United States v. Tuggle - No. 20-2352, 2021 U.S. App. LEXIS 20841 (7th Cir. July 14, 2021)

Rule:

The U.S. Supreme Court has developed two distinct paths to identify a search: a search occurs either when the government physically intrudes without consent upon a constitutionally protected area in order to obtain information, or when an expectation of privacy that society is prepared to consider reasonable is infringed.

Facts:

Suspecting defendant Travis Tuggle's involvement in drug trafficking, the government surveilled him for eighteen months without a warrant. The officers installed three cameras on public property that captured the outside of Tuggle's home. Together, the three cameras captured nearly eighteen months of footage by recording Tuggle's property between 2014 and 2016. The cameras provided substantial video evidence that supported the government's eventual indictment of Tuggle (and others). The officers tallied over 100 instances of what they suspected were deliveries of methamphetamine to Tuggle's residence. Camera footage depicted individuals arriving at Tuggle's home, carrying various items inside, and leaving only with smaller versions of those items or sometimes nothing at all. After these alleged "drops," different individuals would soon arrive, enter the home, and purportedly pay for and pick up methamphetamine. Several witnesses corroborated these activities. Further evidencing a drug operation, the recordings showed Tuggle carrying items to Vaultonburg's shed across the street. All told, the investigating officers 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 obtained from the pole cameras, arguing that the use of the cameras 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 motions 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 appeal 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.

Issue:

 Does the prolonged and uninterrupted use of those cameras constitute a search?

Answer:

No.

Conclusion:

The thrust of Tuggle's argument—rooted in the mosaic theory—is that the government's use of the three pole cameras unconstitutionally "captured the whole of Mr. Tuggle's movements." Even if the court accepted the mosaic theory, however current Supreme Court precedent does not support Tuggle's argument. Of course, the stationary cameras placed around Tuggle's house captured an important sliver of Tuggle's life, but they did not paint the type of exhaustive picture of his every movement that the Supreme Court has frowned upon. If the facts and concurrences of Jones and Carpenter set the benchmarks, then the surveillance in this case pales in comparison. In those cases, the justices expressed concerns about surveillance leading to "a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." Following this reasoning, many justices saw the GPS and CSLI technologies in Jones and Carpenter as capable of capturing the whole of the defendants' movements, therefore implicating the Fourth Amendment. The CSLI at issue in Carpenter even tracked the defendant's movement through not only public areas, but also private places, which the Court likened to "attach[ ing] an ankle monitor to the phone's user." Unlike those technologies, the cameras here exposed no details about where Tuggle traveled, what businesses he frequented, with whom he interacted in public, or whose homes he visited, among many other intimate details of his life. If anything, far from capturing the "whole of his physical movements," or his "public movements," the cameras only highlighted Tuggle's lack of movement, surveying only the time he spent at home and thus not illuminating what occurred when he moved from his home. Beyond the justices' "cryptic" embrace of the mosaic theory, the theory, in its inception, drew a distinction between the "passerby ... observ[ ing] or even ... follow[ing] someone during a single journey as he goes to the market or returns home from work" and the far more problematic "stranger [who] pick[s] 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 person's hitherto private routine." The pole cameras in this case likely lie somewhere between these extremes but more closely resemble the former. In one sense, the recordings painted a whole picture of the happenings outside Tuggle's front door by recording nonstop for eighteen months. In another important sense, however, the footage only depicted one small part of a much larger whole: Tuggle's life or the "whole of his physical movements." Given their immobile nature, the cameras could not make out an exhaustive record of Tuggle's "hitherto private routine," because much if not most of the relevant details occurred outside of the immediate area in front of Tuggle's home. By the logic of Riley and Carpenter, and the court’s recent observations in Hammond, the pole camera surveillance here did not run afoul of the Fourth Amendment because the government could not "travel back in time to retrace [Tuggle's] whereabouts," to say nothing of the thorny questions presented by a pre-existing network of government cameras. The government had to decide ex ante to collect the video footage by installing the cameras. The government did not tap into an expansive, pre-existing database of video footage of Tuggle's home akin to the Internet browsing history and extensive photos stored on cell phones considered in Riley, or the expansive CSLI in Carpenter. Until the Supreme Court or Congress instructs otherwise, the court will read Carpenter as limited to the unique features of the historical CSLI at issue there, as distinct from the real-time video footage here.