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State v. Jones

Supreme Court of South Dakota

September 20, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
JOSEPH A. JONES, Defendant and Appellant.

          ARGUED OCTOBER 4, 2016


          MARTY J. JACKLEY Attorney General CAROLINE SRSTKA Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          D. SONNY WALTER Sioux Falls, South Dakota Attorney for defendant and appellant.


          WILBUR, Retired Justice.

         [¶1.] Law enforcement installed a pole camera (without a warrant) on a public street light to record defendant's activities outside of his home, beginning the same day the officers received a tip that a known drug dealer had been traveling to defendant's home to obtain drugs. The camera recorded defendant's activities outside his home for two months, and the officers used the information gained from the camera to obtain a search warrant for defendant's home. The officers executed the warrant and arrested defendant. Defendant moved to suppress the evidence, asserting that the officers' use of the pole camera without a warrant violated the Fourth Amendment. The circuit court denied defendant's motion. Defendant appeals. We reverse in part and affirm in part.


         [¶2.] On January 23, 2015, Elizabeth Carlson, an agent with the South Dakota Division of Criminal Investigation (DCI), informed Detective Dana Rogers of the Brookings Police Department that a person living in the Brookings area may be dealing large quantities of marijuana. Agent Carlson relayed to Detective Rogers that an informant had told her that a man named Brady Schutt would travel from Huron to Joseph Jones's residence in Brookings to pick up large quantities of marijuana to take back to Huron to sell. Agent Carlson also informed Detective Rogers that Schutt drives a red GMC pickup. Detective Rogers confirmed that Schutt drove a red GMC pickup and noted the license plate number. He also verified Jones's address through a computer search. Jones lives in a trailer within and near the entrance to the Lamplighter Village Trailer Park.

         [¶3.] The same day he received the tip from Agent Carlson, Detective Rogers arranged for a City employee to install a pole camera on a public street light across from Jones's trailer. Detective Rogers did not obtain a warrant for the camera. The employee installed the pole camera inside a pole camera box approximately two to four feet below the top of the light. The box, but not the camera, was visible to the public. The camera recorded a street, and Jones's residence and front yard. Detective Rogers testified that he could use a zoom feature to get the camera's focus closer to Jones's residence, but the footage would become blurry and distorted, preventing a clear picture. The pole camera did not have night vision but recorded throughout the night. The night recordings would capture vehicles with lights that drove up to the residence or under the street light. The night recordings would also display shadows of people walking, depending on how clear the evening was. The State claimed that the camera did not record inside Jones's residence. But there is no recording to review to determine the accuracy of that information. The State did not retain the recordings.

         [¶4.] From January 23, 2015 to March 19, 2015, the pole camera continuously recorded activity outside of Jones's residence. The camera sent a live feed to a server located in Pierre, South Dakota, at DCI and to a mobile phone accessible by Detective Rogers. Detective Rogers could view the recording live or he could look at previously-recorded footage to view what had already taken place. Detective Rogers could review a day's worth of activity in approximately 10 to 11 minutes by fast forwarding through the footage. He explained that he could fast forward when nothing happened, and if he observed movement, he could play the recording in real time.

         [¶5.] The pole camera documented when Jones's vehicle was at the residence, when it left, how long it was gone, when visitors came and where they parked, how long they stayed, when pedestrians walked by, etc. Detective Rogers noted the instances when Jones was gone for an extended time. Detective Rogers also observed vehicles associated with known drug offenders, including the red GMC, arrive several times at Jones's residence, all hours of the day and night, sometimes for a short time, sometimes longer.

         [¶6.] On March 6, Detective Rogers reviewed the footage and observed Jones place a black or dark-colored trash bag into his vehicle and drive a short distance and return. Detective Rogers assumed Jones placed the bag in the community dumpster. Detective Rogers and Agent Scot Hawks drove to the dumpster, opened what appeared to be the bag Jones placed in his vehicle, and identified a package addressed to Jones. Ultimately, Detective Rogers retrieved items from the trash bag indicating the use or possession of marijuana.

         [¶7.] On March 11, Detective Rogers again observed Jones load something into his vehicle and drive a short distance and return. Detective Rogers and another officer returned to the dumpster and seized trash bags containing objects linking the trash bags to Jones. In those bags, Detective Rogers also found partial marijuana blunts and two marijuana stems (one stem tested presumptively positive for marijuana).

         [¶8.] On March 11, Detective Rogers used the information learned from the pole camera to prepare an affidavit for a search warrant to install a GPS tracking device on two vehicles at Jones's residence. The circuit court signed the warrant, and Detective Rogers installed the GPS tracking devices. Then on March 13, again using the information obtained from the pole camera, Detective Rogers submitted a second application for a search warrant to search Jones's residence. The circuit court signed the warrant. On March 19, 2015, Detective Rogers and others executed the search warrant and subsequently arrested Jones. The State charged Jones with multiple drug-related offenses.

         [¶9.] Jones moved to suppress the evidence obtained during the search, arguing that the State's use of the pole camera violated the Fourth Amendment. The circuit court held a hearing. During the hearing, the court noted, "as a preliminary matter, . . . the majority of the information presented by Officer Rogers in the affidavits to request GPS monitoring and a search of [Jones's] residence . . . w[as] from information obtained through the use of the pole camera identified in this matter." The court informed counsel "that if the information provided in the search warrant affidavits regarding the pole camera, if that information was removed from the affidavits, that there would not be sufficient probable cause to issue the warrants." The court further indicated that "any evidence obtained as a result of those search warrants would not be used pursuant to the Wong Sun fruit of a poisonous tree decision."

         [¶10.] In regard to the merits, the court found significant that the pole camera "did not track the whereabouts of any of the residents other than the fact that they were either in the mobile home or outside the mobile home." The court found no difference between an officer's ability to conduct a stakeout outside a person's residence and the use of technology in the officer's place. The court further found compelling that cameras "have become a common occurrence" in public places. The court concluded society would not recognize that one has an unfettered expectation of privacy once one steps outside his or her home.

         [¶11.] The court issued findings, conclusions, and an order denying Jones's motion to suppress. It held "[t]hat there was no physical invasion of [Jones's] residence or privacy, and the use of physical observation in this case, via a pole camera, was conducted on public property, and without trespassing onto [Jones's] property, and thus, no Fourth Amendment violation has occurred." The court further concluded that even if use of the pole camera had violated the Fourth Amendment, the good-faith exception to the exclusionary rule applied. Jones appeals, arguing that the circuit court erred when it denied his motion to suppress.

         Standard of Review

         [¶12.] We review a denial of a motion to suppress de novo. State v. Thunder, 2010 S.D. 3, ¶ 11, 777 N.W.2d 373, 377. The court's findings of fact will not be overturned unless clearly erroneous. Id. The application of the law to those facts, or the "court's legal rationale, " however, is a question of law reviewed de novo. Id.


         [¶13.] Jones likens this case to this Court's decision in State v. Zahn, 2012 S.D. 19, 812 N.W.2d 490');">812 N.W.2d 490. In Zahn, we found unconstitutional law enforcement's warrantless use of a GPS tracking device attached to Zahn's vehicle. Id. ¶ 31. Jones concedes that the use of a GPS tracking device involved a physical trespass unlike law enforcement's use of a pole camera on the city's street light in this case. But in Jones's view, law enforcement's installation of a pole camera specifically targeted at his residence for the sole purpose of continuously surveilling the activity just outside of his residence twenty-four hours a day for two months is equally if not more intrusive than the GPS tracking device used in Zahn. He emphasizes that the Fourth Amendment provides greater protection for homes and persons as compared to effects like a vehicle.

         [¶14.] The Fourth Amendment gives people the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, and shall not be violated. U.S. Const. amend. IV; S.D. Const. art. VI, § 11. Historically, "Fourth Amendment jurisprudence was tied to common-law trespass"-a search occurs when the government physically intrudes upon a person's property. United States v. Jones, 565 U.S. 400, 405, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012). Here, law enforcement's use of a pole camera on a public street was not a physical trespass into a protected area. But the United States Supreme Court's later cases "deviated from that exclusively property-based approach." Id. at 405-06, 132 S.Ct. at 950 (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967)). In Katz, the Court held that "the Fourth Amendment protects people, not places." 389 U.S. at 351, 88 S.Ct. at 511. Cases following Katz applied the test stated by Justice Harlan in his concurrence-a search in violation of the Fourth Amendment also occurs when law enforcement violates a person's "reasonable expectation of privacy." Jones, 565 U.S. at 406, 132 S.Ct. at 950 (quoting Katz, 389 U.S. at 360, 88 S.Ct. at 516 (Harlan, J, concurring)). The reasonable expectation of privacy test "has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Id. at 408, 132 S.Ct. at 951 (quoting Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998)). This two-part test asks (1) "whether an individual exhibited an actual expectation of privacy in the area searched" and (2) "whether society is prepared to recognize that expectation of privacy as reasonable." Zahn, 2012 S.D. 19, ¶ 20, 812 N.W.2d at 496 (quoting Thunder, 2010 S.D. 3, ¶ 16, 777 N.W.2d at 378). We determine whether a person has a legitimate expectation of privacy on a "case-by-case basis, considering the facts of each particular situation." Thunder, 2010 S.D. 3, ¶ 16, 777 N.W.2d at 379 (quoting State v. Hess, 2004 S.D. 60, ¶ 17, 680 N.W.2d 314, 322).

         [¶15.] Before we determine whether Jones had a reasonable expectation of privacy that society would recognize as reasonable, we address the fact that the pole camera recorded Jones's activities in an area exposed to the public. Long ago, the United States Supreme Court said, "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351, 88 511. "The 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." California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986). Likewise, the United States Supreme Court has said-in examining the use of a beeper signal-that "[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case." United States v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 1086, 75 L.Ed.2d 55 (1983).

         [¶16.] In line with Katz and Ciraolo, this Court upheld an officer's use of a zoom-lens camera to take photographs of marijuana observed by the officer's naked eye while flying over defendant's residence. State v. Vogel, 428 N.W.2d 272, 276 (S.D. 1988). Other courts also have held that visual observation of areas exposed to the public does not constitute a search, i.e., the cases cited by the dissent dating before 2012. See, e.g., United States v. Bucci, 582 F.3d 108 (1st Cir. 2009); United States v. Vankesteren, 553 F.3d 286 (4th Cir. 2009); United States v. Gonzalez, 328 F.3d 543 (9th Cir. 2003); United States v. Jackson, 213 F.3d 1269 (10th Cir.), vacated on other grounds, 531 U.S. 1033, 121 S.Ct. 621, 148 L.Ed.2d 531 (2000); United States v. Aguilera, No. 06-CR-336, 2008 WL 375210 (E.D. Wis. Feb. 11, 2008) (the "substitution of a camera for in-person surveillance does not offend the Fourth Amendment"); United States v. Clarke, No. Crim.3:04 CR SRU, 2005 WL 2645003 (D. Conn. July 19, 2005); United States v. West, 312 F.Supp.2d 605 (D. Del. 2004); Rodriguez v. United States, 878 F.Supp. 20 (S.D.N.Y. 1995).

         [¶17.] But in 2012, the United States Supreme Court decided Jones, 565 U.S. 400, 132 S.Ct. 945. Jones examined the warrantless use of a GPS tracking device on an automobile and ultimately concluded that a trespassory search occurred requiring a warrant under the Fourth Amendment. Jones is relevant in this case because both the majority and concurring decisions in Jones brought into question the legality of warrantless, long-term video surveillance of an individual's activities or home.

         [¶18.] Justice Scalia, authoring the Opinion of the Court, noted that although "our cases suggest that such visual observation is constitutionally permissible[, i]t may be that achieving the same result [(targeted, long-term surveillance)] through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy[.]" Jones, 565 U.S. at 412, 132 S.Ct. at 953-54 (emphasis added) (The majority declined to address this question.). Likewise, Justice Alito, concurring in the judgment and joined by Justices Ginsburg, Breyer, and Kagan, recognized that advancement in technology changes privacy expectations. Thus, although "relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable, " id. at 430, 132 S.Ct. at 964 (Alito, J., concurring in the judgment), "existing Fourth Amendment doctrine" must consider 21st-century surveillance techniques to determine "whether respondent's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove." Id. at 419, 430, 132 S.Ct. at 958, 964.

         [¶19.] Justice Sotomayor wrote a separate concurring opinion noting the privacy concerns evident in "the Government's unrestrained power to assemble data that reveal private aspects of identity[.]" Id. at 416, 132 S.Ct. at 956 (Sotomayor, J., concurring). "Awareness that the Government may be watching chills associational and expressive freedoms." Id. Justice Sotomayor also endorsed Justice Alito's sentiments: "As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance ...

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