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Tuggle v. United States (Amicus Brief)

The Brennan Center filed an amicus brief urging the Supreme Court to grant certiorari in a case challenging warrantless, targeted video surveillance of a home for eighteen months.

Published: November 12, 2021

Begin­ning in 2013, federal agents surrepti­tiously surveilled Travis Tuggle’s home in Mattoon, Illinois, for eight­een months as part of a drug traf­fick­ing invest­ig­a­tion. The federal agents installed three video cameras on public util­ity poles facing Tuggle’s home without a warrant or court order, repres­ent­ing a massive intru­sion on Tuggle’s privacy. The cameras recor­ded around the clock, captur­ing anybody who came and went from the home, as well as any pack­ages that were delivered. Tuggle sought to suppress the evid­ence gathered by the surveil­lance foot­age, arguing that the surveil­lance viol­ated his Fourth Amend­ment rights. The district court denied his motion, reas­on­ing that the exter­ior of his house was visible to any passerby in the neigh­bor­hood and that he there­fore did not have a reas­on­able expect­a­tion of privacy.

On July 14, 2021, the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s decision, hold­ing that the Fourth Amend­ment permits long-term, warrant­less, targeted video surveil­lance of a home. The court ruled that the surveil­lance did not consti­tute a search under exist­ing Supreme Court preced­ent, but repeatedly expressed its concern about long-term surveil­lance in the digital age, while reas­on­ing that curtail­ment of the govern­ment’s power should come from the Supreme Court or Congress. Tuggle appealed the Seventh Circuit’s decision to the Supreme Court.

The Bren­nan Center filed an amicus brief with the Supreme Court in support of Tuggle’s peti­tion for certi­or­ari, in part­ner­ship with the Elec­tronic Fron­tier Found­a­tion, the Center for Demo­cracy and Tech­no­logy, the Elec­tronic Privacy Inform­a­tion Center, and the National Asso­ci­ation of Crim­inal Defense Lawyers. Our brief argues three points.

First, the capab­il­it­ies of surveil­lance have increased signi­fic­antly, while the costs of surveil­lance have decreased just as signi­fic­antly. Today’s pole camera tech­no­logy already far exceeds the tech­no­logy anti­cip­ated in the Supreme Court’s prior opin­ions. The cameras that the federal agents used to surveil Tuggle in 2013 were power­ful, to be sure, with zoom lenses and light­ing compon­ents that allowed officers to capture far more than what one can observe with the naked eye. An invest­ig­a­tion using pole cameras now would likely include far more soph­ist­ic­ated tech­no­logy, however, includ­ing digital and networked cameras, true “night vision,” and arti­fi­cial intel­li­gence to swivel and zoom auto­mat­ic­ally. At the same time, while the capab­il­it­ies of camera surveil­lance tech­no­logy have advanced, its costs have decreased, radic­ally lower­ing the finan­cial barri­ers to mass law enforce­ment use.

Second, we argue that because pole cameras enable long-term monit­or­ing of private resid­ences, they implic­ate the Fourth Amend­ment’s limit­a­tions on collec­tion of data over time (even if actions are observ­able by the public) as well as data disclos­ing what happens in and around the home. That is, court cases have estab­lished that warrant­less searches of the home and areas surround­ing the home are unreas­on­able. Recent cases have also held that indi­vidu­als main­tain a reas­on­able expect­a­tion of privacy against prolonged govern­ment surveil­lance, even when they are in public view.

Third, the degree of privacy afforded by the Fourth Amend­ment should not depend on whether someone has built a fence around their prop­erty (which Tuggle had not done). A contrary rule would be overly detri­mental to people with limited finan­cial means – dispro­por­tion­ately likely to be indi­vidu­als of color – who could not safe­guard their privacy.

If the Supreme Court agrees to hear the case, the parties will file addi­tional briefs explain­ing why the Court should rule in their favor.

The Bren­nan Center previ­ously filed an amicus brief with the U.S. Court of Appeals for the Sixth Circuit in United States v. Hous­ton, arguing that police must get a warrant to engage in long-term, covert surveil­lance of a home. The court denied the peti­tion for rehear­ing en banc.

Tuggle v. US Amici Brief by The Bren­nan Center for Justice