If the government points cameras at your home and films you 24/7 for 18 straight months without a warrant, is that a “search” under the Fourth Amendment? The 7th U.S. Circuit Court of Appeals, in a case called United States v. Tuggle, recently said “no.” But in a new amicus brief supporting a petition for Supreme Court review, the Institute for Justice (IJ) argues that the answer is “yes.”

“We filed this brief because the Supreme Court’s current approach to these issues is broken,” said IJ Senior Attorney Robert Frommer. “For decades, the court has employed a bizarre definition of the word ‘search’ that asks not whether police are looking for something, but whether ‘society’ would find a person’s privacy expectation ‘reasonable.’ As the Seventh Circuit’s decision shows, this definition often produces counterintuitive results that allow deeply intrusive government conduct to side-step the Fourth Amendment entirely. Our brief urges the Supreme Court to adopt a definition of ‘search’ that better protects all Americans’ privacy rights.”

Starting in 2013, law enforcement agencies in Illinois suspected Travis Tuggle was dealing drugs. But they needed more evidence. So, in 2014, they installed three surveillance cameras on utility poles surrounding Tuggle’s home and started watching him 24/7. Using the cameras, police could tune in live and monitor Tuggle’s every coming and going; they could pan and zoom to get better angles; they could even play back any minute of any day at their pleasure.

All of this went on for 18 months without Tuggle’s consent or a warrant.

Eventually, police used the footage they obtained to get a search warrant and arrested Tuggle on drug charges. Tuggle moved to suppress the evidence acquired by the cameras, arguing that the warrantless surveillance violated his Fourth Amendment rights. But earlier this year, the Seventh Circuit rejected Tuggle’s argument, reasoning that the Fourth Amendment did not even apply because no “search” had occurred.

The court felt bound by a prior Supreme Court case called Katz, which held that no “search” occurs, for Fourth Amendment purposes, unless the government intrudes on a privacy expectation that “society” would consider reasonable. Katz also held that a person has no legitimate privacy expectation in what he “knowingly exposes to the public.” Following this logic, the Seventh Circuit felt that its hands were tied: the cameras only recorded the outside of Tuggle’s home, so no “search” occurred, the judges decided.

The court was clearly uncomfortable with the result. It expressed “unease about the implications . . . for future cases” and concern that government’s ability to “freely observe citizens outside their homes for eighteen months” might undermine “the Fourth Amendment’s stated purpose of preserving people’s right to ‘be secure.’” The court concluded by calling on the Supreme Court to “revisit” Katz.

IJ’s amicus brief urges the Supreme Court to take the case so that it can abandon Katz and replace it with an Ordinary Meaning Test, under which the government conducts a “search” whenever it engages in purposeful, investigative conduct directed toward you or your property. Under that test, what the government did to Tuggle would trigger the Fourth Amendment.

“The test we’re proposing honors the ordinary meaning of the term ‘search,’ both at the Founding and now,” said IJ Attorney Joshua Windham. “If your neighbor pointed cameras at your house for 18 months and watched your every move, you would reasonably conclude that he was searching for something. There’s no reason for courts to reach the opposite conclusion just because the police are involved.”

As technology has advanced, judges have invented more and more loopholes for the government to snoop on Americans without a warrant. That’s why IJ recently launched its Project on the Fourth Amendment, which aims to restore all Americans’ right to be secure in their persons and property from unreasonable government intrusions.

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