EPIC - United States v. Brooks

United States v. Brooks

Concerning the Use of Pole Cameras by Law Enforcement Under the Fourth Amendment

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Background |
EPIC's Interest in U.S. v. Brooks |
Legal Documents |

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Background

Issue Before the Court

The issue presented in U.S. v. Brooks, before the Ninth Circuit Court of Appeals, is whether the government can install and use a pole camera for remote video surveillance without a warrant under the Fourth Amendment. Law enforcement uses this technique frequently, and the federal appellate courts are divided on whether the practice violates the Fourth Amendment, particularly when it is used in the vicinity of a residence.

Background of this Case

The Drug Enforcement Administration (“DEA”) attached a pole camera to a service pole on a publicly-owned sports arena adjacent to a residential walled and gated apartment complex. The device allowed for “24/7” remote surveillance of the area surrounding a third-floor apartment where Defendant Brooks visited, including its balconies, stairwell, and parking lot. The camera was fixed but had the ability to zoom, pan, and tilt.

For five months, the DEA used the pole camera to continuously monitor activity around the apartment. Based on information obtained from the camera surveillance, the DEA placed a GPS tracking device on Brooks’s car and tracked his movements. The DEA followed Brooks to a U.S. Post Office and used footage obtained from the pole camera to seize a package he shipped. DEA agents later arrested Brooks for marijuana trafficking and searched his car. His identification, arrest, and subsequent conviction all stemmed from video evidence obtained from the pole camera’s ongoing surveillance.

To determine whether a government action constitutes a search under the Fourth Amendment, courts ask whether the investigated person had a reasonable expectation of privacy. Katz v. U.S., 389 U.S. 347, 361 (1967) (Harlan, J., concurring). When analyzing this factor, the Supreme Court considers whether a person took outward actions to shield his activity from the public. See Kyllo v. U.S., 533 U.S. 27, 28-29 (2001) (use of a thermal imaging device to detect heat emanating from inside a home is a search); Florida v. Riley, 488 U.S. 445, 450 (1989) (aerial surveillance with a helicopter hovering 400 feet over private property is not a search). In addition to the reasonable expectation of privacy test, a state action counts as a Fourth Amendment search when the government physically intrudes into a constitutionally protected area (persons, homes, papers, and effects) without permission. Florida v. Jardines, 133 S.Ct. 1409 (2013); U.S. v. Jones, 132 S.Ct. 945 (2012).

At Brooks' trial, the District Court considered specifically whether DEA agents had conducted surveillance from a public vantage point where they had a legal right to be. They also considered whether the agents employed permissible surveillance techniques.

District Court Opinion

On November 28, 2012, the U.S. District Court for the District of Arizona dismissed Defendant Brooks’ motion to suppress the evidence obtained from the pole camera surveillance. Brooks argued that the court should dismiss the footage obtained from the pole camera and his resulting admissions because the warrantless pole camera surveillance violated his reasonable expectation in the privacy of the area around his home. The Defendant relied on the Supreme Court's decision in U.S. v. Jones. 132 S.Ct. 945 (2012). In that case, five justices agreed in concurrences that extended surveillance of an individual sufficient to create a detailed picture of his life could constitute a search. See U.S. v. Jones at 954-57 (Sotomayor, J. concurring), and at 957-64 (Alito, J. concurring). However, the District Court judge did not believe that the Defendant had a reasonable expectation of privacy in the enclosed parking lot behind his home, nor in the walkway that was within the pole camera’s range of view. The court denied defendant’s motion, holding that pole camera surveillance video of activity within public view does not violate an individual’s reasonable expectation of privacy. The evidence was included in the District Court trial.

Brooks also moved to suppress evidence obtained through the GPS tracker attached to his car. The court denied the defendant’s motion to suppress evidence obtained through warrantless GPS monitoring. The court held that the police had correctly relied in good faith on then-current GPS surveillance law when they attached the device. The court also held that under Ninth Circuit precedent defendant’s carport was not within the curtilage of his home. Therefore, the police did not conduct an unreasonable search based on the Jardines trespass theory.

On March 12, 2013, a jury found the Defendant guilty on three counts, including conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana.

EPIC's Interest in U.S. v. Brooks

EPIC has a longstanding history of defending personal privacy from unreasonable governmental intrusion. EPIC has a particular interest in emerging surveillance techniques that enable law enforcement to conduct warrantless surveillance of private citizens. In cases such as U.S. v. Jones and Maryland v. King, EPIC has argued that such techniques offend a person’s right to privacy and their Fourth Amendment right to be free of unreasonable searches. Long-term video surveillance of an individual without a warrant, even when limited to publicly viewable areas, violates an individual’s expectation of privacy. While individual snippets of a person's actions in public do not reveal anything private, when many individual data points are combined, using extended surveillance, they create a mosaic that can reveal intimate and comprehensive details of a person's life.

Legal Documents

U.S. Court of Appeals for the Ninth Circuit

United States District Court for the District of Arizona

District-Court-Opinion.pdf

Resources

Relevant Supreme Court Cases

Florida v. Jardines, 133 S.Ct. 1409 (2013)
U.S. v. Jones, 132 S.Ct. 945 (2012)
Katz v. U.S., 389 U.S. 347 (1967)
Kyllo v. U.S., 533 U.S. 27 (2001)
Florida v. Riley, 488 U.S. 445 (1989)

Video Surveillance Cases in other Appellate Courts

U.S. v. Anderson-Bagshaw, 2012 WL 6600331 (6th Cir. Dec. 19, 2012), cert. denied, 133 S.Ct. 2012 (2013) (Video surveillance of a defendant in her backyard was an unreasonable search.)
U.S. v. Jackson, 213 F.3d 1269 (10th Cir. 2000), vacated on other grounds, 531 U.S. 1033 (2000) (Warrantless pole camera surveillance from telephone pole does not violate Fourth Amendment.)