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Supreme Court Urged to Rule That Prolonged, Warrantless Spying by Police Using Hidden Cameras Is an Illegal Search

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Published on: November 24, 2021

WASHINGTON, D.C. — Challenging attempts by the government to carry out around-the-clock, year-long, warrantless surveillance on Americans, The Rutherford Institute and the Cato Institute have asked the U.S. Supreme Court to find that the use of hidden cameras mounted on utility poles, aimed at private homes, and used to record activity at the home violates the Fourth Amendment’s prohibition against warrantless, unreasonable searches. The amicus brief in Travis Tuggle v. U.S. disputes a lower court ruling that the use of hidden cameras on a utility pole for prolonged spying on a private residence does not constitute a search under the Fourth Amendment. Although the court reasoned that no “search” had occurred since the cameras recorded activity that took place in public view, civil liberties advocates contend that such expansive surveillance, enabled by technology that can reveal one’s visitors, when one comes and goes, and other intimate details of daily life, is exactly the kind of unreasonable intrusion that the Fourth Amendment was intended to prevent.

Jim Harper with TechLaw at the University of Arizona College of Law helped advance the arguments in the amicus brief.

“At one time, the idea of a total surveillance state tracking one’s every move would have been abhorrent to most Americans,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Unfortunately, we have gone from being a nation where privacy is king to one where nothing is safe from the prying eyes of government. Still, that doesn’t mean the government can sidestep the Fourth Amendment’s warrant requirement through the use of hidden cameras which, coupled with cutting edge technologies, lays bare every detail of our lives.”

As part of “Operation Frozen Tundra,” a drug-trafficking investigation conducted by multiple federal agencies in central Illinois, police mounted three hidden surveillance cameras on utility poles near Travis Tuggle’s home starting in August 2014. Tuggle lived in a residential neighborhood with lightly traveled roads, which made physical surveillance difficult for officers. The agents used live feeds from the three video cameras to monitor Tuggle’s activities and visitors in his yard and driveway, and stored the data on a server at the FBI’s office. The cameras were equipped with technology to enable better pictures at night, and agents could remotely operate the cameras to zoom, pan, and tilt the views. From the time of installing the first camera, agents surveilled Tuggle’s residence around the clock for over a year and a half without ever obtaining a search warrant to do so. The evidence from the videos led to Tuggle being charged and convicted of intending to distribute methamphetamine. Although Tuggle challenged the warrantless video-surveillance as a violation of his Fourth Amendment rights, the government argued that Tuggle did not have a reasonable expectation of privacy from the pole cameras, regardless of the length of time. The district court sided with the government, ruling that the use of the cameras did not constitute a “search.” Although the Seventh Circuit Court of Appeals affirmed the lower court’s ruling, it warned that “we are steadily approaching a future with a constellation of ubiquitous public and private cameras accessible to the government that catalog the movements and activities of all Americans. Foreseeable expansion in technological capabilities and the pervasive use of ever-watching surveillance will reduce Americans’ anonymity, transforming what once seemed like science fiction into fact.”

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

The amicus brief in Tuggle v. U.S.

Article posted with permission from John Whitehead

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