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Abstract

The Fourth Amendment was adopted with a particular focus—to prevent arbitrary government intrusion. However, today most United States Circuit Courts permit arbitrary government intrusion via warrantless pole camera surveillance because the circuit courts apply the Katz test. As a result, government officials are almost entirely free to decide whether to install pole cameras anywhere on public property to continuously surveille a home for whatever duration the officials decide. Neither probable cause nor application for a warrant are required. The officials then not only surveil all visible home activities through the cameras, but the officials also record the surveillance and may introduce the footage as evidence. This warrantless pole camera home surveillance allows the government to arbitrarily invade the security of the home. This arbitrary government intrusion is contrary to the very object of the Fourth Amendment—to protect the right to be secure in one’s home, person, papers, and effects against unreasonable searches. The background of the Fourth Amendment reveals that the essence of an unreasonable search is arbitrary government intrusion not confined by particularity or specific approval. These general and arbitrary intrusions were manifested in the form of general warrants and writs of assistance. Originally, the analysis for whether an unreasonable search occurred was anchored in property principles. While the Supreme Court has not abandoned the property trespass approach, it has added a test that may be utilized for non-trespassory intrusions, typically when technology is involved. This two-pronged test is the Katz test, which asks whether the person invaded had a subjective expectation of privacy and whether that expectation is one that society would accept as reasonable. In recent cases, the Supreme Court recognized that comprehensive surveillance of the person is unconstitutional, particularly via tracking devices and access to cell phone location data. Like the person, the home is under enumerated Fourth Amendment protection. However, the test used to discern whether a search occurs in the context of non-trespassory technological intrusions, the Katz test, has led circuit courts to almost always conclude that the Fourth Amendment does not protect the home from warrantless pole camera surveillance. United States v. Tuggle illustrates a circuit court’s application of the Katz test in the context of pole camera home surveillance. The result of applying this test is that, in this pole-camera context, the Fourth Amendment does not provide protection for the home. In light of the object of the Fourth Amendment—to ensure protection against arbitrary government intrusion—and the failure of the Katz test to ensure the Fourth Amendment’s intended protection for the home, the Supreme Court should take up a pole camera home surveillance case and make two clarifications. First, the Court should declare that the Katz test is inapplicable in the context of pole camera home surveillance. Second, the Court should clarify that warrantless pole camera home surveillance constitutes an unreasonable search. While the Fourth Amendment was adopted to prevent the evil of arbitrary government intrusion, the current Fourth Amendment Katz test as applied to warrantless pole camera home surveillance permits the evil the Amendment was designed to prevent: arbitrary government intrusion. Therefore, it is critical for the Supreme Court to clarify that the Fourth Amendment does protect the home from the arbitrary government intrusion of warrantless pole camera home surveillance.

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