by Jack Derewicz*

Does the Supreme Court’s decision in Carpenter v. United States constrain the government’s warrantless use of pole cameras to surveil people it suspects are engaging in criminal activity? In this contribution, Jack Derewicz (’21) argues that the Carpenter opinion does not implicate this particular investigatory technique because pole cameras do not retroactively collect the type of information that, when aggregated, present the government with information it could not have otherwise obtained.

In its decision in Carpenter v. United States,2 the Supreme Court determined that the government’s warrantless inspection of cell site location information (“CSLI”) to track a person’s movements violated that person’s reasonable expectation of privacy.3 Cell site location information is unique, according to the Court, because “[m]apping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts.”4 Thus, “the time-stamped data provides an intimate view into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”5 The government’s use of CSLI provided it with information it would not have otherwise been able to obtain.6 Commentators have questioned the extent to which the Carpenter decision’s rationale will permeate Fourth Amendment doctrine when applied to other factual contexts.7

One of these other factual contexts is the government’s use of pole cameras. A pole camera is a small video recording device that the government places on top of a television pole, often on a residential street.8 With the pole camera, the government can record the happenings around a person’s place of residence. Before recent doctrinal developments, courts were not in unison on the issue of whether the government’s use of a pole camera was a “search” under the Fourth Amendment9 and, thus, whether the government was required to get a warrant prior to placing a camera atop the pole and viewing its recordings.10 Recent Supreme Court doctrine—particularly the Carpenter decision—further complicates the dispute. If a pole camera is conceptualized as providing the government with the type of aggregate, widespread, and categorical data that concerned the Court in Carpenter, then the warrantless use of a pole camera may infringe upon a person’s Fourth Amendment protection from unreasonable searches.11

In this article, I argue that, despite the Court’s recent decisions, the use of a pole camera does not constitute a search because the type of information revealed is not as comprehensive as that which was at stake in Carpenter.12 More specifically, in aggregate form, it is the type of data that the government would otherwise have been able to obtain without the use of the technology. Further, while CSLI can be obtained retroactively, giving officers information from before they ever identified the suspect, pole camera information is temporally limited.

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The Fourth Amendment protects persons from unreasonable searches and seizures.13 In Katz v. United States, the Supreme Court determined that the Fourth Amendment “protects people, not places,”14 ushering in the reasonable expectation of privacy test, under which a search occurs when the government infringes upon a subjective expectation of privacy that society is prepared to acknowledge as being objectively reasonable.15 A reasonable expectation of privacy is present when the area or object of the alleged search contains intimate information16 and is not accessible to the general public.17

Defendants often challenge government investigatory actions, like the use of pole cameras, and the evidence obtained from said actions, via motions to suppress.18 Traditionally, courts held that the warrantless use of pole cameras was constitutional for two reasons. First, many courts found that, because the camera only recorded areas that were otherwise open to public viewing, its use did not violate a reasonable expectation of privacy.19 Other courts found that the use of a pole camera did not infringe upon an objective expectation of privacy because it did not implicate sufficiently intimate information.20 On the other hand, in a select number of cases, courts did find that the use of a pole camera to record the happenings outside of a home violated the Fourth Amendment.21 Notably, in these cases, courts often conducted fact-intensive examinations into the duration22 and intrusiveness23 of the search, as well as the complexity of the technology used.24

The Court’s decision in Carpenter may have upended the doctrinal framework within which courts examine the issue.25 In Carpenter, police officers arrested four men they suspected were involved in a string of robberies of electronic stores in Detroit.26 One of the arrestees disclosed to the police that Carpenter had also been involved.27 In order to determine whether Carpenter was in the general area of these burglaries at the times they occurred, the government, through the Stored Communications Act,28 obtained access to his cell-site location information (CSLI).29 The Supreme Court determined that obtaining access to this information, which mapped Carpenter’s movements over 127 days,30 without a warrant, violated the Fourth Amendment.31 Chief Justice Roberts, writing for the majority, concluded that the third-party doctrine, established in Smith v. Maryland32 and United States v. Miller,33 which dictates that people do not have a reasonable expectation of privacy in information they reveal to a third party,34 should not be “extend[ed] . . . to cover these novel circumstances . . . [g]iven the unique nature of cell phone location records . . . .”35 Next, the Court determined that precedent that had considered whether persons have Fourth Amendment protection in their public movements36 was not binding because CSLI information, when aggregated, gave the government access to information that it otherwise would not have had without the use of the technology.37 Applied to the use of pole cameras, if the recordings grant access to information that, when aggregated, provide information that would otherwise not be available without the use of the camera, then it, too, would violate the Fourth Amendment.

Because the Supreme Court decided Carpenter in 2018, few lower courts have had the opportunity to inspect the use of pole cameras within this relatively novel doctrinal context. Among the courts that have recently examined the use of pole cameras, some have recognized the effect of Carpenter on their analysis,38 while others have not.39

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While the Supreme Court’s decision in Carpenter certainly has and will continue to affect search doctrine in numerous ways,40 it does not inhibit the government’s use of pole cameras. This particular investigatory technique does not provide the government with retroactive access to sweeping, widespread information that it can aggregate to obtain an intimate view into a person’s life.

First, the Court in Carpenter explicitly limited the holding’s application to CSLI when it stated, “our decision today is a narrow one. We do not express a view on matters not before us . . . .”41 Carpenter involved CSLI that could specifically track a person’s location at all times during the day,42 whereas the use of a pole camera only records a person when they are within frame. In fact, the Court specifically noted that its decision in Carpenter does not “call into question conventional surveillance techniques and tools, such as security cameras.”43 This statement is a clear directive to lower courts. A pole camera is more similar to a security camera than it is to CSLI data because it observes one location rather than tracking a person’s movements across space and time.

Second, the Court in Carpenter was concerned with CSLI because it was “detailed, encyclopedic, and effortlessly compiled,”44 and it “provided an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”45 Notably, the Court did not hold that the use of CSLI always constitutes a search, but instead held that the use of CLSI for a significant duration was a search because the government could aggregate that amount of data to glean information that would not have otherwise been available to it.46 CSLI runs the gamut, as the Court noted, invading almost every aspect of a person’s life,47 and it can be obtained retroactively, going back for months if not years.48 It is the duration of the CSLI tracking that provides such an expansive view into one’s personal life. CSLI information on only one day may not provide such an aggregate inspection, and the Court purposely left open the question of whether the warrantless collection of CSLI data is constitutional if the government obtains data that covers a fewer number of days.49

As compared to CSLI data, recordings from a pole camera do not provide such an aggregate view of a person’s personal life. While it is clear that personal information can be gleaned from recordings from a pole camera, it is not the expansive revelation of personal information that is at stake with respect to CSLI. For example, CSLI can reveal a person’s political and religious affiliations, personal relationships, place of employment, and more.50 On the other hand, a pole camera is unlikely to reveal all of this information, regardless of how long the camera is left on the pole. Thus, while duration may be a concern with respect to CSLI, it is not a concern with respect to pole cameras. Various courts have agreed, determining that the use of pole cameras that were installed for months at a time did not constitute a search, and thus did not require a warrant, for that very reason.51

Finally, in Carpenter, the Court noted the importance of the fact that the government could access historical information via CSLI.52 The retroactive nature of the information is crucial because the government is not temporally limited in the same way that it is when only using traditional surveillance techniques. Typically, the government must know the identity of the suspect before it can begin surveilling. However, that limitation is not present in CSLI; just as the police did in Carpenter, the government can subpoena a cell phone carrier to obtain information about a person that pre-dates the identification of the suspect. The lack of a temporal limitation to CSLI greatly expands the reach of government surveillance. Pole cameras, like other traditional investigatory techniques, cannot obtain retroactive information.

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The Supreme Court’s decision in Carpenter v. United States could have ramifications across criminal procedure law. To a large extent, courts have not begun to grapple with its impact. However, after an examination of the Carpenter opinion’s justifications, the relevant case law, and the effects of the government’s use of pole cameras, it is clear that Carpenter does not implicate this particular investigatory technique. The information gleaned from the use of a pole camera cannot be aggregated to provide information that would not otherwise be available to the government, and the information that the government can gather from a pole camera is temporally constrained. Accordingly, courts should continue to engage in their traditional, fact-specific analysis of pole cameras, inspecting the duration and the sensitivity of the information at stake to determine whether the use of the camera violated a person’s reasonable expectation of privacy.

* Jack Derewicz is a J.D. Candidate (2021) at New York University School of Law. This piece is a commentary on the 2020 Problem at the Prince Moot Court Competition held in Brooklyn, New York. The problem dealt with the interaction between the police’s use of pole cameras  and the Supreme Court’s recent decision Carpenter v. United States. The views expressed in this article do not represent those of the author. Rather, this article is a distillation of one side of an argument assigned to the author’s team at the Prince Moot Court Competition.

2. Carpenter v. United States, 138 S. Ct. 2206 (2018).

3. Id. at 2223 (“The Government’s acquisition of cell-site records here was a search under that Amendment.”).

4. Id. at 2217.

5. Id. (quoting United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring)).

6. Id. at 2218 (“[W]hen the government tracks the location of a cell phone it achieves near perfect surveillance . . . .”).

7. See, e.g., Amy Howe, Opinion Analysis: Courts Hold That Police Will Generally Need a Warrant for Sustained Cellphone Location Information, SCOTUSblog (June 22, 2018), accessed at https://www.scotusblog.com/2018/06/opinion-analysis-court-holds-that-police-will-generally-need-a-warrant-for-cellphone-location-information (“Today’s ruling gives significant Fourth Amendment protection to cell-site location information, but it sheds less light on whether the Fourth Amendment protects other types of information in the digital era. To the extent that they haven’t already, those issues are likely to surface in the lower courts soon . . . .”).

8. See, e.g.,  United States v. Moore-Bush, 963 F.3d 29, 32–33 (1st Cir. 2020) (describing a “camera [placed] towards the top of the public utility pole across the public street from the unfenced-in house” as a “pole camera”).

9. Compare United States v. Houston, 813 F.3d 282 (6th Cir. 2016) (holding that a pole camera recording the outside of a trailer home did not violate a reasonable expectation of privacy), with Shafer v. City of Boulder, 896 F. Supp. 2d 915 (D. Nev. 2012) (finding a violation of defendant’s reasonable expectation of privacy when cameras recorded his backyard and residence).

10. See Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.”).

11. U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”).

12. Carpenter, 138 S. Ct. at 2218 (“A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, and political headquarters, and other potentially revealing locales.”).

13. U.S. Const. amend. IV.

14. Katz v. United States, 389 U.S. 347, 351 (1967).

15. Id. at 360–61 (Harlan, J., concurring) (arguing that the government’s placement of a recording device on the outside of a public telephone booth to record conversations violated Katz’s “reasonable expectation of privacy”); see also Smith v. Maryland, 442 U.S. 735, 740 (1979) (noting that the proper analytical framework consists of two questions: whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” and then whether the expectation of privacy is “one that society is prepared to recognize as reasonable” (internal citations omitted)).

16. See, e.g., Oliver v. United States, 466 U.S. 170, 179 (1984) (explaining that one does not have an expectation of privacy in an area unless it implicates “intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance”); see also United States v. Vankesteren, 553 F.3d 286, 290 (4th Cir. 2009) (holding that a camera recording a bird-trap in defendant’s field did not violate a reasonable expectation of privacy since “the land was being used for farming and not intimate activities”).

17. See Kyllo v. United States, 533 U.S. 27 (2001) (the use of an infrared camera to see the happenings within a place of residence violated a person’s reasonable expectation of privacy); United States v. Knotts, 460 U.S. 276, 281–82 (1983) (finding no reasonable expectation of privacy in movements exposed by a GPS tracker since defendant “voluntarily conveyed” his travel to the public); California v. Ciraolo, 476 U.S. 207, 213 (1986) (holding that the use of an airplane to aerially observe a person’s backyard did not violate the Fourth Amendment because “[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.”).

18. Fed. R. Crim. P. 41(h) (“A defendant may move to suppress evidence in the court where the trial will occur . . . .”).

19. See United States v. Bucci, 582 F.3d 108, 116–17 (1st Cir. 2009) (holding that a pole camera that recorded video from outside of a home did not violate a reasonable expectation of privacy since “[a]n individual does not have an expectation of privacy in items or places he exposes to the public . . . .” (internal citations omitted)); United States v. Anderson-Bagshaw, 509 F. App’x 396, 404 (6th Cir. 2012) (holding that a warrantless surveillance of a person’s backyard was not a violation under the Fourth Amendment since curtilage does not preclude observation “from a public vantage where [the officers] have a right to be and which renders the activities clearly visible” (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986))).

20. See United States v. Houston, 813 F.3d 282 (6th Cir. 2016) (holding that a pole camera recording the outside of a trailer does not constitute a search under the Fourth Amendment); United States v. Jackson, 213 F.3d 1269, 1281 (10th Cir. 2000) (holding that the use of pole cameras was not a search since the camera was “capable of observing only what any passerby would have easily been able to observe”), vacated on other grounds, 531 U.S. 1033 (2000); United States v. Vankesteren, 553 F.3d 286, 290 (4th Cir. 2009) (“[T]he land was being used for farming and not intimate activities . . . .”).

21. United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) (concluding the use of a pole camera to record a person’s backyard violated the person’s reasonable expectation of privacy); Shafer v. City of Boulder, 896 F. Supp. 2d 915 (D. Nev. 2012) (finding a violation of defendant’s reasonable expectation of privacy in his home when the police used pole cameras to record defendant’s residence and back yard).

22. See Shafer, 896 F. Supp. 2d at 932 (stressing that petitioner “was under constant video surveillance for fifty-six days”).

23. See Cuevas-Sanchez, 821 F.2d at 251 (5th Cir. 1987) (“This type of surveillance provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the spectre [sic] of the Orwellian state.”).

24. See, e.g., United States v. Moore-Bush, 381 F. Supp. 3d 139, 149 (D. Mass. 2019) (stressing that the pole camera downloaded the recordings in “a digitally searchable form”), rev’d, 963 F.3d 29 (1st Cir. 2020); Shafer, 896 F. Supp. 2d at 932 (D. Nev. 2012) (noting that the government used “long-range, infrared, heavy-duty, waterproof, daytime/nighttime cameras . . . .”).

25. Carpenter v. United States, 138 S. Ct. 2206 (2018).

26. Id. at 2212.

27. Id.

28. 18 U.S.C. § 2703.

29. Carpenter, 138 S. Ct. at 2212.

30. Id. at 2217.

31. Id. at 2223 (“The Government’s acquisition of cell-site records here was a search under that Amendment.”).

32. Smith v. Maryland, 442 U.S. 735 (1979) (holding that a person did not have a reasonable expectation of privacy in numbers dialed on his personal telephone because the telephone company collected and recorded the numbers he called).

33. United States v. Miller, 425 U.S. 435 (1976) (holding that a person did not have a reasonable expectation of privacy in his bank records which were accessible by anyone who worked at the bank).

34. Id. at 443 (“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”).

35. Carpenter, 138 S. Ct. at 2217.

36. See, e.g., United States v. Knotts, 460 U.S. 276, 281 (1983) (“[A] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”).

37. Carpenter, 138 S. Ct. at 2218 (“[T]he time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’” (citing United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring))).

38. See United States v. Moore-Bush, 963 F.3d 29, 321 (1st Cir. 2020) (explaining that “[t]his appeal by the prosecution raises the question of whether the Supreme Court’s opinion in Carpenter” affects a challenge to the admission of evidence the government obtained via the use of a pole camer.).

39. See United States v. Stefanyuk, No. 4:17-CR-40042 (KES), 2018 WL 3235569 (D.S.D. June 14, 2018) (no mention of Carpenter).

40. See Jennifer Lynch, Courts Grapple with a Sea Change in Fourth Amendment Law After Carpenter: Year in Review 2019, Electronic Frontier Foundation (Dec. 29, 2019), accessed at https://www.eff.org/deeplinks/2019/12/courts-grapple-sea-change-fourth-amendment-law-after-carpenter-v-us-year-review.

41. Carpenter v. United States, 138 S. Ct. 2206, 2220 (2018).

42. Id. at 2218 (“A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, and political headquarters, and other potentially revealing locales.”).

43. Id. at 2220.

44. Id. at 2216.

45. Id. at 2217 (quoting United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring)).

46. Id. at 2217 (“Prior to the digital age, law enforcement might have pursued a suspect for a brief stretch, but doing so ‘for any extended period of time was difficult and costly and therefore rarely undertaken.’” (quoting Jones, 565 25 U.S. at 429 (Alito, J., concurring))).

47. Id. at 2218 (“[T]he time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’” (citing United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring))).

48. Id. at 2211 (“This case presents the question whether the government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.”) (emphasis added).

49. Id. at 2217 n.3 (“[W]e need not decide whether there is a limited period for which the government may obtain an individual’s historic CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be.”).

50. Id. at 2218 (“[T]he time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’” (citing United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring))).

51. See United States v. Wymer, 654 F. App’x 735, 744 (6th Cir. 2016) (“The length of the surveillance d[oes] not render the use of the pole camera unconstitutional.”) (quoting United States v. Houston, 813 F.3d 282, 288 (6th Cir. 2016)); United States v. Bucci, 582 F.3d 108, 116-17 (6th Cir. 2009) (the use of a pole camera for eight months did not constitute a search); United States v. Kubasiak, No. 18-CR-120-p, 2018 WL 4846761 at *6-*7 (E.D. Wis. Oct. 5, 2018) (The use of a pole camera, “[e]ven for twenty-four hours a day over several months, . . . did not present the kind of aggregate view of intimate details of the defendant’s every moment that concerned . . . the majority in Carpenter.”).

52. Carpenter, 138 S. Ct. at 2211 (“This case presents the question whether the government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.”) (emphasis added); id. at 2218 (“With just the click of a button, the Government can access each carrier’s deep repository of historical location information at practically no expense.”) (emphasis added).