In United States v. Harry, No. 23-7106, — F.4th –, 2025 WL 732085 (2d Cir. March 7, 2025), the Second Circuit holds, as a matter of first impression in this Circuit, that setting up a pole camera to continuously monitor a building for 50 days is not a “search” for purposes of the Fourth Amendment—meaning that the government does not need a warrant or probable cause to do it.
In Harry, DEA agents “affixed a video surveillance camera to a utility pole on a lot across the street from” the business where the defendant worked. “The camera was connected to the internet and fed footage to DEA investigators, who could remotely tilt, pan, and zoom the camera. The camera recorded 24 hours per day for approximately 50 days,” recording the company’s “exterior, the outdoor parking lot, and, occasionally, a slice of the interior of the business’s garage bay whenever the garage door was raised.”
The defendant was ultimately charged with federal drug offenses. He sought to suppress this pole camera evidence because the DEA installed the camera without a warrant.
The Circuit affirmed the lower court’s denial of suppression, holding it was not a “search” to “monitor the publicly visible exterior of a target’s business for a period of 50 days.” Based on the defendant’s limited efforts to conceal what the pole camera monitored (the exterior of his business), the Circuit found the defendant evinced no subjective expectation of privacy in the area.
Further, individuals “generally do not have a legitimate expectation of privacy in open and accessible areas,” and police may generally observe “whatever can be seen from a place they are entitled to be.”
The Circuit emphasized that its decision was limited to the facts of this case, and that there may “be scenarios in which a person maintains an objectively reasonable expectation of privacy in aspects of her business” or the exterior of a home.
As part of its decision, the Circuit rejected the defendant’s argument that this pole camera monitoring was the sort of particularly invasive government surveillance that was tantamount to a search—distinguishing Kyllo v. United States (use of a thermal imaging device), United States v. Jones (affixing a GPS tracker to the defendant’s car), and Carpenter v. United States (collecting cell-site location information). While Jones seems analogous, here the Circuit found no “trespass” and, accordingly, no originalist hook for Fourth Amendment protection. The Circuit also distinguished Jones and Carpenter, since this sort of stationary camera trained on a location was less invasive than monitoring the location of a moving car or cell phone.
The Circuit dutifully lists these distinctions between a pole camera and the surveillance in Kyllo, Jones, and Carpenter, and the holding makes a kind of sense given the existing “reasonable expectation of privacy” framework for the Fourth Amendment. But Harry serves as a reminder of the inadequacy of that framework for meaningfully protecting individuals’ privacy rights in light of modern technological capabilities.
Harry also calls to mind Justice Gorsuch’s dissent in Carpenter, where he bemoaned the state of Fourth Amendment law, including the problem with judges pronouncing when, as a society, we would feel that we have a “reasonable” or “legitimate” privacy interest in something. One example: while the Supreme Court has ruled that we maintain no expectation of privacy in our garbage (meaning federal agents may rifle through it), he doubted that “most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager.”
Similarly, many people would probably find it alarming, or at least strange, if someone secretly set up a camera to continuously record and monitor their activities at their own business. But government agents can do this based on a judge’s opinion that other members of society don’t really expect privacy from this sort of intrusion.
For his part, Justice Gorsuch expresses interest in a “positive law” approach to the Fourth Amendment, which he sketches in his opinion. Whether or not this is a good alternative, his opinion highlights the difficulties of coherently applying our current Fourth Amendment doctrine in modern society.
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