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Pole camera directed at front and back of home does not raise privacy interest

Facts

The Department of Homeland Security began investigating Michael Dennis after a number of accomplices described delivering marijuana to him. On April 30, 2018, DHS agents installed pole cameras directed at the front and back of Dennis’s properties in Houston, Texas. Until July 9, 2018, the cameras captured video of incidents similar to the deliveries described by cooperating defendants Ray Trevino and Ausencio Garcia-Herrera.

On June 24 and July 9, the video showed boxes being unloaded from pickup trucks into the garage, Dennis going from the garage to his house and returning with a bag, trucks departing, and Dennis moving the boxes from the garage to his house. The video also showed Jonathan Ray Alaniz delivering boxes to the garage twice; Houston police stopped Alaniz after he left the property, seizing approximately $5,000 and thirty pounds of marijuana.

On July 11, 2018, law enforcement executed an arrest warrant for Dennis and a search warrant for his property. During a forced entry into his home, an agent shot Dennis on seeing him with a firearm. After his arrest, agents found an AR-15 rifle and an AK-47-type pistol with a drum magazine, 111.85 kilos of marijuana, nineteen firearms, $197,313 cash, money counters, scales, and ledgers showing prices, weights, and names for hydroponic marijuana sales for $800 to $1,000 per pound on his property.

Dennis was convicted of conspiracy to possess with intent to distribute more than 100 kilograms of marijuana and sentenced to 216 months. On appeal, he argued the pole cameras were an unreasonable intrusion into his privacy and the search warrant did not list the dates of the cooperating defendants’ deliveries of marijuana . The 5th affirmed.

Analysis

A. Pole camera

A defendant cannot assert a privacy interest in information which he voluntarily conveyed to anyone who wanted to look. Dennis relies on United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987), to argue that the fencing around his property established his privacy interest, but given that one can see through his fence and that the cameras captured what was open to public view from the street, this is not a clear or obvious application of our precedent. Dennis argues the prolonged and continuous nature of the surveillance violated his Fourth Amendment rights.

Although the Supreme Court addressed a form of continuous surveillance in Carpenter, unlike cell-site location information, there is nothing inherent in the use of security cameras to cast doubt on their validity. It is rather whether the surveillance invades protected privacy interests. Surveillance of areas open to view of the public without any invasion of the property itself is not alone a violation. All that was surveilled here was from the view from the street, continuously visible to individuals.

We do not say that the length of time surveilled is irrelevant, but we find no privacy interest was here invaded— information subject to the daily view of strollers and the community. The legal issues here are not so clear that any error would be plain or obvious. Dennis fails to show that the district court clearly erred in not suppressing the video evidence.

B. Stale information

Dennis also sought to suppress the fruit of the search of his property as relying on stale information, urging that the affidavit did not contain the dates of the cooperating defendants’ deliveries of marijuana. A search warrant may be invalidated upon a showing that the supporting affidavit includes assertions that were deliberate falsehoods or made with reckless disregard for the truth and the remaining portion of the affidavit is insufficient to support a finding of probable cause. It must be shown that the affiant made specific statements that were deliberately false or made in reckless disregard of the truth.

Dennis has offered no proof that the affiant deliberately or recklessly falsified statements about the information from cooperating defendants to mislead the court. Although the dates were omitted, the defendants collectively described nineteen deliveries of hundreds of pounds of marijuana taking place over months. And the more recent video evidence showed that Dennis was engaging in the same conduct described, which freshened the information. Dennis cannot show that the district court plainly erred when it declined to suppress evidence from the search of his property.

 

https://www.ca5.uscourts.gov/opinions/pub/19/19-50855-CR0.pdf