Update on Pole Cameras and the Fourth Amendment

When an officer attaches a video camera to a utility pole and uses it to monitor a suspect’s home continuously for several months, is that a “search” within the meaning of the Fourth Amendment? Or is it just the officer seeing what any passer-by might see, such that there is no intrusion on the suspect’s reasonable expectation of privacy? This issue has been a focal point of litigation since Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018), which held that the long-term collection of historical cell site location information is so intrusive that it is a search, even though any individual piece of such data does not belong to the phone’s user and is not subject to a reasonable expectation of privacy. Whether the rationale of Carpenter extends to pole cameras has been addressed before on this blog, most recently here and here by Shea Denning. But there are a number of new cases in this area, which I have summarized below. Federal cases. There have been several recent opinions by the federal appellate courts. The most in-depth treatment is in the Moore-Bush case, but Tuggle is also a leading case in this area. I don’t think that the Fourth Circuit has a post-Carpenter case on point. United States v. Dennis, 41 F.4th 732 (5th 2022) (officers “installed pole cameras directed at the front and back of [defendant’s] properties” and let them run for more than two months; they subsequently charged defendant with drug offenses; he filed an [...]