by Richard Resch

After receiving a tip that a known drug dealer had been visiting Joseph Jones’ residence, police installed a pole camera, without a warrant, on a public street light outside of his home for two months. Based upon the information gathered via the pole camera, police obtained a search warrant for Jones’ home, executed it, gathered evidence, and arrested him.

Jones moved to suppress the evidence collected from his residence, arguing that the warrantless use of the pole camera violated the Fourth Amendment. The circuit court denied the motion, and Jones appealed.

Relying on the Katz standard that “the Fourth Amendment protects people, not places” and Justice Harlan’s famous concurrence that a Fourth Amendment violation occurs when police impermissibly intrude upon a person’s “reasonable expectation of privacy,” the South Dakota Supreme Court explained that it must “determine whether Jones had a reasonable expectation of privacy that society would recognize as reasonable.”

The Court applied the two-part Katz test articulated in Harlan’s concurrence, which 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.”

As to the first, subjective prong of the test, the Court agreed with Jones that “he had a subjective expectation of privacy in the whole of his movements.” That is, he had an expectation of privacy in the aggregate comings and goings of himself and guests over the two-month period. Turning its attention to the second, objective prong, the high court again agreed with Jones that “society would not give law enforcement an unfettered right to use targeted, long-term video surveillance without any regard for or protection of a citizen’s right to privacy.” The Court held that since Jones had a reasonable (subjective) expectation of privacy that society is prepared to recognize (objectively) as reasonable, the use of the pole camera in this case constituted a warrantless search in violation of the Fourth Amendment.

The Supreme Court acknowledged that some federal courts and lower courts in other states have reached the opposite conclusion based upon facts similar to those in the present case, but it pointed out that it is not bound by those decisions. It is important to understand that the protections afforded by the U.S. Constitution, as interpreted and applied by the U.S. Supreme Court, essentially serve as minimum standards that states must abide by, but states are free to provide greater protections than those required under federal law.    

Although the South Dakota Supreme Court concluded that warrantless use of the pole camera constituted a search in violation of the Fourth Amendment, the Court nevertheless affirmed the denial of Jones’ motion to suppress based upon the Good Faith Exception to the Exclusionary Rule, reasoning the police did not act in “bad faith or that suppression of the evidence would deter law enforcement wrongdoing.” See: State v. Jones, 2017 S.D. 59 (2017).  

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