10 weeks of video evidence from utility-pole camera didn't require warrant, 6th Circuit says
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A federal appeals court has upheld a firearms conviction based on video evidence collected without a warrant from a camera perched on top of a utility pole.
The Cincinnati-based 6th U.S. Circuit Court of Appeals said that even though much of the evidence was collected without a warrant, the video surveillance did not violate the Fourth Amendment, report Ars Technica and the Volokh Conspiracy.
Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives conducted warrantless monitoring of Rocky Houston’s Tennessee farm for 10 weeks, beginning on Oct. 10, 2012. Agents obtained a warrant in December 2012 after an unpublished appellate decision expressed “some misgivings” about warrantless surveillance using a backyard pole camera.
The warrantless surveillance didn’t violate the Houston’s reasonable expectation of privacy because it recorded the same view of Houston’s Tennessee farm that could be seen by passersby on public roads, the court said in its Feb. 8 decision (PDF). As a result, there was no violation of his Fourth Amendment rights, the court found.
The warrantless footage recorded seven instances of Houston possessing firearms. There was also an eighth instance, recorded after agents obtained the warrant. In a search of Houston’s farm, agents found 17 firearms in Houston’s house. Houston was convicted in March 2014 of being a felon in possession of a firearm.
All of the pole-camera recordings were properly admitted, the appeals court said in the decision by Judge John Rogers. “If law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand,” he wrote. “The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely.”
Judge Bernice Donald joined Rogers’ opinion. In a concurrence, U.S. District Judge Thomas Rose, sitting by designation, agreed with the result, but said he would have based his decision on the failure to obtain a warrant being harmless error.
The ATF opened the investigation after being contacted by the Roane County Sheriff’s Department about the alleged gun possession. Houston and his brother were previously acquitted of the murder of a Roane County sheriff’s deputy and his ride-along companion in a 2006 shoot-out. The Houstons had claimed self defense.
Hat tip to the Marshall Project and Above the Law.
