OCTOBER 4, 2016
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY J.
J. JACKLEY Attorney General CAROLINE SRSTKA Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
SONNY WALTER Sioux Falls, South Dakota Attorney for defendant
WILBUR, Retired Justice.
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.
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.
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
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.
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.
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.
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).
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.
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
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
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
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.
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.
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).
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 S.Ct.at
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).
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
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.
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.
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