Bloomberg Law
Nov. 1, 2021, 8:00 AM

Police Turn on Hidden Cameras, Turn Off Fourth Amendment

Joshua Windham
Joshua Windham
Institute for Justice
Daryl James
Daryl James
Institute for Justice

Police investigators had questions for Travis Tuggle in 2014, so they came to his home in Mattoon, Ill. But when they arrived, they did not knock or serve a warrant.

The officers needed more evidence, and they needed it on the sly. So instead of announcing their presence, they came quietly and mounted three cameras on utility poles surrounding the property.

Using remote-control technology from 80 miles west in Springfield, Ill., officers could zoom, pan, and adjust the angles, giving them live feeds and 24/7 recordings of all the comings and goings at Tuggle’s home. Federal, state, and local officers then watched for 18 months, all without a warrant.

Once the officers had probable cause, they got court permission to search Tuggle’s home and caught him with crystal methamphetamine. By then the police had an airtight case. Their only potential problem was the U.S. Constitution.

The Fourth Amendment prohibits unreasonable searches, and Tuggle claimed that the prolonged surveillance outside his home violated his rights. Yet when he filed a motion to suppress the video evidence in 2018, the U.S. District Court for the Central District of Illinois refused to apply Fourth Amendment scrutiny.

Instead, the court determined that no “search” had occurred prior to the entry in Tuggle’s home, so the Fourth Amendment did not apply. To reach this conclusion, the court had to set aside the dictionary and replace the normal meaning of “search” with a fuzzy definition that different courts interpret in different ways at different times.

Everyone Searches

In everyday usage, “search” refers to any purposeful investigation. People search for lost pets and keys. They search for bargains when they shop. They search for information online, using search terms in search engines. People even search for love.

It’s not Greek. Anybody who speaks English would call the police activity outside Tuggle’s home a search, but the court said no. In the twisted world of Fourth Amendment jurisprudence, using technology to observe what people expose to the public—including on their porches or through their windows—is not a “search.”

Based on the wordplay, a judge denied Tuggle’s motion without ever getting to the substance of his claim. Unsatisfied, Tuggle took the issue to the U.S. Court of Appeals for the Seventh Circuit in 2018. He also pleaded guilty to trafficking and started a 30-year sentence in 2019, while reserving the right to pursue his motion to its conclusion.

Some might argue that Tuggle got what he deserved, so the police tactics don’t matter. But everyone should be concerned about government overreach, especially when technology-enhanced prying without judicial signoff is involved.

Our public interest law firm, the Institute for Justice, has observed a steady erosion of Fourth Amendment protections since we litigated our first case 30 years ago. The shift hurts law-abiding food truck owners, landlords and renters, rural landowner, and many others.

Modern Technology and the Fourth Amendment

The appellate judges in Tuggle’s case grappled with the implications. Recognizing that technology increasingly creates new ways to search, the court imagined life in the not-so-distant future, when “Americans will traverse their communities under the perpetual gaze of cameras.”

Despite its misgivings, the court ruled against Tuggle on July 14, 2021. The panel had no choice. The U.S. Supreme Court has bound all lower courts with a series of precedents that warp the meaning of “search.”

Under the current rules, “visual observation is no ‘search’ at all.” Yet how far investigators can go before their conduct becomes a search remains unclear.

Officers can surround a home with cameras, like they did in Tuggle’s case. But if they use a thermal sensor to view heat radiating from a home to see if someone is growing marijuana, like federal agents did in Oregon, then they need a warrant.

Where to Draw the Line?

Officers can fly an airplane over someone’s home at 1,000 feet to get a better view, like officers did without a warrant in Santa Clara, Calif. Or they can circle with a helicopter at 400 feet, like the Pasco County Sheriff’s Office did without a warrant in Florida. But what about a drone hovering even lower and taking photographs?

Where exactly is the cutoff? The appellate judges in Tuggle’s case saw an “obvious line-drawing problem.”

Even if the Supreme Court set clear boundaries, lower courts would face another challenge. Current rules largely hinge on people’s “reasonable expectations of privacy,” which is a moving target. Attitudes shift as technology advances, or vice versa: Technology advances as attitudes shift.

The trajectory is alarming. Fortunately, a course correction might be under way, as a growing number of jurists push for a return to the plain meaning of “search.” As they correctly argue, the word was not a legal term of art when the Constitution was adopted. Then, as now, a “search” was simply a purposeful investigative act.

The Supreme Court now has a chance to correct the confusion, following Tuggle’s petition on Oct. 8 for the justices to hear his case. If they agree, they can restore the original definition of “search” and simplify the line-drawing process.

If they do, fewer cases would turn on the threshold question: “Has a search occurred?” And more cases would turn on the question that matters: “Was the search reasonable?”

So far, no court has made that call for Tuggle. Whether the police acted reasonably or not, he is entitled to an answer. Twisting the dictionary to evade Fourth Amendment scrutiny leaves everyone vulnerable.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Joshua Windham is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Va.

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