Legal Brief: The Problems with Modern Warrantless Surveillance

In 1949, a brilliant and prescient author known as George Orwell wrote the famous book,1984. The novel served as a warning against the dangers of authoritarianism, constant surveillance, and the manipulation of truth. Orwell depicted a dystopian state where people are monitored every second of the day by an unaccountable and overbearing government. 

The lessons conveyed by Orwell are increasingly applicable today – particularly in law enforcement and security. The combination of emerging technologies and zealous policing presents a risk to fundamental civil liberties, such as the rights granted under the Fourth Amendment of the U.S. Constitution to be free from unreasonable search and seizure.

As a former military and federal prosecutor, I have a predisposition in favor of law enforcement; however, my job was not to win – my job was to do justice. Sometimes justice requires that we balance the goals of law enforcement with a respect for fundamental rights. You can do both. Admittedly, it is not always easy.

In prior columns in August 2020 and February 2022, I wrote about two modern warrantless surveillance cases focused on sustained video monitoring of criminal suspects. A quick recap:

In United States v. Moore-Bush, the Court of Appeals for the First Circuit upheld the government’s warrantless use of a pole camera to continuously record the front of the defendants’ home for eight months (read the full column at www.securityinfowatch.com/21146837). In United States v. Tuggle, the Court of Appeals for the Seventh Circuit found that police did not need a warrant to secretly record all activity in front of a drug trafficking suspect’s home 24 hours a day for 18 months (read the full column at www.securityinfowatch.com/21254216).

Now a new case involving a similar topic could potentially be considered by the U.S. Supreme Court.

Potential Supreme Court Case: Williamson vs. United States

In October 2018, law enforcement secretly installed two video cameras near the top of utility poles to surveil Rolando Williamson’s home. The first camera was aimed at Williamson’s front yard and the public-facing front of his house.

The second camera could see over an 8-foot privacy fence that enclosed most of Williamson’s backyard. These cameras were used to continuously monitor Williamson’s home for more than 10 months, and the police never obtained a search warrant authorizing this sustained surveillance.

The resulting video footage supplied probable cause to investigate and ultimately convict Williamson in federal court. On appeal, his lawyers argued that the camera surveillance constituted an impermissible, warrantless search in violation of the Fourth Amendment. The Eleventh Circuit disagreed, reasoning that because one side of Williamson’s yard was “screened in by shrubbery” and not completely enclosed, he had no reasonable expectation of privacy in any of it.

Williamson and his lawyers have now petitioned the U.S. Supreme Court for review. While most cases submitted for review are rejected, this case has the potential to be considered. Others have submitted briefs in support of the petition – arguing that the continual surveillance of Williamson’s property for a period of months without a warrant was an illegal search. Among other things, they argue that the Supreme Court has never held partial visibility justifies long-term, technology-assisted monitoring of a private home.

That may be true, but the Court has held that warrantless flyovers by police do not violate the Fourth Amendment where officers conduct brief, naked-eye observations of a person’s home. For example, in California v. Ciraolo, 476 U.S. 207 (1986), the U.S. Supreme Court held that no search occurred when officers flew a plane over the defendant’s property, glanced into a backyard, and photographed what was “readily discernible to the naked eye.” Likewise, in Florida v. Riley, 488 U.S. 445 (1989), an officer circled a helicopter “twice over respondent’s property” and “[with] his naked eye” observed marijuana growing inside a greenhouse.

Both of these cases hinged on the brevity of the observations and the ordinary human perspective involved – which is in direct contrast to the sustained technological surveillance in the Williamson case (and the cases outlined in my prior columns).

The Potential Fallout

The Supreme Court has recognized that the public nature of some information does not eviscerate all Fourth Amendment protections. In United States v. Jones (2012), a GPS tracking device was attached to the defendant’s vehicle to track his movements. The Court ruled this constituted a search, even though the information gathered by police concerned the defendant’s movements on “public roads, which were visible to all.”

Modern surveillance tools like security cameras, drones, and other sensors allow the government to monitor millions of people with ease. Law enforcement can track movements, identify faces, record conversations, and store that information indefinitely. Williamson and his supporters argue that the underlying decision against him invites the warrantless deployment of these technologies against any part of a home considered “exposed to the public.”

Such a result, they argue, enables the government to create a permanent network of continuous surveillance that tracks Americans in public and private.

As Orwell wrote in 1984, “There was of course no way of knowing whether you were being watched at any given moment, how often, or on what system.” Whether in 1984 or today, and whether in fiction or reality, justice is not always easy.