Conflict arises among federal circuit courts regarding remote video surveillance

A federal appeals court is upholding the firearms conviction of a Tennessee man whose brother's rural farm was monitored for 10 weeks straight by a remote-controlled camera the authorities installed on a utility pole 200 yards away—without a warrant, according to the website Ars Technica.com. The decision is in conflict with other Circuits.

The decision by the 6th US Circuit Court of Appeals affirms the nine-year sentence of Rocky Houston, who was caught by the camera as being a felon in possession of a gun. 

"There is no Fourth Amendment violation, because Houston had no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads," Judge John Rogers wrote for the unanimous court, which ruled 3-0 to uphold Houston's 2014 conviction. 

"The ATF agents only observed what Houston made public to any person traveling on the roads surrounding the farm. Additionally, the length of the surveillance did not render the use of the pole camera unconstitutional, because the Fourth Amendment does not punish law enforcement for using technology to more efficiently conduct their investigations. While the ATF agents could have stationed agents round-the-clock to observe Houston’s farm in person, the fact that they instead used a camera to conduct the surveillance does not make the surveillance unconstitutional."

The Cincinnati, Ohio-based appellate court added:

"Moreover, 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. The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely."

The decision conflicts sharply with a Washington state federal judge who in 2014 tossed an alleged drug dealer's conviction that was gained under the same circumstances, the warrantless spying of a suspect via a webcam attached to a utility pole near his property. In May, the government dropped its appeal of that decision, without providing any reason.

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