BIG BROTHER ISN'T WATCHING: HOW STATE V. JONES TRANSFORMED WHAT ONE CAN SEE WITH A NAKED EYE INTO A FOURTH AMENDMENT SEARCH.

• Author: Holmstrom, Alayna
• Position: Case overview

1. INTRODUCTION

   "The black mustachioed face gazed down from every commanding corner. There was one on the house-front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said, while the dark eyes looked deep into Winston's own." (1) The advancement of technology has, in the opinion of some, brought an Orwellian tone to the ability of the government to conduct surveillance of its citizens. (2) Indeed, as was recognized by the South Dakota Supreme Court, "unfettered use of surveillance technology could fundamentally alter the relationship between our government and its citizens[.]" (3) Courts have examined whether such long-term video surveillance constitutes a search, and overwhelmingly, cases conclude that what one exposes to the public is not protected. (4) Yet, in 2017, the South Dakota Supreme Court diverged from the precedent of the United States Supreme Court and other jurisdictions' interpretation of video surveillance. (5) In State v. Jones, the South Dakota Supreme Court concluded that the warrantless use of a pole camera outside of a residence constituted a search under the Fourth Amendment, requiring a warrant. (6) The majority incorrectly held that the use of a public pole camera was a violation of the Fourth Amendment because "controlling precedent is clear: mere visual observation does not constitute a [Fourth Amendment] search." (7) Instead, the Supreme Court of South Dakota deviated from the standard that the visual observation of a house that is in plain public view is "no 'search' at all." (8)

   This note argues that the warrantless use of a public pole camera in Jones was not a violation of the Fourth Amendment. (9) First, this note discusses the facts and procedure of State v. Jones. (10) Next, it provides background information on the Fourth Amendment, examining the adaptation of the Amendment's protections as technology fundamentally alters society, as well as the interpretation of the Fourth Amendment by the South Dakota Supreme Court and other jurisdictions. (11) Then, this note focuses on the South Dakota Supreme Court's deviation from United State Supreme Court precedent in United States v. Jones and other controlling precedent by adding a "quality-and-quantity" consideration when analyzing Fourth Amendment violations. (12) In doing so, this note will illustrate that the South Dakota Supreme Court majority in Jones erroneously found a Fourth Amendment violation by inserting this consideration into their analysis. (13) Ultimately, this note will demonstrate that the majority should have affirmed Jones's conviction on the ground that no warrant was required for the use of a public pole camera by the State of South Dakota. (14)

2. FACTS AND PROCEDURE

   On January 23, 2015, Brookings Police Detective Dana Rogers received an informant tip regarding the sale of large quantities of marijuana by the Defendant, Joseph A. Jones. (15) The informant detailed an operation involving the transportation of large quantities of marijuana from Jones's home in Brookings, South Dakota to Huron, South Dakota where Brady Schutt would sell it. (16) The informant noted that Schutt drove a red GMC truck when he would travel to Jones's trailer. (17) Because the informant did not give any other information, Detective Rogers confirmed the make and model of Schutt's vehicle and verified Jones's address. (18) After meeting with various DCI agents following the informant's tip, it was decided that a pole camera, owned by DCI, would be installed across from Jones's residence for immediate monitoring. (19) Detective Rogers subsequently arranged for the installation of the camera by a city employee. (20) Because he believed that law enforcement often used cameras without a warrant in public areas, and had done so in previous investigations, Detective Rogers did not obtain a warrant to install the camera. (21)

   Jones's residence was a trailer within the Lamplighter Village Trailer Park, close to the park's entrance, in Brookings. (22) The DCI pole camera was mounted to the top of a public utility pole across the street from Jones's mobile home on the corner of 4th Street and 3rd Avenue. (23) The camera was wired to the power of the public utility pole and was inside a box. (24) The camera was approximately two to four feet below the top of the light. (25) The box, but not the camera, was readily observable to the public eye. (26) The camera was aimed at Jones's mobile home, located nearest to the street as one enters into Lamplighter Village Trailer Park. (27) The vantage point of the camera included the street, Jones's front yard, the front door of the trailer, as well as the parking area for the trailer. (28) Jones did not have a fence or gate enclosure, or any other obstruction blocking the view of the front of his mobile home. (29) The pole camera's view was essentially the same as what one could view from a public sidewalk. (30)

   The camera allowed detectives to scan up and down, side to side, or zoom in and out. (31) Detective Rogers testified that although the camera had a zoom feature, when used the image would subsequently become blurry and distorted. (32) Although the camera did not have night vision, it recorded continuously throughout the night. (33) The location of Jones's mobile home was near two lights, one of the lights being the light on which the pole camera was installed, which sometimes illuminated the mobile home at night. (34) Due to the light, recordings could often capture vehicles or display shadows of individuals walking up to the mobile home in the evening. (35) The camera, however, only recorded public areas, and did not record activity within Jones's home. (36)

   The pole camera ran continuously from January 23, 2015 to March 19, 2015. (37) Footage could be viewed live by the detectives or at later times by viewing previously recorded footage. (38) Officers could determine when Jones's car was parked outside the mobile home, when he would leave and return, when visitors would arrive, where visitors would park in the trailer park, when Jones would leave the park with his trash, pedestrians walking by or to Jones's trailer, as well as other things noticeable to the public eye. (39) Through the use of the long-term surveillance, Detective Rogers observed vehicles associated with known drug offenders, including Schutt's red truck, arrive at varying times to Jones's mobile home. (40) Specifically, on March 6, 2015, Detective Rogers observed Jones place trash bags into his vehicle and return shortly after. (41) Assuming the trash bags were thrown away at the local trailer park dumpster, Rogers drove to the west side of the trailer park to the dumpster site and retrieved Jones's open trash bag, identified by a package addressed to Joseph Jones. (42) After bringing the trash back to the police station, detectives searched the bags and subsequently discovered drugs and paraphernalia. (43) Several days later, on March 11, the detectives again, through the pole camera, saw Jones load something in his car and return a short time later. (44) The detectives again went to the trailer dumpster, identified objects linking the trash bags to Jones, and found marijuana and drug paraphernalia after searching the bags. (45)

   Based on the information seen on the pole camera, Detective Rogers requested a warrant to install a GPS tracking device on Jones's vehicle, as well as a warrant to search Jones's residence. (46) These warrants were executed on March 19, and Jones was subsequently arrested. (47) Jones was charged with various drug offenses. (48) Later, he was indicted for three felonies: distribution or possession with intent to distribute marijuana, violation of a drug-free zone, and possession of a controlled substance. (49)

   On July 6, 2015, Jones filed a motion to suppress evidence, arguing that the State's use of the pole camera violated the Fourth Amendment. (50) Two weeks later, on July 25, the circuit court issued findings, conclusions, and an order denying Jones's motion to suppress. (51) The court held "[f]hat there was no physical invasion of [Jones's] residence or privacy, and the use of physical observation in this case, via a pole camera, was conducted on public property, and without trespassing onto [Jones's] property, and thus, no Fourth Amendment violation has occurred." (52) The circuit court further concluded that society would not recognize an "unfettered expectation of privacy" outside one's home. (53) On December 15th, a court trial on stipulated facts was held in which the trial court found Jones guilty on all three indictment counts. (54) On January 19, 2016, the circuit court sentenced Jones. (55) Nine days later, Jones appealed to the South Dakota Supreme Court on a variety of issues, including a violation of his Fourth Amendment rights based on the use of the pole camera. (56)

   On appeal, a divided South Dakota Supreme Court reversed the circuit court's decision, holding that the use of the pole camera violated the Fourth Amendment, but ultimately affirmed the application of the good-faith exception to the exclusionary rule. (57) Writing for the majority, Justice Wilbur held that the circuit court erred in denying Jones's motion to suppress. (58) The court held that the warrantless use of the camera constituted a Fourth Amendment search, determining that Detective Rogers was required to first obtain a warrant. (59)

   To reach this conclusion, the majority distinguished the facts of this case from other United States Supreme Court decisions, founded in part on the lack of an actual physical trespass. (60) Justice Wilbur reasoned that because the case before the court did not involve a physical trespass into a protected area, the analysis hinged on application of the two-part Katz test: whether Jones exhibited a subjective expectation of privacy that was objectively reasonable. (61) In doing so, the majority concluded that a recent United States Supreme Court decision...