The Need to Address Warrantless Targeted Pole Camera Surveillance

The use of cameras has become common for law enforcement. For instance, in New York City, it was found that the New York City Police Department has access to over 15,000 surveillance cameras. While cameras stationed in public areas may be considered to indiscriminately record movement of people, law enforcement has also utilized cameras, particularly pole cameras, to conduct warrantless targeted surveillance of an individual. Different courts have tackled the issue of whether targeted pole camera surveillance of varying duration, where the pole camera is directed at a person’s home, is a search under the Fourth Amendment of the U.S. Constitution.

In February 2022, the Supreme Court denied a petition for a writ of certiorari challenging the decision of the Seventh Circuit of the U.S. Court of Appeals in Tuggle. Tuggle determined whether targeted pole camera surveillance, where the cameras are directed at a person’s home, is considered a “search” under the Fourth Amendment. The government conducted surveillance without a warrant for eighteen months. Tuggle held that the "current formulation of a Fourth Amendment search often turns on whether a used technology becomes widespread." The court concluded that “the government’s use of a technology in public use, while occupying a place it was lawfully entitled to be, to observe plainly visible happenings, did not run afoul of the Fourth Amendment.” Tuggle observed that the area monitored by the camera was plainly visible to the public and the length of surveillance did not affect its analysis since it did not reveal a comprehensive record of a person’s movements, considering that it monitored only one location.

Notably, Tuggle highlighted the existence of conflicting decisions on this issue. For instance, in Tafoya, the court held that the surveillance “involved a degree of intrusion that a reasonable person would not have anticipated.” Similar to Tuggle, the pole cameras were directed at a person’s residence. The surveillance was conducted for three months. Tafoya found the surveillance to be a search. However, it differentiated itself from Tuggle by considering that the pole camera in this case was used to surveil fenced in curtilage, as opposed to Tuggle where the public was given an unobstructed view of the area.

In Tuggle, the pole cameras recorded footage around the clock and made use of rudimentary lighting technology. The pole cameras also allowed law enforcement agents to remotely zoom, pan, and tilt the cameras and review the camera footage in real time. Moreover, the footage was stored and can later be reviewed. This was the type of technology which the court in Tuggle determined to be widespread and in “public use”.

The technology used in Tuggle is not the most sophisticated. Cameras paired with other technology can do more than record images or videos. For instance, we know that law enforcement is using facial recognition technology(FRT) to aid in the performance of its functions. Would pairing facial recognition technology with pole camera surveillance necessarily constitute a “search”? Following Kyllo, unlike devices which use thermal imaging, FRT would not necessarily allow a camera to record images which are unknowable without physical intrusion of one’s home. However, it would also depend whether a court considers FRT to be in general public use.

The Supreme Court denied the petition concerning Tuggle. However, the continuing advances in surveillance technology suggests it should address this issue. In fact, in Tuggle, the court claimed to be bound by Supreme Court precedent but expressed unease about this type of surveillance. We can only speculate whether the use of more sophisticated cameras than that used in Tuggle, or using cameras paired with other technologies such as FRT, would get the Supreme Court’s attention.

Significantly, Carpenter mentioned two guideposts, namely: (1) "the [Fourth] Amendment seeks to secure the “privacies of life” against “arbitrary power”"; and (2) "a central aim of the Framers was to place obstacles in the way of a too permeating police surveillance." Given these guideposts, there is room to argue that the surveillance involved in Tuggle involves a too permeating police surveillance. However, there are cases like Tuggle which hold that targeted pole camera surveillance, regardless of length, does not qualify as a search. Since a warrant would not be necessary, this creates risk that law enforcement can simply rely on reports or information which may have varying degrees of reliability.

In Carpenter, the Court highlighted that a person has “a reasonable expectation of privacy in the whole of his physical movements.” In connection to this, Tafoya correctly points out that the extended duration and continuity of the surveillance are constitutionally significant. As Tafoya also points out, long-term camera surveillance directed at a person’s home can still provide “a wealth of detail” about a person, particularly information about a person’s everyday habits, routines, or visitors. The cameras may also catch anything which comes in or out of a person’s home. Moreover, even if the area surrounding a home is considered part of the public sphere, Carpenter held that protection under the Fourth Amendment is still available.

All in all, the issue of warrantless targeted pole camera surveillance opens up possibilities of abuse and allows government intrusion in ways citizens do not expect. The fact that camera use is common or widespread should not diminish a person’s expectation that his or her movements will not be secretly monitored over a long period of time. Innovation should benefit, rather than burden, society. Advances in technology, or developments which make existing technologies more accessible, should not dictate what people expect to be private.