A federal appeals court is upholding the firearms conviction of a Tennessee man whose brother's rural farm was monitored for 10 weeks straight by a remote-controlled camera the authorities installed on a utility pole 200 yards away—without a warrant.
The decision (PDF) by the 6th US Circuit Court of Appeals affirms the nine-year sentence of a man named Rocky Houston, who was caught by the camera as being a felon in possession of a gun. The man was on a Roane County Sheriff's Office watch list after he was cleared of murder charges following a gun battle that left a Roane County law enforcement official dead in 2006.
"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," Judge John Rogers wrote for the unanimous court, which ruled 3-0 to uphold Houston's 2014 conviction. "The ATF agents only observed what Houston made public to any person traveling on the roads surrounding the farm. Additionally, the length of the surveillance did not render the use of the pole camera unconstitutional, because the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations. While the ATF agents could have stationed agents round-the-clock to observe Houston’s farm in person, the fact that they instead used a camera to conduct the surveillance does not make the surveillance unconstitutional."
The Cincinnati, Ohio-based appellate court added:
"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."
The decision conflicts sharply with a Washington state federal judge who in 2014 tossed an alleged drug dealer's conviction that was gained under the same circumstances, the warrantless spying of a suspect via a webcam attached to a utility pole near his property. In May, the government dropped its appeal of that decision, without providing any reason.
John Whitehead, president of The Rutherford Institute, said the ruling is bad news for privacy.
"Obviously, the new era of technology, one that was completely unimaginable to the men who drafted the Constitution and the Bill of Rights, requires an updated legal code to enshrine the right to privacy. New technologies which enable the radical expansion of police surveillance operations require correspondingly robust legal frameworks in order to maintain the scope of freedom from authoritarian oversight envisioned by the Framers," he said.
The Roane County Sheriff's Department brought in the Bureau of Alcohol, Tobacco, Firearms and Explosives to investigate whether Houston had been in illegal possession of firearms. Houston and his brother had erected billboards on their property that included crime scene pictures of that 2006 gun battle. Local authorities told the ATF that Houston, convicted in 2004 of a felony for evading arrest, was patrolling that property while armed. ATF agents were unable to surveil the farm because their vehicles stuck out "like a sore thumb," according to the court record.
As a result, on October 9, 2012, at the direction of the ATF and without a warrant, the utility company installed a surveillance camera on a public utility pole located roughly 200 yards from Leon’s trailer. The camera broadcasted its recordings via an encrypted signal to an IP address accessed through a log-in and password. The camera could move left and right and had a zoom function. The ATF agents trained the camera primarily on Leon’s trailer and a nearby barn because they understood that Houston spent most of his time in and around the trailer and occasionally slept there. At trial, an ATF agent (Special Agent Dobbs) testified that the view that the camera captured was identical to what the agents would have observed if they had driven down the public roads surrounding the farm.
The lower court ruled in Houston's case that, even if the long-term warrantless surveillance breached Houston's Fourth Amendment rights, the video evidence of his carrying weapons on the property would not be excluded at trial because the authorities said they held a good-faith belief that the spying was constitutional.
Writing separately, Judge Thomas Rose said that the authorities had enough probable cause to get a warrant, and that their failure to do so was "harmless."
"Whether or not there is a Constitutional right not to have the Government focus a remotely operated surveillance device on one’s house for ten-week stretches without a warrant, any error was harmless, because the search warrant application would have been approved absent any potentially prohibited evidence and the other evidence that Defendant possessed a firearm on January 11, 2013 was overwhelming," Judge Rose said.
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