The Pole Camera Watching Your House Never Blinks

United States v. Rolando Williamson

​It is always refreshing to thumb through a court opinion that reads like an Elmore Leonard novel. For example, in a recent opinion of the Eleventh Circuit Court of Appeals, one defendant is also known as “a.k.a. Baldhead, a.k.a. Ball Head.” And the opinion contains numerous references to whether “a cup of ice” is code for an ounce of meth, and to extensive evidence presented in court – guns, money, dope, a gold necklace seized from a home – that could provide props from Netflix’s Narcos.
 
Our guess is that the several defendants in this case, whose convictions were mostly upheld by the court, did not earn enough merit badges to become Eagle Scouts. But they are still Americans with constitutional rights. And, for the good of us all, they should get the same protections of the Fourth Amendment as the rest of us.
 
Did they?
 
Here are the facts: The home of one Rolando Williamson in Birmingham, Alabama, was persistently surveilled by pole cameras from October 2018 through August 2019. The cameras warrantlessly recorded the comings and goings of Williamson and his visitors nonstop, including his front and back yards – the area often referred to in Fourth Amendment law as the home’s “curtilage.” 
 
On the basis of this persistent recording of a home, the government performed a sting operation and followed up with warrants to search Williamson’s home. We agreed with three out of six judges on the First Circuit Court in a similar case, Moore v. United States, that a “reasonable expectation of privacy” was violated when the government placed a pole camera in front of a woman’s home for eight months.
 
In this case, the Eleventh Circuit ruled that similarly persistent surveillance did not violate the Fourth Amendment. The court reasoned that, because one of the cameras overlooked the public street in front of Williamson’s home, and the other recorded the exposed and publicly viewable backyard, the cameras “could view only what was visible from the public streets in front of the house and the public alley behind it.”
 
The court rejected the defense’s comparisons to the U.S. Supreme Court’s Carpenter v. United States (2018), which found a Fourth Amendment violation in law enforcement’s seizure of a suspect’s location history from a cellphone tower. The court also asserted that this case did not resemble United States v. Jones (2012), in which the Supreme Court held that attaching a GPS device to a vehicle amounted to a search requiring a warrant.
 
“By contrast, a pole camera does not track movement,” the Eleventh Circuit found. “It does not track location. It is stationary – and therefore does not ‘follow’ a person like a GPS attached to his vehicle.” Moreover, “the Carpenter decision concerned a technology that is meaningfully different than pole cameras. Pole cameras are distinct both in terms of the information they mine and the degree of intrusion necessary to do so.”

We question the court’s conclusion about the narrowness of data mined by a pole camera. A persistent camera does track movement of residents and their visitors in and out of a home. It potentially reveals a target’s political, religious, and romantic interests. Watching the movements for months around the curtilage of a home – which is highly protected in Fourth Amendment law – is in fact very intrusive.
 
These are ripe questions for future cases. As for the Eleventh Circuit, it declared that it is not making a general rule on the constitutionality of pole cameras. State and federal courts remain divided on that question. And it is a question that will not go away. From pole cameras to drones, aerial panoramas from balloons that can loiter for months, and other persistent forms of surveillance, the courts – and likely, the Supreme Court – will need to set a rule on these forms of outside-in surveillance.
 
To see that they do, PPSA will be looking to provide legal support in cases that present the best fact patterns. 

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