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Winston Smith: Does Big Brother exist?

O’Brien: Of course he exists.

Winston Smith: Does he exist like you or me?

O’Brien: You do not exist.[1]

In today’s world, where can you go where there is not a camera? Whether seen, or unseen, you have a pretty good idea you are under constant surveillance the moment you step out of your front door. But what if you step off the grid? Go somewhere way out in the country. Maybe Roane County in rural Tennessee? Not so fast.

Recently in U.S. v. Houston, the Sixth Circuit Court of Appeals decided whether someone has a reasonable expectation of privacy on their farm from video surveillance approximately 200 yards away. Law enforcement installed a camera on top of a utility pole and watched the Houstons on their farm for ten weeks without a warrant. The video footage eventually captured Rocky Houston illegally possessing firearms while on the farm. The court determined no Fourth Amendment violation occurred, because the footage did not violate Houston’s reasonable expectation of privacy on the farm. The court reasoned the camera recorded the same view as people could get if they drove by the farm on a public road. The court also noted that law enforcement could obtain the same surveillance by placing agents near the farm around the clock.

Importantly, courts place great weight on a person’s efforts to shield their activities from the public when evaluating whether they had a reasonable expectation of privacy. The Supreme Court’s analysis dates back to Katz v. U.S in 1967. Katz stands for the principle that the Fourth Amendment should protect a citizen’s subjective expectation of privacy, if society recognizes that expectation of privacy as reasonable. In Katz, the expectation of privacy deemed reasonable was the inside of a telephone booth where Katz was making calls. The government eavesdropped on Katz with a device attached to the outside of the telephone booth without a warrant. Because it was reasonable Katz to have an expectation of privacy inside of a telephone booth, the court ruled a search occurred. A search with neither a warrant nor a warrant exception, violates the Fourth Amendment.

In Anderson-Bagshaw, the Sixth Circuit Court of Appeals had “some misgivings” about utility-pole surveillance over a person’s backyard for three weeks without a warrant, but decided not to rule on the issue. In Kyllo v. U.S., the Court determined using a thermal-imaging device to detect the heat emanating from a person’s home is a search; while aerial surveillance of private homes and surrounding areas from a helicopter is not a search under Florida v. Riley.

If you are not taking steps to shield your actions from public view, there is a good chance the courts will not find you have a reasonable expectation of privacy. Big Brother may be watching, without a warrant, even in rural Tennessee.

Robert H. Ambrose is a criminal defense attorney in Minneapolis and St. Paul, Minnesota. He represents individuals charged with crimes in state and federal court. He is a Top 40 Under 40 Trial Lawyer; and a “Ten Best” Under 40 Criminal Attorney for Client Satisfaction. St. Paul MN Criminal Defense Lawyer; Minneapolis Criminal Defense Attorney; Criminal Lawyer St. Paul MN.

[1] George Orwell, 1984 150 (1949).

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