose, it may as well be as invasive as a traditional search.

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