By: Andrew Cammarano
The Fourth Amendment states that the people have the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” aimed to protect citizens from warrantless searches. Obviously, technology has changed drastically from the ratification of this amendment in 1789 with the introduction of telephones, computers, and even cars. These technological advancements have long presented challenges for judges and law enforcementfor interpreting the amendment.
In 2018, the United States Supreme Court was tasked with answering the question of how far the Fourth Amendment reaches into technological advancements. In Carpenter v. United States, the prosecution attempted to introduce cell-site location information, over the defendants’ motion to suppress, that was gathered using the defendants cellphone which placed him at the site of multiple robberies. The cell-site location information was obtained without a warrant and was admitted into trial as evidence. The Sixth Circuit affirmed the decision, and the Supreme Court was tasked with answering if this information constituted as an unreasonable search and seizure protected under the Fourth Amendment. The Court held that even though cell phone companies have access to user’s cell-site location information’s, prosecutors obtaining this information without a proper warrant is a violation of the Fourth Amendment, reversing the lower court’s decisions. Although the Supreme Court did not establish a test to determine what information that individuals disclosed to a third party would be protected under the Fourth Amendment, they did contribute several relevant factors for courts to consider, such as the revealing nature of the data, the amount of data collected, and the automatic nature of data disclosure. Playing a pivotal role in the interpretation of the Fourth Amendment in a data induced and driven world, the Carpenter court established protection over potentially intrusive technological inquiries into one’s life. However, Carpenter created a good-faith exception to this general protection. The good faith exception stipulates that evidence acquired in a good faith reliance on the validity of a statute, warrant, or other authorization will remain admissible, even in cases where the authorization was flawed.
Courts are now ladened with the burden of determining where to draw the line in the sand and hold what technology, or use of technology to obtain information, would constitute as a violation of the Fourth Amendment. In front of the Tenth Circuit sits United States v. Hay, a case that poses a threat to the Fourth Amendment protection of individuals that are the subject of a criminal investigation. In this case, federal agents positioned a video camera on a utility pole in front of Bruce Hay’s residence in Kansas, recording areas encompassing his porch, front yard, and driveway, commonly known in legal terms as the “curtilage.” These agents conducted surveillance on Mr. Hay for nearly ten weeks without obtaining a warrant. Throughout this duration, law enforcement personnel had the capability to monitor the camera’s live feed in real-time, or review it later, at their convenience, from their station. Additionally, they could remotely adjust the camera’s angle, enabling them to zoom in close enough to discern license plates and observe items being carried into or out of the house. Following a failed motion to suppress, Hay appealed to the Tenth Circuit and argued, in accordance with the rationale the court used in Carpenter, that because the camera obtained revealing and sensitive data of his family, it was a violation of his Fourth Amendment protection. Furthermore, even though his house is in view of a public road, protracted surveillance over weeks can reveal patterns in a person’s activity, personal associations, and depending on the zoom capabilities, even obtain personal medical or financial records.
The First Circuit recently issued an opinion addressing a very similar issue as Hay— federal agents procured a surveillance camera on a utility pole overlooking a suspect’s home, or curtilage, for investigation of a narcotics trafficking operationwithout a proper warrant. The First Circuit’s six judge en bancdecision was split, holding that although the evidence obtained in the eight-month long surveillance was admissible, a warrant should have been obtained for the instillation of the surveillance camera. In a concurring opinion, the court emphasized the need for the Supreme Court to rule on to what extent federal agents and law enforcement can extend to for searches of suspects or criminal defendants before they violate their Fourth Amendmentprotections.
Although there are protections for warrantless searches of a suspect or criminal defendants’ phone or computer, technology still creates a headache for judges and law enforcement that should be met with heightened security. With the intention behind the ratification of the Fourth Amendment being to protect the privacy interests of citizens, Justice Joseph Story said that the Fourth Amendment “seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property.” However, the enjoyment of this protectiononly comes with the enforcement by the courts. Allowing government agents to procure surveillance cameras on a suspect of criminal defendants’ home without a proper warrant not only flies in the face of the rational of the Fourth Amendment butpresents the possibility potential future over stepping by federal agents and law enforcement if they are not checked by appropriate judicial oversight.
Student Bio: Andrew Cammarano is a second-year law student at Suffolk University Law School. He is a staff writer on the Journal of High Technology Law and is the President of the Christian Legal Society. Andrew received a Bachelor of Arts in Economics from Wheaton College IL.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
