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In this case, federal agents installed a utility pole鈥搈ounted video camera directly in front of Bruce Hay鈥檚 home in Osawotomie, Kansas, capturing Mr. Hay鈥檚 porch, front yard, and driveway鈥攁reas sometimes referred to in legal language the 鈥渃urtilage.鈥� Agents used the camera to surveil Mr. Hay without a warrant for nearly ten weeks. During that period, officers could watch the camera鈥檚 feed in real time鈥攐r later, at their leisure鈥攆rom the station, and could remotely pan, tilt, and zoom close enough to read license plates or detect what someone was carrying into or out of the house. From this, they could learn a great deal of sensitive information about Mr. Hay鈥檚 activities and associations.

Mr. Hay moved to suppress the pole camera footage, arguing that because long-term, round-the-clock video surveillance of a person鈥檚 home reveals comprehensive and highly sensitive information, it constitutes a search under the Fourth Amendment. On May 5, 2022, the U.S. District Court for the District of Kansas denied Mr. Hay鈥檚 request, ruling that circuit precedent foreclosed his arguments and that this kind of surveillance does not qualify as a search. In doing so, the district court acknowledged that the Supreme Court鈥檚 2018 landmark decision in Carpenter v. United States, which held that acquisition of long-term, historical cell-site location information is a search requiring a warrant, might call for reconsideration of the Tenth Circuit鈥檚 outdated cases involving pole cameras.

The ACLU filed a friend-of-the court brief on appeal, urging the Tenth Circuit to affirm that long-term, continuous pole camera surveillance of a person鈥檚 home and its curtilage, when conducted without a warrant, violates the Fourth Amendment right to be secure in our homes against unreasonable searches. Even though the exterior of a home is in public view, protracted surveillance over weeks can reveal patterns in a person鈥檚 activity and associations that can be just as sensitive as the historical cell site location information at issue in Carpenter. Over time, pole camera footage can disclose the identities of a person鈥檚 guests and visitors; whether someone other than their spouse visits at night (and how frequently); whether they regularly leave home with a protest sign or a prayer shawl; and, depending on the camera鈥檚 zoom capabilities, potentially whether they are holding documents such as medical bills or ballots. Government agents should not be able to access such extensive revealing information without judicial oversight.

The ACLU鈥檚 brief also argues that authorizing warrantless, prolonged pole camera surveillance of a home would disadvantage those who lack the means to protect themselves against such surveillance. Our constitutional right to privacy should not hinge on our homeowner status or our ability erect expensive fencing tall enough to shield our homes from prying government eyes. But this is exactly the result that would flow from a decision declining to hold that the Constitution protects against the kind of surveillance that took place in this case.

The ACLU of Colorado, the ACLU of Kansas, the Electronic Privacy Information Center, the Center for Democracy & Technology, and the Brennan Center for Justice joined the brief. United States v. Hay is one of a series of cases in which the ACLU has encouraged courts to recognize that long-term, continuous video surveillance of a person鈥檚 residence is a Fourth Amendment search.