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. I NTRODUCTION 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 departments 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 Surveillance : Police Video Links Raise Rights Issues , WASH. POST (Feb. 17, 2002), https://www.washingtonpost.com/archive/local/2002/02/17/dc-forms-network-ofsurveillance/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 conditions 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 Surreptitious 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 Surveillance 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). 2020] LEGALITY OF UTILITY POLE SURVEILLANCE CAMERAS 77 Washington farmland. 12 Undeveloped land, natural vegetation, and a fence surrounded Vargas’s property on different sides, and separated it from the road leading to his gravel driveway. 13 Law enforcement installed a hidden video camera on a utility pole across the street from Mr. Vargas’s home and in view of the entire property. 14 The camera operated from April 4, 2013, until at least May 16, 2013, when Vargas was arrested and charged with “alien in possession of a firearm . . . and intent to distribute 5 grams or more of actual meth.” 15 Conduct observed by law enforcement via the surveillance camera led to these charges. 16 “Vargas filed a motion to suppress the” video footage, claiming the use of the surveillance camera violated his Fourth Amendment rights. 17 The court agreed, applying the “reasonable-expectation-of privacy approach requir[ing] the court to assess whether 1) Mr. Vargas had an actual (subjective) expectation that the activities in his front yard would be private, and 2) ‘society is prepared to recognize [his subjective expectation of privacy] as reasonable.’” 18 The court found that Vargas’s front yard was part of his curtilage, and therefore subject to a reasonable expectation of privacy. 19 The court also noted that had police officers personally sat atop the utility pole and observed Vargas’s property continuously as did the surveillance camera, such action “would not constitute a search” but the “view” afforded to him by the camera was “so different in its intrusiveness that it d[id] not qualify as a plain-view observation.” 20 The conclusion reached in Vargas was borne out of the specific facts regarding the nature of Vargas’s home. He lived in a secluded area away from any neighbors, streetlights, and other typical items found in a more suburban or urban neighborhood. 21 Vargas allowed his surroundings to 12 Id. at 2. 13 Id. at 3. 14 Id. at 4. 15 Id. at 9. The Order states that “the recording contains footage until . . . May 17, 2014,” however given the preceding text it is likely that this is an error and the correct date should read May 17, 2013. Id. 16 Id. at 5–9. 17 Id. at 9. 18 Id. at 13 (quoting United States v. Lopez-Cruz, 730 F.3d 803, 807 (9th Cir. 2013)). 19 Id. at 14–15. 20 Id. at 19–20. 21 See id. at 2. 78 CAPITAL UNIVERSITY LAW REVIEW [48:75 create a sort of cocoon around his property and shield him from outsiders, including the searching eye of law enforcement. 22 There was no way police could have stood at the road from which his driveway separated and observed any activity whatsoever in Vargas’s yard, including the conduct that resulted in his arrest. 23 But should the same outcome be reached if the defendant in question lived in what we would describe as a typical neighborhood, with smaller yards and houses in closer proximity than the landscape described in Vargas ? The United States District Court for the District of Arizona answered negatively in United States v. Brooks . 24 In that case, law enforcement, without obtaining a warrant, mounted and aimed a camera at Mr. Brooks’s co-defendant’s apartment building in Glendale, Arizona, located across the street from an arena. 25 “[T]he camera was fixed, but [could] zoom and pan,” and “was manually operated” by officers for nearly five months. 26 Using footage from the camera, which was mounted on the physical structure of the arena, 27 police determined that Mr. Brooks and his co-defendant were shipping drugs by mail. 28 Mr. Brooks filed a motion to suppress the evidence obtained via the camera, claiming that “a ‘majority’ of Supreme Court Justices would not allow long-term pole camera surveillance because the documenting and cataloging of one’s daily associations would develop a picture of one’s life that a person would reasonably expect to keep private.” 29 The court rejected this argument, however, stating that: officers had a right and permission to mount a camera on the arena, and law enforcement’s use of the pole camera . . . was “a prudent and efficient use of modern technology” to enhance their sense of sight and allowed for law enforcement to see “what may be seen” from a public vantage point where they had a right to be. 30 22 Id. at 16. 23 Id. 24 911 F. Supp. 2d 836, 843 (D. Ariz. 2012). 25 Id. at 837–38. 26 Id. at 838–40. 27 Id. at 843. 28 Id. at 839. 29 Id. at 841. 30 Id. at 843. 2020] LEGALITY OF UTILITY POLE SURVEILLANCE CAMERAS 79 Additionally, the court highlighted that any person inside the apartment complex or in the parking lot of the hockey arena could have seen the focal point of the camera. 31 Therefore, the court held that the use of the camera was not a search under the Fourth Amendment. 32 Police had no need “to seek a warrant before using” it, and Mr. Brooks’s motion was denied. 33 The focus of this article is to explain why police use of utility pole cameras for surveillance does not constitute a search under the Fourth Amendment. This article begins with a discussion of some background on police use of cameras for surveillance. It then details the Supreme Court of the United States’ rulings on the use of technology and its various Fourth...