Update
The U.S. Court of Appeals for the Sixth Circuit issued an order on April 15, 2016 denying the petition for rehearing en banc in U.S. v. Houston.
The Case
The Brennan Center filed an amicus brief to the U.S. Court of Appeals for the Sixth Circuit in U.S. v. Houston on February 29, 2016, arguing that police must get a warrant to engage in long-term, covert video surveillance of a home. The Sixth Circuit had ruled that such surveillance does not qualify as a search under the Fourth Amendment, and the brief supports Mr. Houston’s request that the whole court rehear the case. The National Association of Criminal Defense Lawyers (NACDL), the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), ACLU of Tennessee, the Honorable Bob Barr, and the Libertarian National Committee joined the brief as well.
Rocky Joe Houston was arrested in 2013 and convicted of being a felon in possession of a firearm. During the investigation leading to this arrest, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) installed a video camera without a warrant on a public utility pole overlooking Mr. Houston’s private property. The camera, which could pan and zoom in, watched and recorded Mr. Houston’s farm for ten weeks, and video and photographs from the camera were used as evidence in his trial.
After he was convicted, Mr. Houston appealed, arguing that by covertly surveilling him for a long period without a warrant, the government had violated the Fourth Amendment, which requires that the government get a warrant when it engages in a search. On February 8, 2016, the Sixth Circuit issued a 2–1 ruling holding that Mr. Houston’s Fourth Amendment rights had not been violated. The court suggested that an ATF agent could have spent ten weeks perched on top of the utility pole, and reasoned that the camera was simply a more efficient way to do the same job. One judge filed a concurring opinion indicating that he would have held that the long-term warrantless surveillance did violate Mr. Houston’s constitutional rights (but would have upheld the conviction on other grounds). Mr. Houston filed a petition for the full Sixth Circuit to rehear his case en banc, and the Brennan Center filed an amicus brief supporting this petition.
The Brennan Center’s brief argues that the original panel decision fails to account for the realities of technology, and is fundamentally at odds with multiple Supreme Court and lower court opinions. The brief argues that there is a substantial difference between personal observation by an officer and long-term, covert electronic surveillance – not just in degree but in kind.
In particular, ten-week video surveillance of private property involves a degree of intrusion that a reasonable person would not, and should not, expect to encounter. No police officer could sit on the top of a telephone pole to watch a property for ten weeks, let alone do so without being noticed. And extended surveillance of this kind allows the government to see a detailed picture of the subject’s everyday life that would never be exposed, as a practical matter, to a passer-by on public streets. This is why the Supreme Court has increasingly counseled caution in extending old rules to new technology, whether cell phones, GPS trackers, or heat-sensing devices.
Accordingly, the brief argues that it is a matter of exceptional constitutional importance that the full court rehear the case and align its approach with that of the Supreme Court.
Read the petition for rehearing en banc here.
Read the response of the United States in opposition to rehearing here.