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Date: 07-27-2021
Case Style:
UNITED STATES OF AMERICA v. TRAVIS TUGGLE
Case Number: 20-2352
Judge: Joel Martin Flaum
Court: United States Court of Appeals
For the Seventh Circuit
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Chicago, IL - Criminal defense lawyer represented defendant with conspiring to distribute, and possess with intent to distribute, at least 50 grams of methamphetamine and at least 500 grams of a mixture containing methamphetamine charges.
Between 2013 and 2016, several law enforcement agencies
investigated a large methamphetamine distribution conspiracy in central Illinois that resulted in Tuggle’s prosecution.
The focus of this appeal is the government’s warrantless use
of three video cameras affixed to nearby utility poles to monitor Tuggle’s residence.
The government installed three cameras on public property that viewed Tuggle’s home. Agents mounted two cameras on a pole in an alley next to his residence and a third on
a pole one block south of the other two cameras. The first two
cameras viewed the front of Tuggle’s home and an adjoining
parking area. The third camera also viewed the outside of his
home but primarily captured a shed owned by Tuggle’s coconspirator and codefendant, Joshua Vaultonburg.
Together, the three cameras captured nearly eighteen
months of footage by recording Tuggle’s property between
6 No. 20-2352
2014 and 2016. Law enforcement agents installed the first
camera in August 2014, the second in December 2015, and the
third in September 2015. The officers left the three cameras on
their respective poles until March 2016.
The cameras offered several advantages to the government’s investigation of the drug conspiracy. While in use, the
cameras recorded around the clock. Rudimentary lighting
technology improved the quality of overnight footage, although the cameras did not have infrared or audio capabilities.
Law enforcement agents could also remotely zoom, pan, and
tilt the cameras and review the camera footage in real time,
though the footage captured only the exterior of Tuggle’s
house. While officers frequently monitored the live feed during business hours, they could later review all the footage,
which the government stored at the Federal Bureau of Investigation office in Springfield, Illinois. More generally, the
cameras had the practical advantage of enabling the government to surveil Tuggle’s home without conspicuously deploying agents to perform traditional visual or physical surveillance on the lightly traveled roads of Tuggle’s residential
neighborhood.
The cameras provided substantial video evidence that
supported the government’s eventual indictment of Tuggle
(and others). The officers tallied over 100 instances of what
they suspected were deliveries of methamphetamine to Tuggle’s residence. Camera footage depicted individuals arriving
at Tuggle’s home, carrying various items inside, and leaving
only with smaller versions of those items or sometimes nothing at all. After these alleged “drops,” different individuals
would soon arrive, enter the home, and purportedly pay for
and pick up methamphetamine. Several witnesses
No. 20-2352 7
corroborated these activities. Further evidencing a drug operation, the recordings showed Tuggle carrying items to Vaultonburg’s shed across the street. All told, the investigating officers determined that Tuggle’s conspiracy distributed over
twenty kilograms of highly pure methamphetamine.
Relying heavily on the video evidence, the officers secured
and executed search warrants on several locations, including
Tuggle’s house. A grand jury subsequently indicted him on
two counts: (1) a violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A) for conspiring to distribute, and possess with intent
to distribute, at least 50 grams of methamphetamine and at
least 500 grams of a mixture containing methamphetamine,
and (2) a violation of 21 U.S.C. § 856(a)(1) for maintaining a
drug-involved premises.
Before trial, Tuggle moved to suppress the evidence obtained from the pole cameras, arguing that the use of the cameras constituted a warrantless search in violation of the
Fourth Amendment. The district court denied the motion in a
written opinion explaining its view that the camera usage did
not constitute a search. Thereafter, Tuggle twice moved for
the district court to reconsider, but the court denied both motions on grounds that they raised no novel arguments. The
day before trial, Tuggle entered a conditional guilty plea,
pleading guilty to both counts but reserving his right to appeal the court’s denials of his motions to suppress. The district
court then sentenced him to 360 months’ imprisonment on
Count 1 and a concurrent 240 months’ imprisonment on
Count 2.
This timely appeal followed.
8 No. 20-2352
II. Discussion
The issue before us on appeal is whether the district court
correctly denied Tuggle’s motion to suppress. That issue calls
for a “dual standard of review” under which “we review legal
conclusions de novo but findings of fact for clear error.”
United States v. Edgeworth, 889 F.3d 350, 353 (7th Cir. 2018) (citation omitted).
The Fourth Amendment provides, in part, for “[t]he right
of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “Warrantless searches ‘are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.’”
United States v. Edwards, 769 F.3d 509, 513 (7th Cir. 2014)
(quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)). The government did not seek a warrant for the cameras here, and no
exception to the warrant requirement applies, so the dipositive question is whether a Fourth Amendment search occurred.
The Supreme Court has developed two distinct paths to
identify a search: “[a] search occurs either when the government physically intrudes without consent upon ‘a constitutionally protected area in order to obtain information,’ or
‘when an expectation of privacy that society is prepared to
consider reasonable is infringed.’” United States v. Thompson,
811 F.3d 944, 948 (7th Cir. 2016) (some internal quotation
marks and citations omitted) (first quoting United States v.
Jones, 565 U.S. 400, 407 (2012); and then quoting United States
v. Karo, 468 U.S. 705, 712 (1984)). The first path, a physical intrusion, is not relevant because the parties agree that the
No. 20-2352 9
government did not physically intrude on Tuggle’s property
by attaching the cameras to the utility poles on public property.
We therefore focus on the second path to finding a search,
a government infringement upon an expectation of privacy
that society is prepared to consider reasonable. This path derives from Justice Harlan’s famous concurrence in Katz, which
determined that “a person has a constitutionally protected
reasonable expectation of privacy” where that person “exhibit[s] an actual (subjective) expectation of privacy … that
society is prepared to recognize as ‘reasonable.’” 389 U.S. at
360–61 (Harlan, J., concurring); see also Smith v. Maryland,
442 U.S. 735, 740 (1979) (adopting Justice Harlan’s Katz test).
The Supreme Court later clarified that “Katz posits a two-part
inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search?
Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986). As
“[t]he party seeking suppression,” Tuggle “bears the burden
of establishing that he had a reasonable expectation of privacy
in what was searched.” United States v. Scott, 731 F.3d 659, 663
(7th Cir. 2013).
On appeal, Tuggle presents two different, but related, arguments that the government’s use of the three pole cameras
to monitor the activities in front of and outside his house constituted a search under the Fourth Amendment. First, he argues that the warrantless pole camera surveillance of his residence, irrespective of the length of that surveillance use, violated his Fourth Amendment rights. Second, he argues—relying on the mosaic theory—that the “long-term, warrantless
surveillance over a period of approximately eighteen
10 No. 20-2352
months” amounted to a Fourth Amendment violation. We
consider each argument in turn.
A. The Isolated Use of Cameras
Tuggle first frames the issue as “whether the use of warrantless pole camera surveillance of Mr. Tuggle’s private residence violated his Fourth Amendment rights?” For present
purposes, we will consider only whether the isolated use of
pole cameras—by which we mean the use of pole cameras irrespective of the length of that use—constitutes a Fourth
Amendment search. In other words, we ask: Did the Fourth
Amendment preclude law enforcement officers from the isolated use of pole cameras on public property without a warrant to observe Tuggle’s private home?
Framed as such, the answer is clearly no. At the outset, we
note that Tuggle likely has not, at Katz’s first prong, “exhibited an actual (subjective) expectation of privacy” in the goings-on outside of his home. Katz, 389 U.S. at 361 (Harlan, J.,
concurring). Nothing in the record suggests that Tuggle
erected any fences or otherwise tried to shield his yard or
driveway from public view, which might have signaled he
feared the wandering eye or camera lens on the street. We
therefore do not confront the more challenging situation in
which the government intentionally places cameras to see over
a fence to observe a private residence in a manner unavailable
to a ground-level passerby. See generally United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (concluding that
defendant “manifested the subjective expectation of privacy
in his backyard” because “he erected fences around [it],
screening the activity within from views of casual observers,”
and “the area monitored by the camera fell within the curtilage of his home, an area protected by traditional fourth
No. 20-2352 11
amendment analysis”). Nevertheless, courts have not uniformly applied the subjective prong of the Katz test, and some
legal scholars have called its significance in resolving cases
into question. See generally Orin S. Kerr, Katz Has Only One
Step: The Irrelevance of Subjective Expectations, 82 U. Chi. L. Rev.
113, 113 (2015) (arguing that “the majority of judicial opinions
applying Katz do not even mention the subjective-expectations test; opinions that mention the test usually do not apply
it; and even when courts apply it, the test makes no difference
to the results”). Thus, we primarily focus our attention on
Katz’s objective inquiry.
As to that objective prong—those privacy expectations society is willing to accept as reasonable—“[t]he expectation of
privacy does not extend to ‘[w]hat a person knowingly exposes to the public, even in his own home or office.’” Thompson, 811 F.3d at 949 (quoting Katz, 389 U.S. at 351). The Supreme Court has made clear that “[t]he Fourth Amendment
protection of the home has never been extended to require
law enforcement officers to shield their eyes when passing by
a home on public thoroughfares.” Ciraolo, 476 U.S. at 213; see
also Kyllo v. United States, 533 U.S. 27, 32 (2001) (“[V]isual observation is no ‘search’ at all.”); California v. Greenwood,
486 U.S. 35, 41 (1988) (“[P]olice cannot reasonably be expected
to avert their eyes from evidence of criminal activity that
could have been observed by any member of the public.”). We
have also observed that home dwellers do not generally enjoy
a “reasonable expectation of privacy in [their] driveway[s].”
See United States v. Evans, 27 F.3d 1219, 1228–29 (7th Cir. 1994)
(collecting cases); see also United States v. French, 291 F.3d 945,
955 (7th Cir. 2002) (holding defendant had “no reasonable expectation of privacy in the driveway and gravel walkways”
leading to his home).
12 No. 20-2352
In this case, Tuggle knowingly exposed the areas captured
by the three cameras. Namely, the outside of his house and
his driveway were plainly visible to the public. He therefore
did not have an expectation of privacy that society would be
willing to accept as reasonable in what happened in front of
his home. See Evans, 27 F.3d at 1228. The Fourth Amendment
accordingly did not require officers to “shield their eyes” (or
their cameras) when passing by Tuggle’s “home on public
thoroughfares.” See Ciraolo, 476 U.S. at 213.
Tuggle’s argument that the cameras transformed otherwise lawful visual surveillance into unconstitutional technological surveillance does not undermine our conclusion that
the isolated use of pole cameras here did not constitute a
search. Specifically, Tuggle argues that “[w]hile the ‘fruits’ of
the pole cameras could have been achieved by traditional visual or physical surveillance, the use of technology change[d]
the reasonableness of the expectation of privacy.” See Jones,
565 U.S. at 412 (“It may be that achieving the same result
through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy ….”).
To be sure, the Supreme Court has cautioned that the government’s use of some technologies falls within the ambit of
the Fourth Amendment, but the Court has also affirmed that
“[n]othing in the Fourth Amendment prohibit[s] the police
from augmenting the sensory faculties bestowed upon them
at birth with such enhancement as science and technology afforded them in” certain instances. United States v. Knotts,
460 U.S. 276, 282 (1983).
The prototypical example of impermissible technology for
Fourth Amendment purposes is the government’s use of a
thermal imaging device that detects relative heat levels within
No. 20-2352 13
a residence. The Supreme Court held the use of the device to
be an unlawful search in violation of the Fourth Amendment
in Kyllo v. United States. 533 U.S. at 40. While the thermal imaging device did not physically intrude on the defendant’s
property, the Court expressed concern about “leav[ing] the
homeowner at the mercy of advancing technology.” Id. at 35.
The Court therefore held that governmental use of “a device
that is not in general public use, to explore details of the home
that would previously have been unknowable without physical intrusion,” constitutes a Fourth Amendment search “and
is presumptively unreasonable without a warrant.” Id. at 40.
Despite the Kyllo standard, the Supreme Court has routinely approved of law enforcement officers’ use of cameras
to aid investigations. In Dow Chemical Co. v. United States,
476 U.S. 227 (1986), the Supreme Court held “that the taking
of aerial photographs of [a 2,000-acre] industrial plant complex from navigable airspace is not a search prohibited by the
Fourth Amendment.” Id. at 239. The Court acknowledged that
“the technology of photography has changed in this century,”
id. at 231, and said:
It may well be … that surveillance of private
property by using highly sophisticated surveillance equipment not generally available to the
public, such as satellite technology, might be
constitutionally proscribed absent a warrant.
But the photographs here are not so revealing of
intimate details as to raise constitutional concerns. Although they undoubtedly give [the
government] more detailed information than
naked-eye views, they remain limited to an outline of the facility’s buildings and equipment.
14 No. 20-2352
Id. at 238. To that end, the Court noted that “[t]he mere fact
that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems” because the aerial photography cameras did not raise the “far
more serious questions” presented by a device that could
“penetrate walls or windows so as to hear and record confidential discussions.” Id. at 238–39.
On the same day it issued Dow Chemical, the Supreme
Court held in California v. Ciraolo that law enforcement did not
violate the Fourth Amendment when it observed and photographed the defendant’s marijuana plants while flying 1,000
feet overhead in a private plane. 476 U.S. at 209–10. The Court
explained that although the defendant may have demonstrated a subjective expectation of privacy by erecting fences,
society was not prepared to accept that expectation as reasonable because the government surveilled “within public navigable airspace … in a physically nonintrusive manner.” Id. at
213. In other words, “[a]ny member of the public flying in this
airspace who glanced down could have seen everything that
these officers observed.” Id. at 213–14. The Court did not even
consider the impact of the camera—thus assuming it was entirely permissible for officers to use cameras in that place in
which they were lawfully entitled to be.
Despite the prevalence of cameras in today’s society, we
have not identified in our own precedent any cases in which
we squarely evaluated the constitutionality of the government’s use of remote cameras, pole cameras, or the like, to aid
law enforcement surveillance. We have, however, acknowledged the commonplace role cameras have in our society. Cf.
United States v. Paxton, 848 F.3d 803, 812 (7th Cir. 2017) (“[W]e
are fast approaching a day when police interactions with
No. 20-2352 15
civilians, including detainees, will be recorded from beginning to end, and for a variety of important ends.”). Thus, the
question of whether the isolated use of pole cameras, without
a warrant, on public property is constitutional is an issue of
first impression. Our sister circuits, including the Fourth and
the Tenth Circuits, that have considered governmental reliance on cameras to observe the exteriors of private homes
have held such uses to be constitutional.1
We likewise conclude that, under a straightforward application of Kyllo, the isolated use of pole cameras here did not
run afoul of Fourth Amendment protections. Today, cameras
are in “general public use.” Kyllo, 533 U.S. at 40. Now more
than ever, cameras are ubiquitous, found in the hands and
pockets of virtually all Americans, on the doorbells and entrances of homes, and on the walls and ceilings of businesses.
See Carpenter v. United States, 138 S. Ct. 2206, 2220 (2018) (declining to “call into question conventional surveillance techniques and tools, such as security cameras” (emphasis added));
Paxton, 848 F.3d at 812. To that point, if some thirty years ago
extensive aerial photography of a 2,000-acre industrial property, see Dow Chem., 476 U.S. at 229, or of marijuana plants otherwise concealed at ground level, see Ciraolo, 476 U.S. at 209,
did not qualify as Fourth Amendment searches, then certainly
1 See, e.g., United States v. Vankesteren, 553 F.3d 286, 287 (4th Cir. 2009)
(holding the government had not violated the defendant’s Fourth Amendment rights through use of “a hidden, fixed-range, motion-activated video
camera placed in the [defendant’s] open fields”); United States v. Jackson,
213 F.3d 1269, 1282 (10th Cir.) (holding that “evidence obtained from the
video cameras installed on the telephone poles and the recordings made
in the undercover FBI car were not introduced in violation of … the Fourth
Amendment”), vacated on other grounds, 531 U.S. 1033 (2000).
16 No. 20-2352
ground-level video footage of an unobstructed home from a
public vantage point is not a search.
While the video cameras in this case “undoubtedly g[a]ve
[the government] more detailed information than naked-eye
views,” they did not do so to a degree that “give[s] rise to constitutional problems.” See Dow Chem., 476 U.S. at 238. The government only used the cameras to identify who visited Tuggle’s house and what they carried, all things that a theoretical
officer could have observed without a camera. Cf. Thompson,
811 F.3d at 950 (“The video cameras in this case captured
nothing more than what the informant could see with his naked eye.”). That the government could replay the footage and
remotely control the camera does not affect our analysis because these features are a far cry from the “highly sophisticated surveillance equipment not generally available to the
public” that animated the Dow Chemical decision. 476 U.S. at
238. The cameras did not “penetrate walls or windows so as
to hear and record confidential” information, id. at 239, nor
did they “explore details of the home that would previously
have been unknowable without physical intrusion,” Kyllo,
553 U.S. at 40.
In sum, the government used a commonplace technology,
located where officers were lawfully entitled to be, and captured events observable to any ordinary passerby. The government did not invade an expectation of privacy that society
would be prepared to accept as reasonable. Accordingly, the
isolated use of pole cameras here did not constitute a Fourth
Amendment search.
No. 20-2352 17
B. The Prolonged, Round-the-Clock Use of Cameras
The more challenging question is Tuggle’s second theory
of a Fourth Amendment violation: that the prolonged and uninterrupted use of those cameras constituted a search. Tuggle
characterizes this theory in two ways. First, he argues more
generally that the “long-term use of the pole cameras over an
extended period of approximately eighteen months violates
the Fourth Amendment.” Second, he asserts that “[a]pplying
the mosaic theory, the use of warrantless pole cameras continuously for over [eighteen] months is unconstitutional under the Fourth Amendment.” While framed differently, both
Tuggle’s theories functionally ask whether the mosaic theory
supports finding a Fourth Amendment search here. To answer that question, we will begin by explaining the mosaic
theory and noting that while the theory has gained some judicial traction the Supreme Court has yet to affirmatively require lower courts to apply it. Then, we will outline how other
courts have disagreed over whether prolonged pole camera
surveillance constitutes a Fourth Amendment search. Drawing on those discussions—and noting our reservations—we
will finally address why the prolonged use of pole cameras
here did not constitute a Fourth Amendment search.
1. The Mosaic Theory Generally
In its simplest form, the mosaic theory attempts to capture
the idea that the “government can learn more from a given
slice of information if it can put that information in the context
of a broader pattern, a mosaic.” Matthew B. Kugler & Lior Jacob Strahilevitz, Actual Expectations of Privacy, Fourth Amendment Doctrine, and the Mosaic Theory, 2015 Sup. Ct. Rev. 205,
205 (2015). Thus, it “holds that, when it comes to people’s reasonable expectations of privacy, the whole is greater than the
18 No. 20-2352
sum of its parts.” Id.; see also David Gray & Danielle Keats Citron, A Shattered Looking Glass: The Pitfalls and Potential of the
Mosaic Theory of Fourth Amendment Privacy, 14 N.C. J. L. &
Tech. 381, 415 (2013) (“The mosaic theory …. recognizes that,
although a collection of dots is sometimes nothing more than
a collection of dots, some collections of dots, when assessed
holistically, are A Sunday Afternoon on the Island of La Grande
Jatte.”); Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311, 313 (2012). For present purposes,
we ground our discussion in these high-level articulations of
the mosaic theory although we note that justices, judges, and
academics vary in how they define and (even whether they
explicitly) refer to the theory and its principles.
Some judges and justices have relied on mosaic-like reasoning, but the Supreme Court has not bound lower courts to
apply the mosaic theory. The theory first emerged in Fourth
Amendment jurisprudence in United States v. Maynard,
615 F.3d 544 (D.C. Cir. 2010). The D.C. Circuit considered
whether the government’s tracking of the defendant’s car for
twenty-eight days by installing a global positioning system
(“GPS”) device onto his car without a valid warrant constituted a search under the Fourth Amendment. Id. at 555. The
court invoked the “mosaic theory,” id. at 562, to determine
that the surveillance constituted a Fourth Amendment search:
[W]e hold the whole of a person’s movements
over the course of a month is not actually exposed to the public because the likelihood a
stranger would observe all those movements is
not just remote, it is essentially nil. It is one thing
for a passerby to observe or even to follow
someone during a single journey as he goes to
No. 20-2352 19
the market or returns home from work. It is another thing entirely for that stranger to pick up
the scent again the next day and the day after
that, week in and week out, dogging his prey
until he has identified all the places, people,
amusements, and chores that make up that person’s hitherto private routine.
Id. at 560. The D.C. Circuit continued:
Prolonged surveillance reveals types of information not revealed by short-term surveillance,
such as what a person does repeatedly, what he
does not do, and what he does ensemble. These
types of information can each reveal more about
a person than does any individual trip viewed
in isolation. Repeated visits to a church, a gym,
a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these
places over the course of a month. The sequence
of a person’s movements can reveal still more; a
single trip to a gynecologist’s office tells little
about a woman, but that trip followed a few
weeks later by a visit to a baby supply store tells
a different story. A person who knows all of another’s travels can deduce whether he is a
weekly church goer, a heavy drinker, a regular
at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate
of particular individuals or political groups—
and not just one such fact about a person, but all
such facts.
Id. at 562 (footnote omitted).
20 No. 20-2352
Reviewing the issue of GPS monitoring under a different
name, United States v. Jones, a majority of the Supreme Court
affirmed Maynard on a narrow “property-based” theory, see
565 U.S. at 404–11, declining to rely on the mosaic theory, see
id. at 412–13. Specifically, the Jones majority held that the government had effected a physical trespass on private property
by attaching the device on the defendant’s vehicle without a
warrant. Id. at 404–07.
Concurring in the judgment, however, Justice Alito—
joined by Justices Ginsburg, Breyer, and Kagan—endorsed
the mosaic theory’s logic and rejected the majority’s stringent
reliance on a trespass theory. In Justice Alito’s view, the GPS
monitoring crossed a constitutional line, wherever that line
might be:
[R]elatively short-term monitoring of a person’s
movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term
GPS monitoring in investigations of most offenses impinges on expectations of privacy. For
such offenses, society’s expectation has been
that law enforcement agents and others would
not—and indeed, in the main, simply could
not—secretly monitor and catalogue every single movement of an individual’s car for a very
long period.
Id. at 430 (Alito, J., concurring) (citation omitted). As he wrote,
“the line was surely crossed before the 4–week mark” of the
government’s tracking of “every movement that [the defendant] made in the vehicle he was driving.” Id. While describing
Justice Alito’s Jones concurrence as “cryptic,” scholars have
No. 20-2352 21
read his opinion to “echo[] the D.C. Circuit’s mosaic approach
in Maynard.” Kerr, The Mosaic Theory, supra, at 327.
Writing separately, Justice Sotomayor joined the majority
but similarly asserted that finding a search was not contingent
on a “trespassory intrusion[] on property.” Jones, 565 U.S. at
414 (Sotomayor, J., concurring). For Justice Sotomayor, the
unique investigatory capabilities of GPS monitoring—including its inexpensiveness, precision, and efficiency—posed serious concerns: “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a
wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. at 415. She explained:
I would take these attributes of GPS monitoring
into account when considering the existence of
a reasonable societal expectation of privacy in
the sum of one’s public movements. I would ask
whether people reasonably expect that their
movements will be recorded and aggregated in
a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not
regard as dispositive the fact that the government might obtain the fruits of GPS monitoring
through lawful conventional surveillance techniques.
Id. at 416. As with Justice Alito’s concurring opinion, scholars
argue that “[t]his passage clearly echoes the mosaic theory.”
Kerr, The Mosaic Theory, supra, at 328.
Drawing on the reasoning of these Jones concurrences,
some scholars have argued that Chief Justice Roberts’s
22 No. 20-2352
unanimous opinion in Riley v. California, 573 U.S. 373 (2014),
further illustrates support for the mosaic theory. Riley held
that the police may not, without a warrant, search digital information on an arrestee’s seized phone. Id. at 386. “Explaining why the arrestee’s wallet could be searched but his cell
phone could not, Roberts offered an argument that is much
akin to the mosaic theory: …. [‘]The sum of an individual’s
private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the
same cannot be said of a photograph or two of loved ones
tucked into a wallet.[’]” See Kugler & Strahilevitz, supra, at 208
(quoting Riley, 573 U.S. at 394).
Most recently, a five-justice majority of the Supreme Court
held in Carpenter v. United States that the government’s collection of a defendant’s cell-site location information (“CSLI”)
(the time-stamped records a mobile phone makes every time
it connects to radio antennas known as cell sites) for a period
of 127 days amounted to a search under the Fourth Amendment. 138 S. Ct. at 2211–12, 2220. The Court determined that
this investigative practice violated the defendant’s reasonable
expectation of privacy because it provided “an all-encompassing record of the holder’s whereabouts,” uncovering “an
intimate window into a person’s life, revealing not only his
particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’” Id. at
2217 (quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)). The Court emphasized that “[a] majority of this Court
has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.” Id. (citing Justice Alito’s and Justice Sotomayor’s Jones
concurrences). Scholars describe the Carpenter majority as effectively “endors[ing] the mosaic theory of privacy.” Paul
No. 20-2352 23
Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech.
357, 373 (2019).
Despite garnering passing endorsement from some—if
not most—of the justices in the various opinions in Jones, Riley, and Carpenter, the theory has not received the Court’s full
and affirmative adoption. At a minimum, the Supreme Court
has not yet required lower courts to apply it. Moreover, many
courts that have considered the theory have expressed disapproval,2 although not without exception.3 Additionally, the
2 See, e.g., United States v. Howard, 426 F. Supp. 3d 1247, 1255–56 (M.D.
Ala. 2019) (declining to apply the mosaic theory, in part, because “[t]he
idea that constitutionality could hinge on the duration of a ‘search’ has
puzzled a Supreme Court justice, several circuit judges, three district
courts, two state supreme courts, and one of the nation’s leading Fourth
Amendment scholars” (footnotes omitted)), aff’d, No. 20-10877, 2021 WL
2155414 (11th Cir. May 27, 2021); State v. Muhammad, 451 P.3d 1060, 1073
(Wash. 2019) (rejecting government’s argument invoking mosaic theory
and criticizing the theory as eluding a “workable analysis” because
“[r]ather than offering analysis based on a reasonable expectation of privacy, the mosaic theory instead requires a case-by-case, ad hoc determination of whether the length of time of a cell phone ping violated the
Fourth Amendment”); Tracey v. State, 152 So. 3d 504, 520 (Fla. 2014) (rejecting mosaic theory and “conclud[ing] that basing the determination as
to whether warrantless real time cell site location tracking violates the
Fourth Amendment on the length of the time the cell phone is monitored
is not a workable analysis”).
3 See, e.g., Commonwealth v. McCarthy, 142 N.E.3d 1090, 1102–03 (Mass.
2020) (“This aggregation principle or mosaic theory is wholly consistent
with the statement in Katz, 389 U.S. at 351, 88 S.Ct. 507, that ‘[w]hat a person knowingly exposes to the public … is not a subject of Fourth Amendment protection,’ because the whole of one’s movements, even if they are
all individually public, are not knowingly exposed in the aggregate.” (alterations in original)); United States v. Diggs, 385 F. Supp. 3d 648, 652 (N.D.
24 No. 20-2352
mainstream academic view has urged courts to reject the theory.4 Accordingly, whether or not the theory has merit from a
theoretical or policy standpoint, Tuggle has not presented us
with binding caselaw indicating that we must apply the mosaic theory.
2. Prolonged Pole Camera Surveillance in Other
Courts
Having noted the reluctance of some courts to adopt the
mosaic theory, we now turn to the specific issue at hand: the
constitutionality of prolonged pole camera surveillance. Like
the isolated use of pole cameras, the government’s prolonged
use of pole cameras to surveil someone’s home presents an
issue of first impression for this Court. We therefore begin by
surveying the decisions of courts that have addressed longterm pole camera or video surveillance.
Ill. 2019) (relying on the “scope of the reasonable expectation of privacy
identified by the Jones concurrences and reaffirmed in Carpenter” to find a
search based on government’s use of GPS data), reconsideration denied, No.
18 CR 185, 2020 WL 208826 (N.D. Ill. Jan. 14, 2020); State v. Jones, 2017 SD
59, ¶ 29, 903 N.W.2d 101, 110 (“The information gathered through the use
of targeted, long-term video surveillance will necessarily include a mosaic
of intimate details of the person’s private life and associations.”).
4 See, e.g., Kerr, The Mosaic Theory, supra, at 344, 353 (detailing case
against mosaic theory in favor of a “sequential approach to Fourth
Amendment analysis” and concluding that “despite … good intentions,
the mosaic theory represents a Pandora’s Box that courts should leave
closed”); Kugler & Strahilevitz, supra, at 259–60 (illustrating, empirically,
“that very large majorities of the American public do not conceptualize
Fourth Amendment expectations of privacy in a manner that is congenial
to the ‘mosaic theory’”). But see generally Gray & Citron, supra, at 411–28
(responding to prominent criticism of, and defending, mosaic theory).
No. 20-2352 25
Federal circuit, federal district, and state courts have splintered on how to treat police use of cameras on public property
(or, with consent, on private property) to record what happens outside one’s home. That said, not all the cases we discuss specifically addressed the issue of the government using
cameras to paint a mosaic of a person’s private life, nor did all
the cases deal specifically with pole cameras.
Our sister circuits have almost uniformly declined to find
Fourth Amendment searches in situations similar to the one
presented here. For example, in United States v. Houston,
813 F.3d 282 (6th Cir. 2016), the Sixth Circuit concluded the
government’s use of pole cameras installed on public property and trained on the defendant’s home for ten weeks did
not constitute a Fourth Amendment search. Id. at 287–88. The
Sixth Circuit reasoned the defendant did not have a “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.” Id. The Sixth Circuit emphasized that the agents “only
observed what [the defendant] made public to any person
traveling on the roads surrounding the farm” and that the
camera accomplished what agents “stationed … round-theclock” could have observed. Id. at 288. Furthermore, they explicitly rejected that the duration of surveillance altered their
analysis “because the Fourth Amendment does not punish
law enforcement for using technology to more efficiently conduct their investigations.” Id.5
5 See also United States v. Trice, 966 F.3d 506, 516 (6th Cir. 2020) (reaffirming Houston post-Carpenter), cert. denied, 141 S. Ct. 1395 (2021). But see
United States v. Anderson-Bagshaw, 509 F. App’x 396, 405 (6th Cir.
26 No. 20-2352
In harmony with the Sixth Circuit, the First,6 Fourth,7 and
Tenth8 Circuits (and arguably the Ninth Circuit9) have similarly approved of governmental use of cameras, but we again
2012) (“[W]e confess some misgivings about a rule that would allow the
government to conduct long-term video surveillance of a person’s backyard without a warrant. Few people, it seems, would expect that the government can constantly film their backyard for over three weeks using a
secret camera that can pan and zoom and stream a live image to government agents.”).
6 See, e.g., United States v. Bucci, 582 F.3d 108, 116–17 (1st Cir. 2009)
(holding defendant did not establish “a reasonable objective expectation
of privacy” that was invaded by eight-month long video surveillance of
his home from a utility pole). But see United States v. Moore-Bush, 982 F.3d
50, 50 (1st Cir. 2020) (mem.) (scheduling en banc hearing for March 23,
2021, to review panel decision affirming Bucci on stare decisis grounds).
7 The Fourth Circuit held that the government’s use of “a hidden,
fixed-range, motion-activated video camera placed in the [defendant’s]
open fields” did not violate the Fourth Amendment. Vankesteren, 553 F.3d
at 287, 288–91. This decision, however, did not turn on how long the government used the camera.
8 The Tenth Circuit held that “evidence obtained from the video cameras installed on the telephone poles and the recordings made in the undercover FBI car were not introduced in violation of … the Fourth Amendment.” Jackson, 213 F.3d at 1282; see also United States v. Cantu, 684 F. App’x
703, 703 (10th Cir. 2017) (unpublished) (reaffirming Jackson’s holding that
warrantless video surveillance did not constitute search). Like the Fourth
Circuit in Vankesteren, however, neither Jackson nor Cantu centered on the
mosaic or a like theory.
9 In holding that footage obtained from surveillance camera installed
without warrant in a common area of hospital did not constitute Fourth
Amendment search, the Ninth Circuit reasoned “the defendant had no objectively reasonable expectation of privacy that would preclude video surveillance of activities already visible to the public.” See United States v.
Gonzalez, 328 F.3d 543, 548 (9th Cir. 2003).
No. 20-2352 27
note these cases did not squarely address the same factual and
legal circumstances presented here.
Furthermore, the only circuit to require the government to
seek a court order authorizing video surveillance is the Fifth
Circuit, which, decades before Jones and Carpenter, found the
government’s use of a pole camera for more than thirty days
to record the exterior of defendant’s home “qualif[ied] as a
search under the [F]ourth [A]mendment ….” See CuevasSanchez, 821 F.2d at 251. Significantly, however, the government positioned the camera in that case to look over a tenfoot-tall fence and capture images unviewable to passersby.
See id. Thus, for now, no federal circuit court has found a
Fourth Amendment search based on long-term use of pole
cameras on public property to view plainly visible areas of a
person’s home. To part ways with our sister circuits that have
spoken to pole cameras, then, would likely create a circuit
split, which “generally requires quite solid justification; we
do not lightly conclude that our sister circuits are wrong.” Andrews v. Chevy Chase Bank, 545 F.3d 570, 576 (7th Cir. 2008).
Federal district courts are mixed on whether pole camera surveillance constitutes a search. Following the trend lines
of the federal circuit courts, district courts in the Seventh Circuit have found no Fourth Amendment searches when
law enforcement officers made extended use of pole cameras.10 Some federal district courts outside the Seventh Circuit
10 See, e.g., United States v. Kubasiak, No. 18-CR-120, 2018 WL 4846761,
at *3, *7 (E.D. Wis. Oct. 5, 2018) (finding monthslong use of a camera installed on defendant’s neighbor’s property was not a Fourth Amendment
search because footage revealed “only what the neighbor, or a police officer standing in the neighbor’s house, could have seen”); United States v.
28 No. 20-2352
Kay, No. 17-CR-16, 2018 WL 3995902, at *1, *3 (E.D. Wis. Aug. 21, 2018)
(concluding eighty-seven days of pole camera surveillance “[did] not constitute a Fourth Amendment search” and noting “nearly every federal
court which has addressed the issue has held that pole camera surveillance of a person’s driveway or the exterior of his residence does not violate the person’s reasonable expectation of privacy”); United States v.
Tirado, No. 16-CR-168, 2018 WL 1806056, at *3–4 (E.D. Wis. Apr. 16, 2018)
(finding three-month use of pole camera was not a search because, prior
to Carpenter, “the Seventh Circuit ha[d] not so held [that to be unconstitutional], and the other circuit courts of appeal ha[d] rejected such claims”);
see also generally United States v. Harris, No. 17-CR-175, 2021 WL 268322
(E.D. Wis. Jan. 27, 2021) (finding warrantless video surveillance cameras
in and outside of defendant’s apartment complex did not amount to
Fourth Amendment search because “[u]nlike [the CSLI in Carpenter], the
video surveillance did not track the totality of the defendant’s movements” (citation omitted)).
No. 20-2352 29
agree that use of pole cameras does not constitute a search.11
Nevertheless, that view is not unanimous.12
11 See, e.g., United States v. Flores, No. 19-CR-364, 2021 WL 1312583, at
*8 (N.D. Ga. Apr. 8, 2021) (finding no Fourth Amendment search from
pole camera footage because “[t]he images of a single, fixed location captured by the pole camera in this case d[id] not equate with the activities
revealed by cell-site location information considered by the Court in Carpenter”); United States v. Edmonds, 438 F. Supp. 3d 689, 694 (S.D. W. Va.
2020) (“declin[ing] to adopt the Defendant’s proposed blanket rule that a
warrant is required for use of a pole camera placed in a public location
with a view available to the public”); United States v. Mazzara, No. 16 CR.
576, 2017 WL 4862793, at *10–12 (S.D.N.Y. Oct. 27, 2017) (finding that
twenty-one-month “video surveillance at issue … did not violate any expectation of privacy that modern society is prepared to recognize as reasonable under Katz and its progeny”); United States v. Pratt, No. 16-CR20677-06, 2017 WL 2403570, at *4 (E.D. Mich. June 2, 2017) (“Continuous
camera surveillance of private property does raise privacy concerns and
is evocative of an ‘Orwellian state.’ But there are mitigating factors and
controlling precedent which justify denial of the motion to suppress here.”
(citation omitted)); United States v. Gilliam, No. 12-CR-93, 2015 WL
5178197, at *9 (W.D. Pa. Sept. 4, 2015) (finding no “objectively reasonable
expectation of privacy when the images captured by the pole camera were
visible to any person who was located in the public street looking at his
home”); United States v. Brooks, 911 F. Supp. 2d 836, 843 (D. Ariz. 2012)
(“[L]aw enforcement’s use of the pole camera did not violate the Fourth
Amendment ….”).
12 See, e.g., United States v. Houston, 965 F. Supp. 2d 855, 898 (E.D. Tenn.
2013) (finding that “warrantless video surveillance of the curtilage of [the
Defendant’s home], beyond fourteen (14) days violated the Defendant’s
reasonable expectation of privacy”); United States v. Vargas, 2014 U.S. Dist.
LEXIS 184672, *27 (E.D. Wash. Dec. 15, 2014) (“[L]aw enforcement’s video
surveillance of [the defendant’s] front yard for six weeks with a camera
that could zoom and record violated his reasonable expectation of privacy:
an expectation that society is prepared to recognize as reasonable.”).
30 No. 20-2352
State courts likewise disagree whether pole camera use
constitutes a search. Some state courts have joined the chorus
determining that pole camera use does not qualify as a Fourth
Amendment search.13 However, other state supreme and appellate courts have found the use of pole cameras for varying
durations violates the Fourth Amendment.14 Mirroring this
array of opinions, scholars and students have puzzled over
how the law ought to treat pole camera surveillance.15
13 See, e.g., State v. Duvernay, 2017-Ohio-4219, 92 N.E.3d 262, 269–70, at
¶ 25 (3d Dist.) (affirming an Ohio “trial court’s determination that law enforcement’s use of the pole camera [for nine days] did not violate [the defendant’s] Fourth Amendment right to privacy”).
14 See, e.g., State v. Jones, 903 N.W.2d at 111–13 (holding that government had executed a search through “the warrantless use of a pole camera
to surveil a suspect’s activities outside his residence for two months”); People v. Tafoya, 2019 COA 176, ¶¶ 2, 33–52, No. 17CA1243, 2019 WL 6333762,
at *1, *6–10 (holding that “the continuous, three-month-long use of the
pole camera constituted a search under the Fourth Amendment”), cert.
granted, No. 20SC9, 2020 WL 4343762 (Colo. June 27, 2020); cf. Commonwealth v. Mora, 150 N.E.3d 297, 302 (Mass. 2020) (concluding that “continuous, long-term pole camera surveillance targeted at the residences of [the
defendants] well may have been a search within the meaning of the Fourth
Amendment, a question we do not reach, but certainly was a search under
art. 14” of the Massachusetts Declaration of Rights); Commonwealth v.
Comenzo, No. 1482CR01050, 2021 WL 616548, at *8 (Mass. Super. Jan. 11,
2021) (“[T]he seventeen-day video surveillance in this case would have
required a warrant under Mora.”).
15 See, e.g., Taylor H. Wilson, Jr., Note, The Mosaic Theory's Two Steps:
Surveying Carpenter in the Lower Courts, 99 Tex. L. Rev. Online 155, 173–75
(2021) (discussing the “close case” pole camera surveillance presents under the mosaic theory); Aparna Bhattacharya, Note, The Impact of Carpenter v. United States on Digital Age Technologies, 29 S. Cal. Interdisc. L.J. 489,
501–07 (2020) (discussing and applying Carpenter to pole camera
No. 20-2352 31
3. The Pole Camera Surveillance Here Was Not a
Search Under the Mosaic Theory
Having outlined the theoretical and jurisprudential underpinnings of the mosaic theory and various courts’ treatment of pole camera footage, we now turn to Tuggle’s case.
The thrust of Tuggle’s argument—rooted in the mosaic theory—is that the government’s use of the three pole cameras
unconstitutionally “captured the whole of Mr. Tuggle’s
movements.” See Carpenter, 138 S. Ct. at 2217 (“[I]ndividuals
have a reasonable expectation of privacy in the whole of their
physical movements.”). Even if we accepted the mosaic theory, however—and we do not go that far—current Supreme
Court precedent does not support Tuggle’s argument.
Of course, the stationary cameras placed around Tuggle’s
house captured an important sliver of Tuggle’s life, but they
did not paint the type of exhaustive picture of his every movement that the Supreme Court has frowned upon. If the facts
and concurrences of Jones and Carpenter set the benchmarks,
then the surveillance in this case pales in comparison.
surveillance); Matthew Tokson, The Next Wave of Fourth Amendment Challenges After Carpenter, 59 Washburn L.J. 1, 17–19 (2020) (predicting the Supreme Court will “rule that [pole camera] surveillance violates the Fourth
Amendment”); Taylor Cutteridge, Comment, Now You See Me: An Examination of the Legality of Police Use of Utility Pole Surveillance Cameras, 48 Cap.
U. L. Rev. 75, 102 (2020) (concluding that the Supreme Court should hold
pole camera surveillance does “not constitute a search under the Fourth
Amendment”); Tiffany M. Russo, Comment, Searches and Seizures As Applied to Changing Digital Technologies: A Look at Pole Camera Surveillance,
12 Seton Hall Cir. Rev. 114, 115–18 (2015) (arguing that courts should
broadly apply Ciraolo’s holding—that the defendant did not have an objectively reasonable expectation of privacy when his marijuana crop was
visible to the naked eye—to video surveillance).
32 No. 20-2352
In those cases, the justices expressed concerns about surveillance leading to “a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about
her familial, political, professional, religious, and sexual associations.” See Jones, 565 U.S. at 415 (Sotomayor, J., concurring)
(emphasis added); Carpenter, 138 S. Ct. at 2217 (same). Following this reasoning, many justices saw the GPS and CSLI technologies in Jones and Carpenter as capable of capturing the
whole of the defendants’ movements, therefore implicating
the Fourth Amendment. The CSLI at issue in Carpenter even
tracked the defendant’s movement through not only public
areas, but also private places, which the Court likened to “attach[ing] an ankle monitor to the phone’s user.” 138 S. Ct. at
2218.
Unlike those technologies, the cameras here exposed no
details about where Tuggle traveled, what businesses he frequented, with whom he interacted in public, or whose homes
he visited, among many other intimate details of his life. If
anything, far from capturing the “whole of his physical movements,” id. at 2219, or his “public movements,” Jones, 565 U.S.
at 415 (Sotomayor, J., concurring), the cameras only highlighted Tuggle’s lack of movement, surveying only the time
he spent at home and thus not illuminating what occurred
when he moved from his home.
Beyond the justices’ “cryptic” embrace of the mosaic theory, Kerr, The Mosaic Theory, supra, at 326, the theory, in its
inception, drew a distinction between the “passerby … observ[ing] or even … follow[ing] someone during a single journey as he goes to the market or returns home from work” and
the far more problematic “stranger [who] pick[s] up the scent
again the next day and the day after that, week in and week
No. 20-2352 33
out, dogging his prey until he has identified all the places,
people, amusements, and chores that make up that person’s
hitherto private routine.” Maynard, 615 F.3d at 560. The pole
cameras in this case likely lie somewhere between these extremes but more closely resemble the former. In one sense, the
recordings painted a whole picture of the happenings outside
Tuggle’s front door by recording nonstop for eighteen
months. See, e.g., State v. Jones, 903 N.W.2d at 111 (“[O]fficers
[were] able to ‘capture[] something not actually exposed to
public view—the aggregate of all of [the defendant’s] coming
and going from the home, all of his visitors, all of his cars, all
of their cars, and all of the types of packages or bags he carried
and when.’” (some alterations in original) (quoting United
States v. Garcia-Gonzalez, No. 14-10296, 2015 WL 5145537, at *5
(D. Mass. Sept. 1, 2015))). In another important sense, however, the footage only depicted one small part of a much
larger whole: Tuggle’s life or the “whole of his physical movements.” Carpenter, 138 S. Ct. at 2219. Given their immobile nature, the cameras could not make out an exhaustive record of
Tuggle’s “hitherto private routine,” Maynard, 615 F.3d at 560,
because much if not most of the relevant details occurred outside of the immediate area in front of Tuggle’s home.
The prospective and nonhistorical use of the pole cameras
here further distinguishes them from the technologies in cases
where the Supreme Court relied on mosaic-styled arguments,
which had retrospective capabilities. In Riley v. California, the
Court determined that the government had unlawfully
searched the defendant’s phone based in part on the widening
“gulf between physical practicability and digital capacity” of
phones. 573 U.S. at 394. The court noted the immense amount
of information and data that phones contain, including “photographs, picture messages, text messages, Internet browsing
34 No. 20-2352
history, a calendar, a thousand-entry phone book, and so on.”
Id. As for Internet browsing, the court said it could “reveal an
individual’s private interests or concerns.” Id. at 395. Foreshadowing the main issue in Carpenter, the Court commented
that “[h]istoric location information is a standard feature on
many smart phones and can reconstruct someone’s specific
movements down to the minute, not only around town but
also within a particular building,” essentially allowing the
government to go back in time. Id. at 396.
The Supreme Court brought this idea to the fore in Carpenter when it highlighted CSLI’s “retrospective quality” that
“gives police access to a category of information otherwise
unknowable.” 138 S. Ct. at 2218. The advent of CSLI-like technology therefore allows the government to “travel back in
time to retrace a person’s whereabouts,” obviating what
would have been previous “attempts to reconstruct a person’s
movements [that] were limited by a dearth of records and the
frailties of recollection.” Id. at 2218. We recently suggested
that Carpenter should be read narrowly to proscribe only the
collection of historical CSLI but not real-time CSLI. See United
States v. Hammond, 996 F.3d 374, 383 (7th Cir. 2021) (concluding that government only searched defendant when it collected “historical CSLI,” but otherwise finding no search in
government’s collection of defendant’s “real-time CSLI”).
By the logic of Riley and Carpenter, and our recent observations in Hammond, the pole camera surveillance here did
not run afoul of the Fourth Amendment because the government could not “travel back in time to retrace [Tuggle’s]
whereabouts,” Carpenter, 138 S. Ct. at 2218, to say nothing of
the thorny questions presented by a pre-existing network of
No. 20-2352 35
government cameras.16 The government had to decide ex ante
to collect the video footage by installing the cameras. The government did not tap into an expansive, pre-existing database
of video footage of Tuggle’s home akin to the Internet browsing history and extensive photos stored on cell phones considered in Riley, or the expansive CSLI in Carpenter. Until the
Supreme Court or Congress instructs otherwise, we will read
Carpenter as limited to the unique features of the historical
CSLI at issue there, as distinct from the real-time video footage here. See Hammond, 996 F.3d at 387 (“The ‘narrow’ Carpenter decision did not determine whether the collection of realtime CSLI constitutes a Fourth Amendment search.”). The
majority opinion in Carpenter itself offers support for this interpretation, as it stated that the Court was not “call[ing] into
question conventional surveillance techniques and tools, such
as security cameras.” 138 S. Ct. at 2220 (emphasis added).
Whether pole cameras are the same as security cameras is irrelevant because the cameras here would clearly qualify as a
“conventional surveillance technique[].”See id.
We emphasize, however, that our decision in Tuggle’s
case does not rest on the premise that the government could
have—in theory—obtained the same surveillance by stationing an agent atop the utility poles outside Tuggle’s home, thus
rendering the decision to instead use pole cameras constitutional. See Houston, 813 F.3d at 289 (“[I]t is only the possibility
16 See, e.g., Rebecca Lipman, Protecting Privacy with Fourth Amendment
Use Restrictions, 25 Geo. Mason L. Rev. 412, 436–37 (2018) (“Cameras have
existed for a long time; networks of cameras blanketing an entire metro
area that are equipped with facial recognition technology have not. Such
a network could allow law enforcement to search for any individual, anywhere in a city, going back for weeks or months ….” (footnotes omitted)).
36 No. 20-2352
that a member of the public may observe activity from a public vantage point—not the actual practicability of law enforcement’s doing so without technology—that is relevant for
Fourth Amendment purposes.”). This fiction contravenes the
Fourth Amendment and Katz’s command to assess reasonableness. To assume that the government would, or even
could, allocate thousands of hours of labor and thousands of
dollars to station agents atop three telephone poles to constantly monitor Tuggle’s home for eighteen months defies the
reasonable limits of human nature and finite resources. In our
view, the premise that the government could realistically accomplish the pole camera surveillance here for more than a
few days is a fiction that courts should not rely on to limit the
Fourth Amendment’s protections. See Jones, 565 U.S. at 416
(Sotomayor, J., concurring) (“I do not regard as dispositive the
fact that the government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques.”). We thus close the door on the notion that surveillance accomplished through technological means is constitutional simply because the government could theoretically accomplish the same surveillance—no matter how laborious—
through some nontechnological means.
Although we now hold that the pole camera surveillance
of the exterior of Tuggle’s home did not constitute a Fourth
Amendment search, we are not without unease about the implications of that surveillance for future cases. The eighteenmonth duration of the government’s pole camera surveillance—roughly four and twenty times the duration of the
data collection in Carpenter and Jones, respectively—is concerning, even if permissible.
No. 20-2352 37
That concern presents us with an obvious line-drawing
problem: How much pole camera surveillance is too much?
Most might agree that eighteen months (roughly 554 days) is
questionable, but what about 250 days? 100 days? 20 days? 1
day? See also Kerr, The Mosaic Theory, supra, at 329–43 (detailing the “remarkable set of novel and difficult questions”
posed by the mosaic theory). Despite the inherent problems
with drawing an arbitrary line, the status quo in which the
government may freely observe citizens outside their homes
for eighteen months challenges the Fourth Amendment’s
stated purpose of preserving people’s right to “be secure in
their persons, houses, papers, and effects.” Drawing our own
line, however, risks violating Supreme Court precedent and
interfering with Congress’s policy-making function, which
would exceed our mandate to apply the law. United States v.
Cuevas-Perez, 640 F.3d 272, 276, 285 (7th Cir. 2011) (Flaum, J.,
concurring) (“The matter is, as they say, above our pay
grade.”), judgment vacated, 565 U.S. 1189 (2012).
Beyond the line-drawing issues, we conclude by sounding
a note of caution regarding the current trajectory of Fourth
Amendment jurisprudence. As technological capabilities advance, our confidence that the Fourth Amendment (as currently understood by the courts) will adequately protect individual privacy from government intrusion diminishes. Kyllo,
533 U.S. at 33–34 (“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment
has been entirely unaffected by the advance of technology.”).
Current Fourth Amendment jurisprudence admits of a precarious circularity: Cutting-edge technologies will eventually
and inevitably permeate society. In turn, society’s expectations of privacy will change as citizens increasingly rely on
and expect these new technologies. Once a technology is
38 No. 20-2352
widespread, the Constitution may no longer serve as a backstop preventing the government from using that technology
to access massive troves of previously inaccessible private information because doing so will no longer breach society’s
newly minted expectations. With the advent of digital, cloudbased, and smart capabilities, these new technologies will seldom contravene the traditional limitations imposed by the
Fourth Amendment on physical invasions. Jones, 565 U.S. at
404–11.
Cameras are a perfect example of the circularity. In 1791,
no one would expect—because the technology did not exist—
that the government could capture a still (or moving) image
of a citizen at a given time or place. Even once invented and
introduced to society, few would have expected that the government would use then-unwieldy and expensive cameras to
aid in fast-moving law enforcement investigations. Eventually, cameras grew so sophisticated, discrete, portable, and inexpensive that they pervaded society. By that point, the government’s use of cameras was entirely unsurprising, even
though the Framers might have balked at such a prospect
when they penned the Fourth Amendment. See David Alan
Sklansky, Too Much Information: How Not to Think About Privacy and the Fourth Amendment, 102 Cal. L. Rev. 1069, 1085
(2014) (“Cameras mounted in public and semi-public
places … are increasingly unremarkable, their presence taken
for granted.”). In other words, once society sparks the promethean fire—shifting its expectations in response to technological developments—the government receives license under
current Fourth Amendment jurisprudence to act with greater
constitutional impunity.
No. 20-2352 39
Barring a transformation in governing law, we expect this
chronicle of cameras to repeat itself again and again with the
evolution of far more invasive technologies. Today’s pole
cameras will be tomorrow’s body cameras,17 “protracted location tracking using [automatic license plate readers],”18
drones,19 facial recognition,20 Internet-of-Things and smart
devices,21 and so much more that we cannot even begin to
17 See Erik Nielsen, Comment, Fourth Amendment Implications of PoliceWorn Body Cameras, 48 St. Mary’s L.J. 115, 120 (2016) (“[T]he increased use
of widespread video recording, although intended to prevent misconduct
of police officers, creates concerns over the Fourth Amendment rights of
individuals to be free from unreasonable searches.”).
18 See Samuel D. Hodge, Jr., Big Brother Is Watching: Law Enforcement’s
Use of Digital Technology in the Twenty-First Century, 89 U. Cin. L. Rev. 30,
40 (2020) (“[L]icense plate reader databases provide the opportunity for
institutionalized abuse by allowing anyone who has access to the information to snoop into an individual’s daily activities, habits, or present and
past relationships.”).
19 See Jennifer M. Bentley, Note, Policing the Police: Balancing the Right
to Privacy Against the Beneficial Use of Drone Technology, 70 Hastings L.J.
249, 251 (2018) (“[D]rones are … potent tools that can be used to invade
privacy and conduct highly intrusive surveillance.”).
20 See Andrew Guthrie Ferguson, Facial Recognition and the Fourth
Amendment, 105 Minn. L. Rev. 1105, 1108 (2021) (asserting that “the Fourth
Amendment will not save us from the privacy threat created by facial
recognition surveillance”).
21 See Eunice Park, Objects, Places and Cyber-Spaces Post-Carpenter: Extending the Third-Party Doctrine Beyond CSLI: A Consideration of IoT and
DNA, 21 Yale J.L. & Tech. 1, 58 (2019) (arguing that “clarity [in Fourth
Amendment jurisprudence] is needed for the vast array of unregulated
technologies growing in popularity, and for those yet to emerge”); Andrew Guthrie Ferguson, The “Smart” Fourth Amendment, 102 Cornell L.
Rev. 547, 631 (2017) (“In a world that needs both smart devices and the
40 No. 20-2352
envision. New technologies of this sort will not disappear, nor
will the complicated Fourth Amendment problems that accompany them. If anything, we should expect technology to
continue to grow exponentially. And if current technologies
are any indication, that technological growth will predictably
have an inverse and inimical relationship with individual privacy from government intrusion, presenting serious concerns
for Fourth Amendment protections.
Assuming as much, it might soon be time to revisit the
Fourth Amendment test established in Katz. See Cuevas-Perez,
640 F.3d at 276 (Flaum, J., concurring) (“If the doctrine needs
clarifying, tweaking, or an overhaul in light of technologies
employed by law enforcement, that additional guidance
should come from the Supreme Court.”). Indeed, almost four
decades ago, when considering a respondent’s argument that
“twenty-four hour surveillance of any citizen of this country
will be possible, without judicial knowledge or supervision,”
the Court reserved judgement because, “if such dragnet type
law enforcement practices as respondent envisions should
eventually occur, there will be time enough then to determine
whether different constitutional principles may be applicable.” Knotts, 460 U.S. at 283–84. As this case illustrates, roundthe-clock surveillance for eighteen months is now unextraordinary.
This could also be an apt area for Congress to legislate because, as some have noted, “Congress has significant institutional advantages over the courts in trying to regulate privacy
Fourth Amendment, there … needs to be a new theory to protect the data
trails we leave behind. Without such a theory, data trails will exist outside
of Fourth Amendment protection, and an intrusive sensor surveillance
system will be created without any constitutional restraints.”).
No. 20-2352 41
in new technologies.” Kerr, The Mosaic Theory, supra, at 350;
see also Kyllo, 533 U.S. at 51 (Stevens, J., dissenting) (“It would
be far wiser to give legislators an unimpeded opportunity to
grapple with these emerging issues rather than to shackle
them with prematurely devised constitutional constraints.”);
Carpenter, 138 S. Ct. at 2246 (Thomas, J., dissenting) (“With no
sense of irony, the Court invalidates this [statutory] regime
today—the one that society actually created in the form of its
elected representatives in Congress.” (internal quotation
marks and citation omitted)); Cuevas-Perez, 640 F.3d at 286
(Flaum, J., concurring) (“[T]he unsettled, evolving expectations in this realm, combined with the fast pace of technological change, may make the legislature the branch of government that is best suited, and best situated, to act.”).
For now, though, we will continue to faithfully apply our
current understanding of the Constitution and the Supreme
Court’s precedent. With respect to the pole cameras in this
case, that understanding requires that we find no search in
violation of the Fourth Amendment. The district court therefore did not err in denying Tuggle’s motion to suppress. As
such, we have no need to consider the government’s fallback
argument that, even if there were a Fourth Amendment
search, the good faith exception to the exclusionary rule
would apply.
Outcome: For these reasons, we AFFIRM the district court’s denial of Tuggle’s motion to suppress
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