District Court for E.D. WI holds that pole camera surveillance of Defendant’s residence does not constitute a search.

The United States District Court for the Eastern District of Wisconsin has upheld the recommendations of a magistrate judge and denied a motion to suppress for footage from a pole camera. During a drug trafficking investigation, agents installed a hidden camera on a utility pole located on a neighbor’s property to monitor defendant’s driveway and front yard for 87 days. This was done without obtaining a warrant.

Based in part on the information obtained from this camera, agents obtained a warrant to search defendant’s residence. Quantities of Oxycodone were found, the defendant was arrested, and he subsequently made incriminating statements.

The defendant made a motion to suppress evidence from the camera arguing that the continuous surveillance constituted a search that required a warrant. He analogized this use of the camera to installation of a GPS tracking device (United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)) and the collection of cell-site location information (Carpenter v. United States, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018)),

Stressing that Carpenter was a narrow decision, the District Court declined to extend the “all encompassing” nature of CSLI to pole camera surveillance of a residence. The Court noted that “nearly every federal court which has addressed the issue has held that pole camera surveillance of a person’s driveway or the exterior of his residence does not violate the person’s reasonable expectation of privacy” (citing, California v. Greenwood, 486 U.S. 35, 41, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988); United States v. Evans, 27 F.3d 1219, 1228-29 (7th Cir. 1994) (collecting cases finding no legitimate expectation of privacy in driveways and porches visible from a public street); California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986); United States v. Knotts, 460 U.S. 276, 282, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983); United States v. Tirado, No. 16-CR-168, 2018 U.S. Dist. LEXIS 64379, at *10-12 (E.D. Wis. Apr. 16, 2018); United States v. Aguilera, No. 06-CR-336, 2008 U.S. Dist. LEXIS 10103, at *3-5 (E.D. Wis. Feb. 11, 2008).

“There is accordingly no impediment, courts have concluded, to the police using a camera to make the same kinds of observations as could an officer standing on a public street.”

The District Court declined to reach the Government’s arguments regarding good faith and inevitable discovery.

The case is United States v. Kay, 2018 U.S. Dist. LEXIS 141615, 2018 WL 3995902 (Dist. Ct. E.D. WI) (Aug. 21).

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