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United States v. Houston (Amicus Brief)

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.

Published: February 29, 2016

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 brief here.

Read the peti­tion for rehear­ing en banc here.

Read the response of the United States in oppos­i­tion to rehear­ing here.

Read the Panel decision here.