In this case from the Eastern District of Wisconsin, the Government accumulated video surveillance footage of the rear of the Defendant’s home (back yard) from a camera installed on the defendant’s neighbor’s property. In this case, the defendant filed a motion to suppress, citing Jones and Carpenter, but instead of asking for an evidentiary hearing, defense counsel provided the court with an aerial photo from Google Maps and a copy of the search warrant as attachments to the Motion.
The government’s response was that the defendant “fail[ed] to establish how or why the surveillance camera was installed or provide any facts from which the court can find that either its installation or the resulting video constitute[d] an unreasonable search.”
The Magistrate Judge concluded that the defendant had failed to support his motion with any evidence that the video camera captured anything that was not exposed to public view. The judge noted that the Google map photo did not provide any information about things like the height of the fence, what a passerby could see from the street, the capabilities of the surveillance camera, or what one could see from the neighbor’s property.
The judge also noted that Jones and Carpenter did not call into question conventional surveillance techniques and tools, such as security cameras.
The District Court in review criticized defense counsel’s one paragraph general objection to the Magistrate Judge’s report which failed to identify any factual findings with which he disagreed (which, given the sparse presentation of facts in the Motion, there were few factual findings).
The Magistrate and District Court judges both agree that the Google map photo the defendant submitted with his motion “provides little information about what a law enforcement officer might have been able to see of the defendant’s back yard when passing by on a public thoroughfare, or what that officer might have observed from a public vantage point where he had a right to be.”
They also both agree that the defendant had provided no information about whether the camera that surveilled his back yard had enhanced technological capabilities—whether it could zoom in, or record audio. They also agree that, if the defendant had provided information showing that the camera could zoom in, or record audio, or capture infrared, or allow the officers to see inside the defendant’s house, the defendant’s “evolving technology” argument might have more influence, citing United States v. Tirado, 2018 U.S. Dist. LEXIS 64379, 2018 WL 1806056, (E.D. Wis. Apr. 16, 2018) (posted on this blog on September 16).
The Court also cites the “pole camera” cases previously featured on this blog to hold there is no reasonable expectation of privacy that has been shown to have been violated in this case.
The case is United States v. Kubasiak, 2018 U . S . Dist. LEXIS 172514 (Dist. Ct. E.D. Wis.) (October 5).