UNITED STATES OF AMERICA v. TRAVIS TUGGLE

Chicago, IL - Criminal defense lawyer represented defendant with 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 charges.

Between 2013 and 2016, several law enforcement agencies

investigated a large methamphetamine distribution conspiracy 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 monitor Tuggle's residence.

The government installed three cameras on public property that viewed Tuggle's home. Agents mounted two cameras 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 coconspirator and codefendant, Joshua Vaultonburg.

Together, the three cameras captured nearly eighteen

months of footage by recording Tuggle's property between

6 No. 20-2352

2014 and 2016. Law enforcement agents installed the first

camera in August 2014, the second in December 2015, and the

third in September 2015. The officers left the three cameras on

their respective poles until March 2016.

The cameras offered several advantages to the government's investigation of the drug conspiracy. While in use, the

cameras recorded around the clock. Rudimentary lighting

technology improved the quality of overnight footage, although the cameras did not have infrared or audio capabilities.

Law enforcement agents could also remotely zoom, pan, and

tilt the cameras and review the camera footage in real time,

though the footage captured only the exterior of Tuggle's

house. While officers frequently monitored the live feed during business hours, they could later review all the footage,

which the government stored at the Federal Bureau of Investigation office in Springfield, Illinois. More generally, the

cameras had the practical advantage of enabling the government to surveil Tuggle's home without conspicuously deploying agents to perform traditional visual or physical surveillance on the lightly traveled roads of Tuggle's residential

neighborhood.

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

No. 20-2352 7

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.

This timely appeal followed.

8 No. 20-2352

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) (citation 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 unreasonable 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 government did not seek a warrant for the cameras here, and no

exception to the warrant requirement applies, so the dipositive question is whether a Fourth Amendment search occurred.

The 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.'” 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 intrusion, is not relevant because the parties agree that the

No. 20-2352 9

government did not physically intrude on Tuggle's property

by attaching the cameras to the utility poles on public property.

We therefore focus on the second path to finding a search,

a government infringement upon an expectation of privacy

that society is prepared to consider reasonable. This path derives from Justice Harlan's famous concurrence in Katz, which

determined that "a person has a constitutionally protected

reasonable expectation of privacy” where that person "exhibit[s] an actual (subjective) expectation of privacy ... that

society is prepared to recognize as 'reasonable.'” 389 U.S. at

360–61 (Harlan, J., concurring); see also Smith v. Maryland,

442 U.S. 735, 740 (1979) (adopting Justice Harlan's Katz test).

The Supreme Court later clarified that "Katz posits a two-part

inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search?

Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986). As

"[t]he party seeking suppression,” Tuggle "bears the burden

of establishing that he had a reasonable expectation of privacy

in what was searched.” United States v. Scott, 731 F.3d 659, 663

(7th Cir. 2013).

On appeal, Tuggle presents two different, but related, arguments that the government's use of the three pole cameras

to monitor the activities in front of and outside his house constituted a search under the Fourth Amendment. First, he argues that the warrantless pole camera surveillance of his residence, irrespective of the length of that surveillance use, violated his Fourth Amendment rights. Second, he argues—relying on the mosaic theory—that the "long-term, warrantless

surveillance over a period of approximately eighteen

10 No. 20-2352

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 warrantless pole camera surveillance of Mr. Tuggle's private residence 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 irrespective 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 isolated use of pole cameras on public property without a warrant 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, "exhibited an actual (subjective) expectation of privacy” in the goings-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. Cuevas-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 curtilage of his home, an area protected by traditional fourth

No. 20-2352 11

amendment analysis”). Nevertheless, courts have not uniformly 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-expectations 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 society is willing to accept as reasonable—"[t]he expectation of

privacy does not extend to '[w]hat a person knowingly exposes to the public, even in his own home or office.'” Thompson, 811 F.3d at 949 (quoting Katz, 389 U.S. at 351). The Supreme 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 observation 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 expectation of privacy in the driveway and gravel walkways”

leading to his home).

12 No. 20-2352

In this case, Tuggle knowingly exposed the areas captured

by the three cameras. Namely, the outside of his house and

his driveway were plainly visible to the public. He therefore

did not have an expectation of privacy that society would be

willing to accept as reasonable in what happened in front of

his home. See Evans, 27 F.3d at 1228. The Fourth Amendment

accordingly did not require officers to "shield their eyes” (or

their cameras) when passing by Tuggle's "home on public

thoroughfares.” See Ciraolo, 476 U.S. at 213.

Tuggle's argument that the cameras transformed otherwise lawful visual surveillance into unconstitutional technological surveillance does not undermine our conclusion that

the isolated use of pole cameras here did not constitute a

search. Specifically, Tuggle argues that "[w]hile the 'fruits' of

the pole cameras could have been achieved by traditional visual or physical surveillance, the use of technology change[d]

the reasonableness of the expectation of privacy.” See Jones,

565 U.S. at 412 ("It may be that achieving the same result

through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy ....”).

To be sure, the Supreme Court has cautioned that the government's use of some technologies falls within the ambit of

the Fourth Amendment, but the Court has also affirmed that

"[n]othing in the Fourth Amendment prohibit[s] the police

from augmenting the sensory faculties bestowed upon them

at birth with such enhancement as science and technology afforded them in” certain instances. United States v. Knotts,

460 U.S. 276, 282 (1983).

The prototypical example of impermissible technology for

Fourth Amendment purposes is the government's use of a

thermal imaging device that detects relative heat levels within

No. 20-2352 13

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 imaging 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 physical intrusion,” constitutes a Fourth Amendment search "and

is presumptively unreasonable without a warrant.” Id. at 40.

Despite the Kyllo standard, the Supreme Court has routinely 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 complex 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 surveillance 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 concerns. Although they undoubtedly give [the

government] more detailed information than

naked-eye views, they remain limited to an outline of the facility's buildings and equipment.

14 No. 20-2352

Id. at 238. To that end, the Court noted that "[t]he mere fact

that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems” because 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 confidential 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 photographed the defendant's marijuana plants while flying 1,000

feet overhead in a private plane. 476 U.S. at 209–10. The Court

explained that although the defendant may have demonstrated a subjective expectation of privacy by erecting fences,

society was not prepared to accept that expectation as reasonable because the government surveilled "within public navigable airspace ... in a physically nonintrusive manner.” Id. at

213. 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 entirely 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 government's use of remote cameras, pole cameras, or the like, to aid

law enforcement surveillance. We have, however, acknowledged 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

No. 20-2352 15

civilians, including detainees, will be recorded from beginning to end, and for a variety of important ends.”). Thus, the

question of whether the isolated use of pole cameras, without

a warrant, on public property is constitutional is an issue of

first impression. Our sister circuits, including the Fourth and

the Tenth Circuits, that have considered governmental reliance on cameras to observe the exteriors of private homes

have held such uses to be constitutional.1

We likewise conclude that, under a straightforward application of Kyllo, the isolated use of pole cameras here did not

run afoul of Fourth Amendment protections. Today, cameras

are in "general public use.” Kyllo, 533 U.S. at 40. Now more

than ever, cameras are ubiquitous, found in the hands and

pockets of virtually all Americans, on the doorbells and entrances of homes, and on the walls and ceilings of businesses.

See Carpenter v. United States, 138 S. Ct. 2206, 2220 (2018) (declining to "call into question conventional surveillance techniques and tools, such as security cameras” (emphasis added));

Paxton, 848 F.3d at 812. To that point, if some thirty years ago

extensive aerial photography of a 2,000-acre industrial property, see Dow Chem., 476 U.S. at 229, or of marijuana plants otherwise concealed at ground level, see Ciraolo, 476 U.S. at 209,

did not qualify as Fourth Amendment searches, then certainly

1 See, e.g., United States v. Vankesteren, 553 F.3d 286, 287 (4th Cir. 2009)

(holding the government had not violated the defendant's Fourth Amendment rights through use of "a hidden, fixed-range, motion-activated video

camera placed in the [defendant's] open fields”); United States v. Jackson,

213 F.3d 1269, 1282 (10th Cir.) (holding that "evidence obtained from the

video cameras installed on the telephone poles and the recordings made

in the undercover FBI car were not introduced in violation of ... the Fourth

Amendment”), vacated on other grounds, 531 U.S. 1033 (2000).

16 No. 20-2352

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 constitutional problems.” See Dow Chem., 476 U.S. at 238. The government only used the cameras to identify who visited Tuggle'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 naked eye.”). That the government could replay the footage and

remotely control the camera does not affect our analysis because these features are a far cry from the "highly sophisticated surveillance equipment not generally available to the

public” that animated the Dow Chemical decision. 476 U.S. at

238. 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 captured events observable to any ordinary passerby. The government 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.

No. 20-2352 17

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 uninterrupted 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 continuously for over [eighteen] months is unconstitutional under the Fourth Amendment.” While framed differently, both

Tuggle's theories functionally ask whether the mosaic theory

supports finding a Fourth Amendment search here. To answer that question, we will begin by explaining the mosaic

theory and noting that while the theory has gained some judicial traction the Supreme Court has yet to affirmatively require 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. Drawing 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 Jacob Strahilevitz, Actual Expectations of Privacy, Fourth Amendment Doctrine, and the Mosaic Theory, 2015 Sup. Ct. Rev. 205,

205 (2015). Thus, it "holds that, when it comes to people's reasonable expectations of privacy, the whole is greater than the

18 No. 20-2352

sum of its parts.” Id.; see also David Gray & Danielle Keats Citron, A Shattered Looking Glass: The Pitfalls and Potential of the

Mosaic Theory of Fourth Amendment Privacy, 14 N.C. J. L. &

Tech. 381, 415 (2013) ("The mosaic theory .... recognizes that,

although a collection of dots is sometimes nothing more than

a collection of dots, some collections of dots, when assessed

holistically, are A Sunday Afternoon on the Island of La Grande

Jatte.”); Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311, 313 (2012). For present purposes,

we ground our discussion in these high-level articulations of

the mosaic theory although we note that justices, judges, and

academics vary in how they define and (even whether they

explicitly) refer to the theory and its principles.

Some judges and justices have relied on mosaic-like reasoning, but the Supreme Court has not bound lower courts to

apply the mosaic theory. The theory first emerged in Fourth

Amendment jurisprudence in United States v. Maynard,

615 F.3d 544 (D.C. Cir. 2010). The D.C. Circuit considered

whether the government's tracking of the defendant's car for

twenty-eight days by installing a global positioning system

("GPS”) device onto his car without a valid warrant constituted a search under the Fourth Amendment. Id. at 555. The

court invoked the "mosaic theory,” id. at 562, to determine

that the surveillance constituted a Fourth Amendment search:

[W]e hold the whole of a person's movements

over the course of a month is not actually exposed to the public because the likelihood a

stranger would observe all those movements is

not just remote, it is essentially nil. It is one thing

for a passerby to observe or even to follow

someone during a single journey as he goes to

No. 20-2352 19

the market or returns home from work. It is another 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 person's hitherto private routine.

Id. at 560. The D.C. Circuit continued:

Prolonged surveillance reveals types of information 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 single 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 another's travels can deduce whether he is a

weekly church goer, a heavy drinker, a regular

at the gym, an unfaithful husband, an outpatient 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).

20 No. 20-2352

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 government 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 expectations of privacy that our society has recognized as reasonable. But the use of longer term

GPS monitoring in investigations of most offenses 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 single 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 defendant] made in the vehicle he was driving.” Id. While describing

Justice Alito's Jones concurrence as "cryptic,” scholars have

No. 20-2352 21

read his opinion to "echo[] the D.C. Circuit's mosaic approach

in Maynard.” Kerr, The Mosaic Theory, supra, at 327.

Writing separately, Justice Sotomayor joined the majority

but similarly asserted that finding a search was not contingent

on a "trespassory intrusion[] on property.” Jones, 565 U.S. at

414 (Sotomayor, J., concurring). For Justice Sotomayor, the

unique investigatory capabilities of GPS monitoring—including its inexpensiveness, precision, and efficiency—posed serious concerns: "GPS monitoring generates 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.” Id. at 415. She explained:

I would take these attributes of GPS monitoring

into account when considering the existence of

a reasonable societal expectation of privacy in

the sum of one's public movements. I would ask

whether people reasonably expect that their

movements will be recorded and aggregated in

a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not

regard as dispositive the fact that the government might obtain the fruits of GPS monitoring

through lawful conventional surveillance techniques.

Id. at 416. As with Justice Alito's concurring opinion, scholars

argue that "[t]his passage clearly echoes the mosaic theory.”

Kerr, The Mosaic Theory, supra, at 328.

Drawing on the reasoning of these Jones concurrences,

some scholars have argued that Chief Justice Roberts's

22 No. 20-2352

unanimous opinion in Riley v. California, 573 U.S. 373 (2014),

further illustrates support for the mosaic theory. Riley held

that the police may not, without a warrant, search digital information on an arrestee's seized phone. Id. at 386. "Explaining why the arrestee's wallet could be searched but his cell

phone could not, Roberts offered an argument that is much

akin to the mosaic theory: .... [']The sum of an individual's

private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the

same cannot be said of a photograph or two of loved ones

tucked into a wallet.[']” See Kugler & Strahilevitz, supra, at 208

(quoting Riley, 573 U.S. at 394).

Most recently, a five-justice majority of the Supreme Court

held in Carpenter v. United States that the government's collection of a defendant's cell-site location information ("CSLI”)

(the time-stamped records a mobile phone makes every time

it connects to radio antennas known as cell sites) for a period

of 127 days amounted to a search under the Fourth Amendment. 138 S. Ct. at 2211–12, 2220. The Court determined that

this investigative practice violated the defendant's reasonable

expectation of privacy because it provided "an all-encompassing record of the holder's whereabouts,” uncovering "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.'” Id. at

2217 (quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)). The Court emphasized that "[a] majority of this Court

has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.” Id. (citing Justice Alito's and Justice Sotomayor's Jones

concurrences). Scholars describe the Carpenter majority as effectively "endors[ing] the mosaic theory of privacy.” Paul

No. 20-2352 23

Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech.

357, 373 (2019).

Despite garnering passing endorsement from some—if

not most—of the justices in the various opinions in Jones, Riley, and Carpenter, the theory has not received the Court's full

and affirmative adoption. At a minimum, the Supreme Court

has not yet required lower courts to apply it. Moreover, many

courts that have considered the theory have expressed disapproval,2 although not without exception.3 Additionally, the

2 See, e.g., United States v. Howard, 426 F. Supp. 3d 1247, 1255–56 (M.D.

Ala. 2019) (declining to apply the mosaic theory, in part, because "[t]he

idea that constitutionality could hinge on the duration of a 'search' has

puzzled a Supreme Court justice, several circuit judges, three district

courts, two state supreme courts, and one of the nation's leading Fourth

Amendment scholars” (footnotes omitted)), aff'd, No. 20-10877, 2021 WL

2155414 (11th Cir. May 27, 2021); State v. Muhammad, 451 P.3d 1060, 1073

(Wash. 2019) (rejecting government's argument invoking mosaic theory

and criticizing the theory as eluding a "workable analysis” because

"[r]ather than offering analysis based on a reasonable expectation of privacy, the mosaic theory instead requires a case-by-case, ad hoc determination of whether the length of time of a cell phone ping violated the

Fourth Amendment”); Tracey v. State, 152 So. 3d 504, 520 (Fla. 2014) (rejecting mosaic theory and "conclud[ing] that basing the determination as

to whether warrantless real time cell site location tracking violates the

Fourth Amendment on the length of the time the cell phone is monitored

is not a workable analysis”).

3 See, e.g., Commonwealth v. McCarthy, 142 N.E.3d 1090, 1102–03 (Mass.

2020) ("This aggregation principle or mosaic theory is wholly consistent

with the statement in Katz, 389 U.S. at 351, 88 S.Ct. 507, that '[w]hat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection,' because the whole of one's movements, even if they are

all individually public, are not knowingly exposed in the aggregate.” (alterations in original)); United States v. Diggs, 385 F. Supp. 3d 648, 652 (N.D.

24 No. 20-2352

mainstream academic view has urged courts to reject the theory.4 Accordingly, whether or not the theory has merit from a

theoretical or policy standpoint, Tuggle has not presented us

with binding caselaw indicating that we must apply the mosaic theory.

2. Prolonged Pole Camera Surveillance in Other

Courts

Having noted the reluctance of some courts to adopt the

mosaic theory, we now turn to the specific issue at hand: the

constitutionality of prolonged pole camera surveillance. Like

the isolated use of pole cameras, the government's prolonged

use of pole cameras to surveil someone's home presents an

issue of first impression for this Court. We therefore begin by

surveying the decisions of courts that have addressed longterm pole camera or video surveillance.

Ill. 2019) (relying on the "scope of the reasonable expectation of privacy

identified by the Jones concurrences and reaffirmed in Carpenter” to find a

search based on government's use of GPS data), reconsideration denied, No.

18 CR 185, 2020 WL 208826 (N.D. Ill. Jan. 14, 2020); State v. Jones, 2017 SD

59, ¶ 29, 903 N.W.2d 101, 110 ("The information gathered through the use

of targeted, long-term video surveillance will necessarily include a mosaic

of intimate details of the person's private life and associations.”).

4 See, e.g., Kerr, The Mosaic Theory, supra, at 344, 353 (detailing case

against mosaic theory in favor of a "sequential approach to Fourth

Amendment analysis” and concluding that "despite ... good intentions,

the mosaic theory represents a Pandora's Box that courts should leave

closed”); Kugler & Strahilevitz, supra, at 259–60 (illustrating, empirically,

"that very large majorities of the American public do not conceptualize

Fourth Amendment expectations of privacy in a manner that is congenial

to the 'mosaic theory'”). But see generally Gray & Citron, supra, at 411–28

(responding to prominent criticism of, and defending, mosaic theory).

No. 20-2352 25

Federal circuit, federal district, and state courts have splintered on how to treat police use of cameras on public property

(or, with consent, on private property) to record what happens outside one's home. That said, not all the cases we discuss specifically addressed the issue of the government using

cameras to paint a mosaic of a person's private life, nor did all

the cases deal specifically with pole cameras.

Our sister circuits have almost uniformly declined to find

Fourth Amendment searches in situations similar to the one

presented here. For example, in United States v. Houston,

813 F.3d 282 (6th Cir. 2016), the Sixth Circuit concluded the

government's use of pole cameras installed on public property and trained on the defendant's home for ten weeks did

not constitute a Fourth Amendment search. Id. at 287–88. The

Sixth Circuit reasoned the defendant did not have a "reasonable expectation of privacy in video footage recorded by a

camera that was located on top of a public utility pole and that

captured the same views enjoyed by passersby on public

roads.” Id. The Sixth Circuit emphasized that the agents "only

observed what [the defendant] made public to any person

traveling on the roads surrounding the farm” and that the

camera accomplished what agents "stationed ... round-theclock” could have observed. Id. at 288. Furthermore, they explicitly rejected that the duration of surveillance altered their

analysis "because the Fourth Amendment does not punish

law enforcement for using technology to more efficiently conduct their investigations.” Id.5

5 See also United States v. Trice, 966 F.3d 506, 516 (6th Cir. 2020) (reaffirming Houston post-Carpenter), cert. denied, 141 S. Ct. 1395 (2021). But see

United States v. Anderson-Bagshaw, 509 F. App'x 396, 405 (6th Cir.

26 No. 20-2352

In harmony with the Sixth Circuit, the First,6 Fourth,7 and

Tenth8 Circuits (and arguably the Ninth Circuit9) have similarly approved of governmental use of cameras, but we again

2012) ("[W]e confess some misgivings about a rule that would allow the

government to conduct long-term video surveillance of a person's backyard without a warrant. Few people, it seems, would expect that the government can constantly film their backyard for over three weeks using a

secret camera that can pan and zoom and stream a live image to government agents.”).

6 See, e.g., United States v. Bucci, 582 F.3d 108, 116–17 (1st Cir. 2009)

(holding defendant did not establish "a reasonable objective expectation

of privacy” that was invaded by eight-month long video surveillance of

his home from a utility pole). But see United States v. Moore-Bush, 982 F.3d

50, 50 (1st Cir. 2020) (mem.) (scheduling en banc hearing for March 23,

2021, to review panel decision affirming Bucci on stare decisis grounds).

7 The Fourth Circuit held that the government's use of "a hidden,

fixed-range, motion-activated video camera placed in the [defendant's]

open fields” did not violate the Fourth Amendment. Vankesteren, 553 F.3d

at 287, 288–91. This decision, however, did not turn on how long the government used the camera.

8 The Tenth Circuit held that "evidence obtained from the video cameras installed on the telephone poles and the recordings made in the undercover FBI car were not introduced in violation of ... the Fourth Amendment.” Jackson, 213 F.3d at 1282; see also United States v. Cantu, 684 F. App'x

703, 703 (10th Cir. 2017) (unpublished) (reaffirming Jackson's holding that

warrantless video surveillance did not constitute search). Like the Fourth

Circuit in Vankesteren, however, neither Jackson nor Cantu centered on the

mosaic or a like theory.

9 In holding that footage obtained from surveillance camera installed

without warrant in a common area of hospital did not constitute Fourth

Amendment search, the Ninth Circuit reasoned "the defendant had no objectively reasonable expectation of privacy that would preclude video surveillance of activities already visible to the public.” See United States v.

Gonzalez, 328 F.3d 543, 548 (9th Cir. 2003).

No. 20-2352 27

note these cases did not squarely address the same factual and

legal circumstances presented here.

Furthermore, the only circuit to require the government to

seek a court order authorizing video surveillance is the Fifth

Circuit, which, decades before Jones and Carpenter, found the

government's use of a pole camera for more than thirty days

to record the exterior of defendant's home "qualif[ied] as a

search under the [F]ourth [A]mendment ....” See CuevasSanchez, 821 F.2d at 251. Significantly, however, the government positioned the camera in that case to look over a tenfoot-tall fence and capture images unviewable to passersby.

See id. Thus, for now, no federal circuit court has found a

Fourth Amendment search based on long-term use of pole

cameras on public property to view plainly visible areas of a

person's home. To part ways with our sister circuits that have

spoken to pole cameras, then, would likely create a circuit

split, which "generally requires quite solid justification; we

do not lightly conclude that our sister circuits are wrong.” Andrews v. Chevy Chase Bank, 545 F.3d 570, 576 (7th Cir. 2008).

Federal district courts are mixed on whether pole camera surveillance constitutes a search. Following the trend lines

of the federal circuit courts, district courts in the Seventh Circuit have found no Fourth Amendment searches when

law enforcement officers made extended use of pole cameras.10 Some federal district courts outside the Seventh Circuit

10 See, e.g., United States v. Kubasiak, No. 18-CR-120, 2018 WL 4846761,

at *3, *7 (E.D. Wis. Oct. 5, 2018) (finding monthslong use of a camera installed on defendant's neighbor's property was not a Fourth Amendment

search because footage revealed "only what the neighbor, or a police officer standing in the neighbor's house, could have seen”); United States v.

28 No. 20-2352

Kay, No. 17-CR-16, 2018 WL 3995902, at *1, *3 (E.D. Wis. Aug. 21, 2018)

(concluding eighty-seven days of pole camera surveillance "[did] not constitute a Fourth Amendment search” and noting "nearly every federal

court which has addressed the issue has held that pole camera surveillance of a person's driveway or the exterior of his residence does not violate the person's reasonable expectation of privacy”); United States v.

Tirado, No. 16-CR-168, 2018 WL 1806056, at *3–4 (E.D. Wis. Apr. 16, 2018)

(finding three-month use of pole camera was not a search because, prior

to Carpenter, "the Seventh Circuit ha[d] not so held [that to be unconstitutional], and the other circuit courts of appeal ha[d] rejected such claims”);

see also generally United States v. Harris, No. 17-CR-175, 2021 WL 268322

(E.D. Wis. Jan. 27, 2021) (finding warrantless video surveillance cameras

in and outside of defendant's apartment complex did not amount to

Fourth Amendment search because "[u]nlike [the CSLI in Carpenter], the

video surveillance did not track the totality of the defendant's movements” (citation omitted)).

No. 20-2352 29

agree that use of pole cameras does not constitute a search.11

Nevertheless, that view is not unanimous.12

11 See, e.g., United States v. Flores, No. 19-CR-364, 2021 WL 1312583, at

*8 (N.D. Ga. Apr. 8, 2021) (finding no Fourth Amendment search from

pole camera footage because "[t]he images of a single, fixed location captured by the pole camera in this case d[id] not equate with the activities

revealed by cell-site location information considered by the Court in Carpenter”); United States v. Edmonds, 438 F. Supp. 3d 689, 694 (S.D. W. Va.

2020) ("declin[ing] to adopt the Defendant's proposed blanket rule that a

warrant is required for use of a pole camera placed in a public location

with a view available to the public”); United States v. Mazzara, No. 16 CR.

576, 2017 WL 4862793, at *10–12 (S.D.N.Y. Oct. 27, 2017) (finding that

twenty-one-month "video surveillance at issue ... did not violate any expectation of privacy that modern society is prepared to recognize as reasonable under Katz and its progeny”); United States v. Pratt, No. 16-CR20677-06, 2017 WL 2403570, at *4 (E.D. Mich. June 2, 2017) ("Continuous

camera surveillance of private property does raise privacy concerns and

is evocative of an 'Orwellian state.' But there are mitigating factors and

controlling precedent which justify denial of the motion to suppress here.”

(citation omitted)); United States v. Gilliam, No. 12-CR-93, 2015 WL

5178197, at *9 (W.D. Pa. Sept. 4, 2015) (finding no "objectively reasonable

expectation of privacy when the images captured by the pole camera were

visible to any person who was located in the public street looking at his

home”); United States v. Brooks, 911 F. Supp. 2d 836, 843 (D. Ariz. 2012)

("[L]aw enforcement's use of the pole camera did not violate the Fourth

Amendment ....”).

12 See, e.g., United States v. Houston, 965 F. Supp. 2d 855, 898 (E.D. Tenn.

2013) (finding that "warrantless video surveillance of the curtilage of [the

Defendant's home], beyond fourteen (14) days violated the Defendant's

reasonable expectation of privacy”); United States v. Vargas, 2014 U.S. Dist.

LEXIS 184672, *27 (E.D. Wash. Dec. 15, 2014) ("[L]aw enforcement's video

surveillance of [the defendant's] front yard for six weeks with a camera

that could zoom and record violated his reasonable expectation of privacy:

an expectation that society is prepared to recognize as reasonable.”).

30 No. 20-2352

State courts likewise disagree whether pole camera use

constitutes a search. Some state courts have joined the chorus

determining that pole camera use does not qualify as a Fourth

Amendment search.13 However, other state supreme and appellate courts have found the use of pole cameras for varying

durations violates the Fourth Amendment.14 Mirroring this

array of opinions, scholars and students have puzzled over

how the law ought to treat pole camera surveillance.15

13 See, e.g., State v. Duvernay, 2017-Ohio-4219, 92 N.E.3d 262, 269–70, at

¶ 25 (3d Dist.) (affirming an Ohio "trial court's determination that law enforcement's use of the pole camera [for nine days] did not violate [the defendant's] Fourth Amendment right to privacy”).

14 See, e.g., State v. Jones, 903 N.W.2d at 111–13 (holding that government had executed a search through "the warrantless use of a pole camera

to surveil a suspect's activities outside his residence for two months”); People v. Tafoya, 2019 COA 176, ¶¶ 2, 33–52, No. 17CA1243, 2019 WL 6333762,

at *1, *6–10 (holding that "the continuous, three-month-long use of the

pole camera constituted a search under the Fourth Amendment”), cert.

granted, No. 20SC9, 2020 WL 4343762 (Colo. June 27, 2020); cf. Commonwealth v. Mora, 150 N.E.3d 297, 302 (Mass. 2020) (concluding that "continuous, long-term pole camera surveillance targeted at the residences of [the

defendants] well may have been a search within the meaning of the Fourth

Amendment, a question we do not reach, but certainly was a search under

art. 14” of the Massachusetts Declaration of Rights); Commonwealth v.

Comenzo, No. 1482CR01050, 2021 WL 616548, at *8 (Mass. Super. Jan. 11,

2021) ("[T]he seventeen-day video surveillance in this case would have

required a warrant under Mora.”).

15 See, e.g., Taylor H. Wilson, Jr., Note, The Mosaic Theory's Two Steps:

Surveying Carpenter in the Lower Courts, 99 Tex. L. Rev. Online 155, 173–75

(2021) (discussing the "close case” pole camera surveillance presents under the mosaic theory); Aparna Bhattacharya, Note, The Impact of Carpenter v. United States on Digital Age Technologies, 29 S. Cal. Interdisc. L.J. 489,

501–07 (2020) (discussing and applying Carpenter to pole camera

No. 20-2352 31

3. The Pole Camera Surveillance Here Was Not a

Search Under the Mosaic Theory

Having outlined the theoretical and jurisprudential underpinnings of the mosaic theory and various courts' treatment of pole camera footage, we now turn to Tuggle's case.

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.” See Carpenter, 138 S. Ct. at 2217 ("[I]ndividuals

have a reasonable expectation of privacy in the whole of their

physical movements.”). Even if we accepted the mosaic theory, however—and we do not go that far—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.

surveillance); Matthew Tokson, The Next Wave of Fourth Amendment Challenges After Carpenter, 59 Washburn L.J. 1, 17–19 (2020) (predicting the Supreme Court will "rule that [pole camera] surveillance violates the Fourth

Amendment”); Taylor Cutteridge, Comment, Now You See Me: An Examination of the Legality of Police Use of Utility Pole Surveillance Cameras, 48 Cap.

U. L. Rev. 75, 102 (2020) (concluding that the Supreme Court should hold

pole camera surveillance does "not constitute a search under the Fourth

Amendment”); Tiffany M. Russo, Comment, Searches and Seizures As Applied to Changing Digital Technologies: A Look at Pole Camera Surveillance,

12 Seton Hall Cir. Rev. 114, 115–18 (2015) (arguing that courts should

broadly apply Ciraolo's holding—that the defendant did not have an objectively reasonable expectation of privacy when his marijuana crop was

visible to the naked eye—to video surveillance).

32 No. 20-2352

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.” See Jones, 565 U.S. at 415 (Sotomayor, J., concurring)

(emphasis added); Carpenter, 138 S. Ct. at 2217 (same). 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.” 138 S. Ct. at

2218.

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,” id. at 2219, or his "public movements,” Jones, 565 U.S.

at 415 (Sotomayor, J., concurring), 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, Kerr, The Mosaic Theory, supra, at 326, 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

No. 20-2352 33

out, dogging his prey until he has identified all the places,

people, amusements, and chores that make up that person's

hitherto private routine.” Maynard, 615 F.3d at 560. 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. See, e.g., State v. Jones, 903 N.W.2d at 111 ("[O]fficers

[were] able to 'capture[] something not actually exposed to

public view—the aggregate of all of [the defendant's] coming

and going from the home, all of his visitors, all of his cars, all

of their cars, and all of the types of packages or bags he carried

and when.'” (some alterations in original) (quoting United

States v. Garcia-Gonzalez, No. 14-10296, 2015 WL 5145537, at *5

(D. Mass. Sept. 1, 2015))). 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.” Carpenter, 138 S. Ct. at 2219. Given their immobile nature, the cameras could not make out an exhaustive record of

Tuggle's "hitherto private routine,” Maynard, 615 F.3d at 560,

because much if not most of the relevant details occurred outside of the immediate area in front of Tuggle's home.

The prospective and nonhistorical use of the pole cameras

here further distinguishes them from the technologies in cases

where the Supreme Court relied on mosaic-styled arguments,

which had retrospective capabilities. In Riley v. California, the

Court determined that the government had unlawfully

searched the defendant's phone based in part on the widening

"gulf between physical practicability and digital capacity” of

phones. 573 U.S. at 394. The court noted the immense amount

of information and data that phones contain, including "photographs, picture messages, text messages, Internet browsing

34 No. 20-2352

history, a calendar, a thousand-entry phone book, and so on.”

Id. As for Internet browsing, the court said it could "reveal an

individual's private interests or concerns.” Id. at 395. Foreshadowing the main issue in Carpenter, the Court commented

that "[h]istoric location information is a standard feature on

many smart phones and can reconstruct someone's specific

movements down to the minute, not only around town but

also within a particular building,” essentially allowing the

government to go back in time. Id. at 396.

The Supreme Court brought this idea to the fore in Carpenter when it highlighted CSLI's "retrospective quality” that

"gives police access to a category of information otherwise

unknowable.” 138 S. Ct. at 2218. The advent of CSLI-like technology therefore allows the government to "travel back in

time to retrace a person's whereabouts,” obviating what

would have been previous "attempts to reconstruct a person's

movements [that] were limited by a dearth of records and the

frailties of recollection.” Id. at 2218. We recently suggested

that Carpenter should be read narrowly to proscribe only the

collection of historical CSLI but not real-time CSLI. See United

States v. Hammond, 996 F.3d 374, 383 (7th Cir. 2021) (concluding that government only searched defendant when it collected "historical CSLI,” but otherwise finding no search in

government's collection of defendant's "real-time CSLI”).

By the logic of Riley and Carpenter, and our 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,” Carpenter, 138 S. Ct. at 2218, to say nothing of

the thorny questions presented by a pre-existing network of

No. 20-2352 35

government cameras.16 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, we 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. See Hammond, 996 F.3d at 387 ("The 'narrow' Carpenter decision did not determine whether the collection of realtime CSLI constitutes a Fourth Amendment search.”). The

majority opinion in Carpenter itself offers support for this interpretation, as it stated that the Court was not "call[ing] into

question conventional surveillance techniques and tools, such

as security cameras.” 138 S. Ct. at 2220 (emphasis added).

Whether pole cameras are the same as security cameras is irrelevant because the cameras here would clearly qualify as a

"conventional surveillance technique[].”See id.

We emphasize, however, that our decision in Tuggle's

case does not rest on the premise that the government could

have—in theory—obtained the same surveillance by stationing an agent atop the utility poles outside Tuggle's home, thus

rendering the decision to instead use pole cameras constitutional. See Houston, 813 F.3d at 289 ("[I]t is only the possibility

16 See, e.g., Rebecca Lipman, Protecting Privacy with Fourth Amendment

Use Restrictions, 25 Geo. Mason L. Rev. 412, 436–37 (2018) ("Cameras have

existed for a long time; networks of cameras blanketing an entire metro

area that are equipped with facial recognition technology have not. Such

a network could allow law enforcement to search for any individual, anywhere in a city, going back for weeks or months ....” (footnotes omitted)).

36 No. 20-2352

that a member of the public may observe activity from a public vantage point—not the actual practicability of law enforcement's doing so without technology—that is relevant for

Fourth Amendment purposes.”). This fiction contravenes the

Fourth Amendment and Katz's command to assess reasonableness. To assume that the government would, or even

could, allocate thousands of hours of labor and thousands of

dollars to station agents atop three telephone poles to constantly monitor Tuggle's home for eighteen months defies the

reasonable limits of human nature and finite resources. In our

view, the premise that the government could realistically accomplish the pole camera surveillance here for more than a

few days is a fiction that courts should not rely on to limit the

Fourth Amendment's protections. See Jones, 565 U.S. at 416

(Sotomayor, J., concurring) ("I do not regard as dispositive the

fact that the government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques.”). We thus close the door on the notion that surveillance accomplished through technological means is constitutional simply because the government could theoretically accomplish the same surveillance—no matter how laborious—

through some nontechnological means.

Although we now hold that the pole camera surveillance

of the exterior of Tuggle's home did not constitute a Fourth

Amendment search, we are not without unease about the implications of that surveillance for future cases. The eighteenmonth duration of the government's pole camera surveillance—roughly four and twenty times the duration of the

data collection in Carpenter and Jones, respectively—is concerning, even if permissible.

No. 20-2352 37

That concern presents us with an obvious line-drawing

problem: How much pole camera surveillance is too much?

Most might agree that eighteen months (roughly 554 days) is

questionable, but what about 250 days? 100 days? 20 days? 1

day? See also Kerr, The Mosaic Theory, supra, at 329–43 (detailing the "remarkable set of novel and difficult questions”

posed by the mosaic theory). Despite the inherent problems

with drawing an arbitrary line, the status quo in which the

government may freely observe citizens outside their homes

for eighteen months challenges the Fourth Amendment's

stated purpose of preserving people's right to "be secure in

their persons, houses, papers, and effects.” Drawing our own

line, however, risks violating Supreme Court precedent and

interfering with Congress's policy-making function, which

would exceed our mandate to apply the law. United States v.

Cuevas-Perez, 640 F.3d 272, 276, 285 (7th Cir. 2011) (Flaum, J.,

concurring) ("The matter is, as they say, above our pay

grade.”), judgment vacated, 565 U.S. 1189 (2012).

Beyond the line-drawing issues, we conclude by sounding

a note of caution regarding the current trajectory of Fourth

Amendment jurisprudence. As technological capabilities advance, our confidence that the Fourth Amendment (as currently understood by the courts) will adequately protect individual privacy from government intrusion diminishes. Kyllo,

533 U.S. at 33–34 ("It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment

has been entirely unaffected by the advance of technology.”).

Current Fourth Amendment jurisprudence admits of a precarious circularity: Cutting-edge technologies will eventually

and inevitably permeate society. In turn, society's expectations of privacy will change as citizens increasingly rely on

and expect these new technologies. Once a technology is

38 No. 20-2352

widespread, the Constitution may no longer serve as a backstop preventing the government from using that technology

to access massive troves of previously inaccessible private information because doing so will no longer breach society's

newly minted expectations. With the advent of digital, cloudbased, and smart capabilities, these new technologies will seldom contravene the traditional limitations imposed by the

Fourth Amendment on physical invasions. Jones, 565 U.S. at

404–11.

Cameras are a perfect example of the circularity. In 1791,

no one would expect—because the technology did not exist—

that the government could capture a still (or moving) image

of a citizen at a given time or place. Even once invented and

introduced to society, few would have expected that the government would use then-unwieldy and expensive cameras to

aid in fast-moving law enforcement investigations. Eventually, cameras grew so sophisticated, discrete, portable, and inexpensive that they pervaded society. By that point, the government's use of cameras was entirely unsurprising, even

though the Framers might have balked at such a prospect

when they penned the Fourth Amendment. See David Alan

Sklansky, Too Much Information: How Not to Think About Privacy and the Fourth Amendment, 102 Cal. L. Rev. 1069, 1085

(2014) ("Cameras mounted in public and semi-public

places ... are increasingly unremarkable, their presence taken

for granted.”). In other words, once society sparks the promethean fire—shifting its expectations in response to technological developments—the government receives license under

current Fourth Amendment jurisprudence to act with greater

constitutional impunity.

No. 20-2352 39

Barring a transformation in governing law, we expect this

chronicle of cameras to repeat itself again and again with the

evolution of far more invasive technologies. Today's pole

cameras will be tomorrow's body cameras,17 "protracted location tracking using [automatic license plate readers],”18

drones,19 facial recognition,20 Internet-of-Things and smart

devices,21 and so much more that we cannot even begin to

17 See Erik Nielsen, Comment, Fourth Amendment Implications of PoliceWorn Body Cameras, 48 St. Mary's L.J. 115, 120 (2016) ("[T]he increased use

of widespread video recording, although intended to prevent misconduct

of police officers, creates concerns over the Fourth Amendment rights of

individuals to be free from unreasonable searches.”).

18 See Samuel D. Hodge, Jr., Big Brother Is Watching: Law Enforcement's

Use of Digital Technology in the Twenty-First Century, 89 U. Cin. L. Rev. 30,

40 (2020) ("[L]icense plate reader databases provide the opportunity for

institutionalized abuse by allowing anyone who has access to the information to snoop into an individual's daily activities, habits, or present and

past relationships.”).

19 See Jennifer M. Bentley, Note, Policing the Police: Balancing the Right

to Privacy Against the Beneficial Use of Drone Technology, 70 Hastings L.J.

249, 251 (2018) ("[D]rones are ... potent tools that can be used to invade

privacy and conduct highly intrusive surveillance.”).

20 See Andrew Guthrie Ferguson, Facial Recognition and the Fourth

Amendment, 105 Minn. L. Rev. 1105, 1108 (2021) (asserting that "the Fourth

Amendment will not save us from the privacy threat created by facial

recognition surveillance”).

21 See Eunice Park, Objects, Places and Cyber-Spaces Post-Carpenter: Extending the Third-Party Doctrine Beyond CSLI: A Consideration of IoT and

DNA, 21 Yale J.L. & Tech. 1, 58 (2019) (arguing that "clarity [in Fourth

Amendment jurisprudence] is needed for the vast array of unregulated

technologies growing in popularity, and for those yet to emerge”); Andrew Guthrie Ferguson, The "Smart” Fourth Amendment, 102 Cornell L.

Rev. 547, 631 (2017) ("In a world that needs both smart devices and the

40 No. 20-2352

envision. New technologies of this sort will not disappear, nor

will the complicated Fourth Amendment problems that accompany them. If anything, we should expect technology to

continue to grow exponentially. And if current technologies

are any indication, that technological growth will predictably

have an inverse and inimical relationship with individual privacy from government intrusion, presenting serious concerns

for Fourth Amendment protections.

Assuming as much, it might soon be time to revisit the

Fourth Amendment test established in Katz. See Cuevas-Perez,

640 F.3d at 276 (Flaum, J., concurring) ("If the doctrine needs

clarifying, tweaking, or an overhaul in light of technologies

employed by law enforcement, that additional guidance

should come from the Supreme Court.”). Indeed, almost four

decades ago, when considering a respondent's argument that

"twenty-four hour surveillance of any citizen of this country

will be possible, without judicial knowledge or supervision,”

the Court reserved judgement because, "if such dragnet type

law enforcement practices as respondent envisions should

eventually occur, there will be time enough then to determine

whether different constitutional principles may be applicable.” Knotts, 460 U.S. at 283–84. As this case illustrates, roundthe-clock surveillance for eighteen months is now unextraordinary.

This could also be an apt area for Congress to legislate because, as some have noted, "Congress has significant institutional advantages over the courts in trying to regulate privacy

Fourth Amendment, there ... needs to be a new theory to protect the data

trails we leave behind. Without such a theory, data trails will exist outside

of Fourth Amendment protection, and an intrusive sensor surveillance

system will be created without any constitutional restraints.”).

No. 20-2352 41

in new technologies.” Kerr, The Mosaic Theory, supra, at 350;

see also Kyllo, 533 U.S. at 51 (Stevens, J., dissenting) ("It would

be far wiser to give legislators an unimpeded opportunity to

grapple with these emerging issues rather than to shackle

them with prematurely devised constitutional constraints.”);

Carpenter, 138 S. Ct. at 2246 (Thomas, J., dissenting) ("With no

sense of irony, the Court invalidates this [statutory] regime

today—the one that society actually created in the form of its

elected representatives in Congress.” (internal quotation

marks and citation omitted)); Cuevas-Perez, 640 F.3d at 286

(Flaum, J., concurring) ("[T]he unsettled, evolving expectations in this realm, combined with the fast pace of technological change, may make the legislature the branch of government that is best suited, and best situated, to act.”).

For now, though, we will continue to faithfully apply our

current understanding of the Constitution and the Supreme

Court's precedent. With respect to the pole cameras in this

case, that understanding requires that we find no search in

violation of the Fourth Amendment. The district court therefore did not err in denying Tuggle's motion to suppress. As

such, we have no need to consider the government's fallback

argument that, even if there were a Fourth Amendment

search, the good faith exception to the exclusionary rule

would apply.

For these reasons, we AFFIRM the district court’s denial of Tuggle’s motion to suppress