United States v. Tuggle, No. 20-2352

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Flaum, Circuit Judge.
• Citation: 4 F.4th 505
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Travis TUGGLE, Defendant-Appellant.
• Docket Number: No. 20-2352
• Decision Date: 14 July 2021

4 F.4th 505

UNITED STATES of America, Plaintiff-Appellee,
v.
Travis TUGGLE, Defendant-Appellant.

No. 20-2352

United States Court of Appeals, Seventh Circuit.

Argued May 12, 2021
Decided July 14, 2021

Jeffrey Kienstra, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Robert J. Palmer, Attorney, May, Oberfell & Lorber, Mishawaka, IN, for Defendant-Appellant.

Before Flaum, Hamilton, and Brennan, Circuit Judges.

Flaum, Circuit Judge.

One day, in a not-so-distant future, millions of Americans may well wake up in a smart-home-dotted nation. As they walk out their front doors, cameras installed on nearby doorbells, vehicles, and municipal traffic lights will sense and record their movements, documenting their departure times, catching glimpses of their phone screens, and taking note of the people that accompany them.

These future Americans will traverse their communities under the perpetual gaze of cameras. Camera-studded streets, highways, and transit networks will generate precise information about each vehicle and its passengers, for example, recording peoples’ everyday routes and deviations therefrom. Upon arrival at their workplaces, schools, and appointments, cameras on buildings will observe their attire and belongings while body cameras donned on the vests of police and security officers will record snippets of face-to-face or phone conversations. That same network of cameras will continue to capture Americans from many angles as they run errands and rendezvous to various social gatherings. By the end of the day, millions of unblinking eyes will have discerned Americans’ occupations and daily routines, the people and groups with whom they associate, the businesses they frequent, their recreational activities, and much more.

The setting described above is not yet a total reality. Nonetheless, 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. Constitutionally and statutorily mandated

4 F.4th 510

protections stand as critical bulwarks in preserving individual privacy vis-à-vis the government in this surveillance society. To date, however, such measures have been challenged by the pace of technological developments.

The Framers of the Constitution sought "to place obstacles in the way of a too permeating police surveillance." United States v. Di Re , 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948). That central aim animated their efforts, embodied in the Fourth Amendment to the Constitution, to preserve the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." For most of our country's history, the concept of a "search" was tied to common-law trespass, in other words, physical touch. Over time, however, the evolution of technology raised complicated questions regarding the appropriate interpretation and scope of the Fourth Amendment. Chief among those questions: What constitutes a search in a digital society whose technology empowers near-perfect surveillance without the need for physical touch?

To grapple with the enhanced technological capacity of law enforcement investigations, the Supreme Court followed Justice Harlan's concurrence in Katz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and expanded its understanding of Fourth Amendment protections. The resulting Katz test, containing subjective and objective components, instructs courts to assess first whether a person has "exhibited an actual (subjective) expectation of privacy’ " and second, whether that "expectation be one that society is prepared to recognize as ‘reasonable.’ " Id. at 361, 88 S.Ct. 507 (Harlan, J., concurring).

Despite its best intentions, this expectations-based Katz test has paved the way for a perilous circularity for new technology. Specifically, our current formulation of a Fourth Amendment search often turns on whether a used technology becomes widespread. Stated differently, as society's uptake of a new technology waxes—cars, GPS devices, cameras, and the Internet come to mind—expectations of privacy in those technologies wane. In today's interconnected, globalized, and increasingly digital world, for example, Americans largely accept that cell phones will track their locations, their Internet usage will leave digital footprints, and ever-watching fixed cameras will monitor their movements. These evolving expectations thus continually undermine themselves.

As long as the government moves discreetly with the times, its use of advanced technologies will likely not breach society's reconstituted (non)expectations of privacy. The upshot: the Katz test as currently interpreted may eventually afford the government ever-wider latitude over the most sophisticated, intrusive, and all-knowing technologies with lessening constitutional constraints.

These observations bring us to the instant case, a harbinger of the challenge to apply Fourth Amendment protections to accommodate forthcoming technological changes. Suspecting defendant Travis Tuggle's involvement in drug trafficking, the government surveilled him for eighteen months without a warrant. The officers installed three cameras on public property that captured the outside of Tuggle's home. When the government used the resulting footage to prosecute Tuggle, Tuggle moved to suppress the footage as violative of his Fourth Amendment right.

Tuggle's case presents an issue of first impression for this Court: whether the warrantless use of pole cameras to observe

4 F.4th 511

a home on either a short- or long-term basis amounts to a "search" under the Fourth Amendment. The answer—and even how to reach it—is the subject of disagreement among our sister circuits and counterparts in state courts. Their divergent answers reflect the complexity and uncertainty of the prolonged use of this technology and others like it. Nevertheless, most federal courts of appeals that have weighed in on the issue have concluded that pole camera surveillance does not constitute a Fourth Amendment search.

Ultimately, bound by Supreme Court precedent and without other statutory or jurisprudential means to cabin the government's surveillance techniques presented here, we hold that the extensive pole camera surveillance in this case did not constitute a search under the current understanding of the Fourth Amendment. In short, the government's use of a technology in public use, while occupying a place it was lawfully entitled to be, to observe plainly visible happenings, did not run afoul of the Fourth Amendment. Therefore, we affirm the district court's denial of Tuggle's motion to suppress.

I. Background

Between 2013 and 2016, several law enforcement agencies investigated a large methamphetamine distribution conspiracy in central Illinois that resulted in Tuggle's prosecution. The focus of this appeal is the government's warrantless use of three video cameras affixed to nearby utility poles to monitor Tuggle's residence.

The government installed three cameras on public property that viewed Tuggle's home. Agents mounted two cameras on a pole in an alley next to his residence and a third on a pole one block south of the other two cameras. The first two cameras viewed the front of Tuggle's home and an adjoining parking area. The third camera also viewed the outside of his home but primarily captured a shed owned by Tuggle's coconspirator and codefendant, Joshua Vaultonburg.

Together, the three cameras captured nearly eighteen months of footage by recording Tuggle's property between 2014 and 2016. Law enforcement agents installed the first camera in August 2014, the second in December 2015, and the third in September 2015. The officers left the three cameras on their respective poles until March 2016.

The cameras offered several advantages to the government's investigation of the drug conspiracy. While in use, the cameras recorded around the clock. Rudimentary lighting technology improved the quality of overnight footage, although the cameras did not have infrared or audio capabilities. Law enforcement agents could also remotely zoom, pan, and tilt the cameras and review the camera footage in real time, though the footage captured only the exterior of Tuggle's house. While officers frequently monitored the live feed during business hours, they could later review all the footage, which the government stored at the Federal Bureau of Investigation office in Springfield, Illinois. More generally, the cameras had the practical advantage of enabling the government to surveil Tuggle's home without conspicuously deploying agents to perform traditional visual or physical surveillance on the lightly traveled roads of Tuggle's residential neighborhood.

The cameras provided substantial video evidence that supported the government's eventual indictment of Tuggle (and others). The officers tallied over 100 instances of what they suspected were deliveries of methamphetamine to Tuggle's...