Now You See Me: An Examination of the Legality of Police Use of Utility Pole Surveillance Cameras

• Author: Taylor Cutteridge
• Position: J.D. Candidate, Capital University Law School Class of 2020
• Pages: 75-102

NOW YOU SEE ME: AN EXAMINATION OF THE

LEGALITY OF POLICE

USE OF UTILITY POLE SURVEILLANCE CAMERAS

TAYLOR CUTTERIDGE*

I. INTRODUCTION

As technology advances, changes can be seen infiltrating every aspect

of human life, from the way we shop and order takeout to the way we pay

our bills and connect with others. It is visible in all sectors of the

professional world, including business, education, and especially law

enforcement.

Police departments are not isolated from advancing technology. Instead,

police departments must learn to adapt their procedures and protocols to

maintain safety and order both in the tangible world and in cyberspace.

Often, departments employ advanced technology along with more

traditional methods of surveillance and policing to keep up with changing

strides of criminality that are also borne out of technological changes.

1

One such method of surveillance now used by police depar tments all

over the United States is surveillance cameras mounted on utility poles,

telephone poles or other structures that allow police to “have an eye” in

specific neighborhoods, on different streets, or particularly focused on

persons of interest.

2

There has been much debate over this police practice.

3

The focus of this article is to illustrate why mounting a camera onto a

utility pole in a residential neighborhood for the purpose of monitoring an

* J.D. Candidate, Capital University Law School Class of 2020. The author thanks

everyone who assisted in the creation of this article. In particular, the author thanks Professor

Dan Kobil for his insight and revisionary comments which have helped shape this article and

for his guidance throughout this process.

1

See Stephen Rushin, The Judicial Response to Mass Police Surveillance, 2011 U. ILL.

J.L. TECH & POL’Y 281, 282.

2

Spencer S. Hsu, D.C. Forms Network of Surveill ance: Police Video Links Raise Rights

Issues, WASH. POST (Feb. 17, 2002),

https://www.washingtonpost.com/archive/local/2002/02/17/dc-forms-network-of-

surveillance/e1fcbaa4-7055-4862-a9eb-3288bbd4dfca/?noredirect=on

[https://perma.cc/Z8YX-DBFE] (citing a 2001 survey, which found that 80% are using

cameras in their jurisdictions).

3

See generally discussion infra Section IV.

76 CAPITAL UNIVERSITY LAW REVIEW [48:75

individual’s home should not be considered a search. This conclusion rests

on the conditi ons that the camera operates from a position that is openly

accessible and utilized by the public, that use of such a camera involves

technology that is also widely utilized by the public, that the camera provides

law enforcement officials only limited knowledge as to the individual’s

whereabouts, and use of the camera for surveillance is for a reasonable

period of time.

If police use of utility pole surveillance cameras constitutes a search

under the Fourth Amendment, which protects “persons, houses, papers, and

effects, against unreasonable searches,”

4

then police must first obtain a

warrant.

5

If police do not, the search will be presumed unreasonable and

any evidence they gain from such surveillance will be inadmissible in court.

6

However, if police use of utility pole surveillance cameras does not

constitute a search under the Fourth Amendment, police are not required to

obtain a warrant before beginning or while continuing surveillance.

7

If that

is the case, any information or evidence gained from the cameras will be

able to be used as a basis for later search or arrest warrants, and the evidence

will be admissible in court.

8

This would provide much more leeway to

police departments in deciding where to allocate resources, both personnel

and otherwise, as well as providing officers with a cheaper and efficient

alternative to in-person stakeouts.

9

Courts have disagreed for years over whether to consider police use of

mounted surveillance cameras a search.

10

The United States District Court

for the Eastern District of Washington decided the issue of police use of

utility pole surveillance cameras in 2014 in United States v. Vargas.

11

In

that case, the defendant, Leonel M. Vargas lived down a gravel path on

4

U.S. CONST. amend. IV.

5

Katz v. United States, 389 U.S. 347, 357 (1967) (citations omitted).

6

Id. (citations omitted).

7

M. Wesley Clark, Pole Cameras and Su rreptitious Surveillance, 78 FED. BUREAU

INVESTIGATION L. ENFORCEMENT BULL. 23, 24 (2009).

8

See Florida v. Riley, 488 U.S. 445, 449 (1989).

9

Ron LaPedis, How to Use Video Surveillanc e Camera Systems to Monitor Crime Hot

Spots, POLICEONE (July 20, 2018), https://www.policeone.com/police-

products/radios/surveillance/articles/476978006-How-to-use-video-surveillance-camera-

systems-to-monitor-crime-hot-spots/ [https://perma.cc/2337-TQNV].

10

Clark, supra note 7, at 24.

11

No. CR-13-6025-EFS (E.D. Wash. Dec. 15, 2014).