Tuggle’s Losing Struggle with the Mosaic Theory of the Fourth Amendment

by | July 15, 2021

United States v. Tuggle, 2021 WL 2946100 (7th Cir. 2021)

Bear with me. What seems like, and eventually is, a simple drug trafficking case involving pole cameras leads us to explore a Fourth Amendment theory new to most cops. The “mosaic theory” of the Fourth Amendment will certainly become a more common argument advanced by defendants as police expand the use of technology in gathering evidence.

Several police agencies investigated Travis Tuggle and his neighbor, Joshua Vaultonburg, based on information that they were running a large methamphetamine distribution operation. Investigators installed three cameras on utility poles located on public property. The pole cameras provided views of Tuggle’s home and a shed at Vaultonburg’s residence on the same block. Investigators installed the first camera in August 2014, another in September 2015 and a third in December 2015. They left the three cameras in place until March 2016.

Investigators could remotely operate the cameras to zoom, pan and tilt. The cameras had basic low-light capability but did not have infrared or audio capture capabilities. During the investigation, a few cameras intermittently stopped functioning and were replaced by newer cameras in the same locations.

The cameras operated 24/7/365. Investigators often monitored the cameras in real time; other times they reviewed recorded surveillance footage. Investigators logged over 100 suspected methamphetamine drops to Tuggle’s residence. Shortly after each drop, suspects came to the house to make apparent buys of methamphetamine. In addition to the pole camera surveillance evidence, investigators corroborated the nature of these visits through informants.

Relying heavily on the pole camera surveillance evidence, investigators obtained search warrants for Tuggle’s house and other, related locations. Subsequent to execution of the search warrants, Tuggle was charged with conspiring to distribute methamphetamine, possession with intent to distribute methamphetamine and maintaining a drug-involved premise. Tuggle asked the trial court to suppress the evidence, asserting the long-term surveillance violated the Fourth Amendment.

A camera mounted where an officer would have a right to be does not violate a legitimate expectation of privacy; therefore, no warrant is required (United States v. Jackson, 213 F.3d 1269 (10th Cir.), rev’d on other grounds, 531 U.S. 1033 (2000); State v. Augafa, 992 P.2d 723 (Haw. App. 1999)). The Supreme Court has held that “nothing in the Fourth Amendment prohibits the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them” (United States v. Knotts, 460 U.S. 276 (1983)). Most courts have viewed pole cameras as extensions of an officers’ senses, like binoculars (United States v. McIver, 186 F.3d 1119 (9th Cir. 1999), cert. denied, 528 U.S. 1177 (2000)). However, a minority of courts find pole cameras to be unreasonable when they constantly monitor areas within the curtilage of the home, not visible to passersby, such as in United States v. Cuevas-Sanchez (821 F.2d 248 (5th Cir. 1987)), where a pole camera observing activities behind a backyard fence was ruled unreasonable intrusion.

For many years, the key focus of a claim of a Fourth Amendment violation through surveillance was whether the police infringed on “a constitutionally protected reasonable expectation of privacy…that society is prepared to recognize as ‘reasonable’” (Katz v. United States, 389 U.S. 347 (1967) (Harlan, J., concurring)).

In the Tuggle case, the appellate court first turned to established precedent that the pole cameras –which captured only images available to the public view from the street– did not intrude on a reasonable expectation of privacy. That was the easy question for the court. The Supreme Court has held police officers need not “avert their eyes from evidence of criminal activity that could have been observed by any member of the public” (California v. Greenwood, 486 U.S. 35 (1988)). Courts have consistently ruled there is no expectation of privacy in the views of driveways and sidewalks (United States v. French, 291 F.3d 945 (7th Cir. 2002)). The pole cameras aimed at Tuggle’s house and Vaultonburg’s shed captured only that which a person driving or walking down the block could see.

The court opined that the fixed pole cameras, even though placed for 18 months, “did not paint the type of exhaustive picture of his every movement that the Supreme Court has frowned upon.”

The “reasonable expectation of privacy” test made famous by Justice Harlan’s concurrence in Katz was supplemented nearly a decade ago by a new vitality to the trespass theory of Fourth Amendment rights in United States v. Jones (565 U.S. 400 (2012)). In Jones, the Supreme Court held that attaching a GPS tracking device to Jones’ vehicle and monitoring the vehicle’s movements over a 28-day period constituted a search. The Court was divided in its reasoning. Justice Scalia’s majority opinion cited a long line of property rights precedent dating back to 1886. The majority held the search occurred because agents “physically occupied private property for the purpose of obtaining information,” essentially trespassing on property rights. Concurring justices rejected this “trespass-based theory,” reasoning instead that “the use of longer term GPS monitoring in investigations of most offenses” violates a legitimate expectation of privacy.

Under Katz, a person had no reasonable expectation of privacy in her movements on public streets, so it would not be a “search” if officers watched her, whether with the human eye or aided by binoculars or a camera. The two concurring opinions in Jones, signed by five justices total, expressed the view that “technology has changed the constitutional calculus by dramatically increasing the amount and precision of data that the government can easily collect” (United States v. Thompson, 811 F.3d 944 (7th Cir. 2016)). “A search occurs either when the government physically intrudes without consent upon a constitutionally protected area in order to obtain information or when an expectation of privacy that society is prepared to consider reasonable is infringed.”

Tuggle asked the court to apply the “mosaic theory” of the Fourth Amendment to conclude that, even if the use of pole cameras capturing only public views was lawful on its face, the aggregation of so much surveillance data created an unconstitutional intrusion on his privacy. The mosaic theory applies the principle that the whole is greater than the sum of its parts when aggregating snippets of information gleaned from surveillance. In other words, the accumulation of events seen in surveillance allowed officers to identify patterns at Tuggle’s house and Vaultonburg’s shed, then apply their understanding of drug trafficking to those patterns and collate that understanding with evidence from informants.

The Fourth Amendment mosaic theory was first applied in United States v. Maynard (615 F.3d 544 (D.C. Cir. 2010)), in which the appellate court considered whether the government’s tracking of the suspect’s car for 28 days by a GPS tracker hidden under his car without a warrant constituted a search under the Fourth Amendment. The court held that it did, reasoning:

Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.

The Maynard decision was affirmed by the Supreme Court under the name of United States v. Jones (the same case discussed above). However, the Supreme Court did not march down the rabbit hole of the mosaic theory. Instead, the Court applied the refreshed version of trespass theory to hold that the agents’ warrantless attachment of the GPS tracker was a physical trespass.

For many years, the key focus of a claim of a Fourth Amendment violation through surveillance was whether the police infringed on “a constitutionally protected reasonable expectation of privacy…that society is prepared to recognize as ‘reasonable.’”

Although the Jones decision did not rest on the mosaic theory, Justices Alito, Ginsburg, Breyer and Kagan all explicitly endorsed the theory in the decision. Three of those justices still sit on the Court. In Carpenter v. United States (128 S.Ct. 2206 (2018)), the Court held the police monitoring of a robbery suspect’s cell-site location information for a period of 127 days amounted to a search under the Fourth Amendment. A five-member majority quoted Justice Sotomayor’s concurring opinion in Jones, noting the suspect’s “all-encompassing” record of his location for 127 days revealed “an intimate window into life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’” To me, it appears that the mosaic theory holds sway with at least some of the Supreme Court justices. Expect a return engagement for the theory at the Supreme Court.

As the appellate court in this case considered the mosaic theory, the court opined that the fixed pole cameras, even though placed for 18 months, “did not paint the type of exhaustive picture of his every movement that the Supreme Court has frowned upon…The cameras here exposed no details about where Tuggle traveled, what businesses he frequented, with whom he interacted in public, or whose homes he visited, among many other intimate details of his life.”

The court affirmed Tuggle’s conviction, and he’ll have a long time to think about a petition to the Supreme Court. He was sentenced to 30 years on one count and 24 years on the other. The court’s parting shot might be read as an invitation for Tuggle to ask the Supreme Court to consider his case: “Although we now hold that the pole camera surveillance of the exterior of Tuggle’s home did not constitute a Fourth Amendment search, we are not without unease about the implications of that surveillance for future cases. The eighteen-month duration of the government’s pole camera surveillance—roughly four and twenty times the duration of the data collection in Carpenter and Jones, respectively—is concerning, even if permissible.” If the Supreme Court does take the case, remember that you read it here! And you’ll know what your prosecutor is talking about when she mentions the mosaic theory of the Fourth Amendment. Amaze your friends at parties with that snippet of legal knowledge.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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