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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-
U NITED S TATES OF A MERICA, Plaintiff-Appellee , v.
TRAVIS TUGGLE, Defendant-Appellant.
Appeal from the United States District Court for the Central District of Illinois. No. 16-cr-20070 — James E. Shadid , Judge.
A RGUED M AY 12, 2021 — DECIDED J ULY 14, 2021
Before F LAUM , HAMILTON , and BRENNAN , Circuit Judges. F LAUM , 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 in- stalled 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 infor- mation about each vehicle and its passengers, for example, re- cording 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 secu- rity officers will record snippets of face-to-face or phone con- versations. 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 Ameri- cans’ 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. None- theless, we are steadily approaching a future with a constella- tion of ubiquitous public and private cameras accessible to the government that catalog the movements and activities of all Americans. Foreseeable expansion in technological capabili- ties and the pervasive use of ever-watching surveillance will reduce Americans’ anonymity, transforming what once seemed like science fiction into fact. Constitutionally and stat- utorily mandated 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 develop- ments.
The Framers of the Constitution sought “to place obstacles in the way of a too permeating police surveillance.” United
increasingly digital world, for example, Americans largely ac- cept 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 expec- tations 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 up- shot: the Katz test as currently interpreted may eventually af- ford the government ever-wider latitude over the most so- phisticated, intrusive, and all-knowing technologies with lessening constitutional constraints.
These observations bring us to the instant case, a harbin- ger of the challenge to apply Fourth Amendment protections to accommodate forthcoming technological changes. Suspect- ing defendant Travis Tuggle’s involvement in drug traffick- ing, the government surveilled him for eighteen months with- out 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 Tug- gle, 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 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 di- vergent answers reflect the complexity and uncertainty of the prolonged use of this technology and others like it. Neverthe- less, 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 with- out other statutory or jurisprudential means to cabin the gov- ernment’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 tech- nology 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 conspir- acy 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 mon- itor Tuggle’s residence.
The government installed three cameras on public prop- erty that viewed Tuggle’s home. Agents mounted two cam- eras 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 co- conspirator and codefendant, Joshua Vaultonburg.
Together, the three cameras captured nearly eighteen months of footage by recording Tuggle’s property between
corroborated these activities. Further evidencing a drug oper- ation, the recordings showed Tuggle carrying items to Vaul- tonburg’s shed across the street. All told, the investigating of- ficers determined that Tuggle’s conspiracy distributed over twenty kilograms of highly pure methamphetamine.
Relying heavily on the video evidence, the officers secured and executed search warrants on several locations, including Tuggle’s house. A grand jury subsequently indicted him on two counts: (1) a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) for conspiring to distribute, and possess with intent to distribute, at least 50 grams of methamphetamine and at least 500 grams of a mixture containing methamphetamine, and (2) a violation of 21 U.S.C. § 856(a)(1) for maintaining a drug-involved premises.
Before trial, Tuggle moved to suppress the evidence ob- tained from the pole cameras, arguing that the use of the cam- eras constituted a warrantless search in violation of the Fourth Amendment. The district court denied the motion in a written opinion explaining its view that the camera usage did not constitute a search. Thereafter, Tuggle twice moved for the district court to reconsider, but the court denied both mo- tions on grounds that they raised no novel arguments. The day before trial, Tuggle entered a conditional guilty plea, pleading guilty to both counts but reserving his right to ap- peal the court’s denials of his motions to suppress. The district court then sentenced him to 360 months’ imprisonment on Count 1 and a concurrent 240 months’ imprisonment on Count 2.
This timely appeal followed.
II. Discussion
The issue before us on appeal is whether the district court correctly denied Tuggle’s motion to suppress. That issue calls for a “dual standard of review” under which “we review legal conclusions de novo but findings of fact for clear error.” United States v. Edgeworth , 889 F.3d 350, 353 (7th Cir. 2018) (ci- tation omitted).
The Fourth Amendment provides, in part, for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “Warrantless searches ‘are per se unreason- able under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’” United States v. Edwards , 769 F.3d 509, 513 (7th Cir. 2014) (quoting Arizona v. Gant , 556 U.S. 332, 338 (2009)). The gov- ernment did not seek a warrant for the cameras here, and no exception to the warrant requirement applies, so the diposi- tive question is whether a Fourth Amendment search oc- curred.
The Supreme Court has developed two distinct paths to identify a search: “[a] search occurs either when the govern- ment physically intrudes without consent upon ‘a constitu- tionally protected area in order to obtain information,’ or ‘when an expectation of privacy that society is prepared to consider reasonable is infringed.’” United States v. Thompson , 811 F.3d 944, 948 (7th Cir. 2016) (some internal quotation marks and citations omitted) (first quoting United States v. Jones , 565 U.S. 400, 407 (2012); and then quoting United States v. Karo , 468 U.S. 705, 712 (1984)). The first path, a physical in- trusion, is not relevant because the parties agree that the
months” amounted to a Fourth Amendment violation. We consider each argument in turn.
A. The Isolated Use of Cameras Tuggle first frames the issue as “whether the use of war- rantless pole camera surveillance of Mr. Tuggle’s private res- idence violated his Fourth Amendment rights?” For present purposes, we will consider only whether the isolated use of pole cameras—by which we mean the use of pole cameras ir- respective of the length of that use—constitutes a Fourth Amendment search. In other words, we ask: Did the Fourth Amendment preclude law enforcement officers from the iso- lated use of pole cameras on public property without a war- rant to observe Tuggle’s private home?
Framed as such, the answer is clearly no. At the outset, we note that Tuggle likely has not, at Katz ’s first prong, “exhib- ited an actual (subjective) expectation of privacy” in the go- ings-on outside of his home. Katz , 389 U.S. at 361 (Harlan, J., concurring). Nothing in the record suggests that Tuggle erected any fences or otherwise tried to shield his yard or driveway from public view, which might have signaled he feared the wandering eye or camera lens on the street. We therefore do not confront the more challenging situation in which the government intentionally places cameras to see over a fence to observe a private residence in a manner unavailable to a ground-level passerby. See generally United States v. Cue- vas-Sanchez , 821 F.2d 248, 251 (5th Cir. 1987) (concluding that defendant “manifested the subjective expectation of privacy in his backyard” because “he erected fences around [it], screening the activity within from views of casual observers,” and “the area monitored by the camera fell within the curti- lage of his home, an area protected by traditional fourth
amendment analysis”). Nevertheless, courts have not uni- formly applied the subjective prong of the Katz test, and some legal scholars have called its significance in resolving cases into question. See generally Orin S. Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations , 82 U. Chi. L. Rev. 113, 113 (2015) (arguing that “the majority of judicial opinions applying Katz do not even mention the subjective-expecta- tions test; opinions that mention the test usually do not apply it; and even when courts apply it, the test makes no difference to the results”). Thus, we primarily focus our attention on Katz ’s objective inquiry.
As to that objective prong—those privacy expectations so- ciety is willing to accept as reasonable—“[t]he expectation of privacy does not extend to ‘[w]hat a person knowingly ex- poses to the public, even in his own home or office.’” Thomp- son , 811 F.3d at 949 (quoting Katz , 389 U.S. at 351). The Su- preme Court has made clear that “[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.” Ciraolo , 476 U.S. at 213; see also Kyllo v. United States , 533 U.S. 27, 32 (2001) (“[V]isual ob- servation is no ‘search’ at all.”); California v. Greenwood , 486 U.S. 35, 41 (1988) (“[P]olice cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.”). We have also observed that home dwellers do not generally enjoy a “reasonable expectation of privacy in [their] driveway[s].” See United States v. Evans , 27 F.3d 1219, 1228–29 (7th Cir. 1994) (collecting cases); see also United States v. French , 291 F.3d 945, 955 (7th Cir. 2002) (holding defendant had “no reasonable ex- pectation of privacy in the driveway and gravel walkways” leading to his home).
a residence. The Supreme Court held the use of the device to be an unlawful search in violation of the Fourth Amendment in Kyllo v. United States. 533 U.S. at 40. While the thermal im- aging device did not physically intrude on the defendant’s property, the Court expressed concern about “leav[ing] the homeowner at the mercy of advancing technology.” Id. at 35. The Court therefore held that governmental use of “a device that is not in general public use, to explore details of the home that would previously have been unknowable without phys- ical intrusion,” constitutes a Fourth Amendment search “and is presumptively unreasonable without a warrant.” Id. at 40.
Despite the Kyllo standard, the Supreme Court has rou- tinely approved of law enforcement officers’ use of cameras to aid investigations. In Dow Chemical Co. v. United States , 476 U.S. 227 (1986), the Supreme Court held “that the taking of aerial photographs of [a 2,000-acre] industrial plant com- plex from navigable airspace is not a search prohibited by the Fourth Amendment.” Id. at 239. The Court acknowledged that “the technology of photography has changed in this century , ” id. at 231, and said:
It may well be … that surveillance of private property by using highly sophisticated surveil- lance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional con- cerns. Although they undoubtedly give [the government] more detailed information than naked-eye views, they remain limited to an out- line of the facility’s buildings and equipment.
Id. at 238. To that end, the Court noted that “[t]he mere fact that human vision is enhanced somewhat, at least to the de- gree here, does not give rise to constitutional problems” be- cause the aerial photography cameras did not raise the “far more serious questions” presented by a device that could “penetrate walls or windows so as to hear and record confi- dential discussions.” Id. at 238–39.
On the same day it issued Dow Chemical , the Supreme Court held in California v. Ciraolo that law enforcement did not violate the Fourth Amendment when it observed and photo- graphed the defendant’s marijuana plants while flying 1, feet overhead in a private plane. 476 U.S. at 209–10. The Court explained that although the defendant may have demon- strated a subjective expectation of privacy by erecting fences, society was not prepared to accept that expectation as reason- able because the government surveilled “within public navi- gable airspace … in a physically nonintrusive manner.” Id. at
- In other words, “[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” Id. at 213–14. The Court did not even consider the impact of the camera—thus assuming it was en- tirely permissible for officers to use cameras in that place in which they were lawfully entitled to be.
Despite the prevalence of cameras in today’s society, we have not identified in our own precedent any cases in which we squarely evaluated the constitutionality of the govern- ment’s use of remote cameras, pole cameras, or the like, to aid law enforcement surveillance. We have, however, acknowl- edged the commonplace role cameras have in our society. Cf. United States v. Paxton , 848 F.3d 803, 812 (7th Cir. 2017) (“[W]e are fast approaching a day when police interactions with
ground-level video footage of an unobstructed home from a public vantage point is not a search.
While the video cameras in this case “undoubtedly g[a]ve [the government] more detailed information than naked-eye views,” they did not do so to a degree that “give[s] rise to con- stitutional problems.” See Dow Chem. , 476 U.S. at 238. The gov- ernment only used the cameras to identify who visited Tug- gle’s house and what they carried, all things that a theoretical officer could have observed without a camera. Cf. Thompson , 811 F.3d at 950 (“The video cameras in this case captured nothing more than what the informant could see with his na- ked eye.”). That the government could replay the footage and remotely control the camera does not affect our analysis be- cause these features are a far cry from the “highly sophisti- cated surveillance equipment not generally available to the public” that animated the Dow Chemical decision. 476 U.S. at
- The cameras did not “penetrate walls or windows so as to hear and record confidential” information, id. at 239, nor did they “explore details of the home that would previously have been unknowable without physical intrusion,” Kyllo , 553 U.S. at 40.
In sum, the government used a commonplace technology, located where officers were lawfully entitled to be, and cap- tured events observable to any ordinary passerby. The gov- ernment did not invade an expectation of privacy that society would be prepared to accept as reasonable. Accordingly, the isolated use of pole cameras here did not constitute a Fourth Amendment search.
B. The Prolonged, Round-the-Clock Use of Cameras The more challenging question is Tuggle’s second theory of a Fourth Amendment violation: that the prolonged and un- interrupted use of those cameras constituted a search. Tuggle characterizes this theory in two ways. First, he argues more generally that the “long-term use of the pole cameras over an extended period of approximately eighteen months violates the Fourth Amendment.” Second, he asserts that “[a]pplying the mosaic theory, the use of warrantless pole cameras con- tinuously for over [eighteen] months is unconstitutional un- der the Fourth Amendment.” While framed differently, both Tuggle’s theories functionally ask whether the mosaic theory supports finding a Fourth Amendment search here. To an- swer that question, we will begin by explaining the mosaic theory and noting that while the theory has gained some ju- dicial traction the Supreme Court has yet to affirmatively re- quire lower courts to apply it. Then, we will outline how other courts have disagreed over whether prolonged pole camera surveillance constitutes a Fourth Amendment search. Draw- ing on those discussions—and noting our reservations—we will finally address why the prolonged use of pole cameras here did not constitute a Fourth Amendment search.
1. The Mosaic Theory Generally In its simplest form, the mosaic theory attempts to capture the idea that the “government can learn more from a given slice of information if it can put that information in the context of a broader pattern, a mosaic.” Matthew B. Kugler & Lior Ja- cob Strahilevitz, Actual Expectations of Privacy, Fourth Amend- ment Doctrine, and the Mosaic Theory , 2015 Sup. Ct. Rev. 205, 205 (2015). Thus, it “holds that, when it comes to people’s rea- sonable expectations of privacy, the whole is greater than the
the market or returns home from work. It is an- other thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that per- son’s hitherto private routine.
Id. at 560. The D.C. Circuit continued:
Prolonged surveillance reveals types of infor- mation not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any sin- gle visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of an- other’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpa- tient receiving medical treatment, an associate of particular individuals or political groups— and not just one such fact about a person, but all such facts.
Id. at 562 (footnote omitted).
Reviewing the issue of GPS monitoring under a different name, United States v. Jones , a majority of the Supreme Court affirmed Maynard on a narrow “property-based” theory, see 565 U.S. at 404–11, declining to rely on the mosaic theory, see id. at 412–13_._ Specifically, the Jones majority held that the gov- ernment had effected a physical trespass on private property by attaching the device on the defendant’s vehicle without a warrant. Id. at 404–07.
Concurring in the judgment, however, Justice Alito— joined by Justices Ginsburg, Breyer, and Kagan—endorsed the mosaic theory’s logic and rejected the majority’s stringent reliance on a trespass theory. In Justice Alito’s view, the GPS monitoring crossed a constitutional line, wherever that line might be:
[R]elatively short-term monitoring of a person’s movements on public streets accords with ex- pectations of privacy that our society has recog- nized as reasonable. But the use of longer term GPS monitoring in investigations of most of- fenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every sin- gle movement of an individual’s car for a very long period.
Id. at 430 (Alito, J., concurring) (citation omitted). As he wrote, “the line was surely crossed before the 4–week mark” of the government’s tracking of “every movement that [the defend- ant] made in the vehicle he was driving.” Id. While describing Justice Alito’s Jones concurrence as “cryptic,” scholars have
