The Sixth Circuit held in early February that law enforcement's use of a camera on a public utility pole was not a search and did not require a warrant or judicial authorization. United States v. Houston.
ATF agents were investigating individuals with felony records who allegedly possessed firearms. Because the weapons were possessed on a rural farm, the agents were not able to get close enough to observe the targets. So, in lieu of live surveillance, the agents set up a video camera on a public utility pole about 200 yards from the trailer on the farm where the targets spent most of their time.
Despite the camera being in operation for ten weeks observing private property, the Sixth Circuit held that it did not constitute a search requiring a warrant. The Court explained that the ATF agents had a right to access the public utility pole and the camera captured only views that were plainly visible to any member of the public who drove down the roads bordering the farm. Thus, the defendants' reasonable expectation of privacy was not violated and the video was property admissible at trial.
We hope the defendants will appeal this ruling to the Supreme Court. The Court's recent decision requiring a warrant before agents can attach a GPS device to a suspect's car indicates the Supreme Court's heightened concerns about individuals' privacy rights.