United States v. Hay

Court: U.S. Court of Appeals for the Tenth Circuit

Date Filed: May 10, 2023

Background: In 2016, without first seeking a warrant, federal agents installed a surveillance camera on a pole across the street from the Kansas home of Bruce Hay as part of a disability-fraud investigation. The camera monitored Hay’s home for a total of 68 days.

Prosecutors ultimately charged Hay with four counts of theft of public money. But Hay moved to suppress evidence obtained through the pole-camera surveillance, arguing that it violated the Fourth Amendment.

The district court held that the surveillance did not violate Hay’s reasonable expectation of privacy because it considered itself bound by the 2000 decision of the U.S. Court of Appeals for the Tenth Circuit in United States v. Jackson. In that case, the federal appeals court concluded that the government didn’t violate any reasonable expectation of privacy when law enforcement installed pole cameras to monitor suspected leaders of drug organizations.

The district court, however, freely granted in its decision that it might be time for the Tenth Circuit to reconsider Jackson in light of the U.S. Supreme Court’s 2018 ruling in Carpenter v. United States, which clarified that, under the Fourth Amendment’s protection against “unreasonable searches and seizures,” the government must obtain a warrant to access cellphone location data.

Hay appealed to the Tenth Circuit.

Our Position: The Tenth Circuit should reverse the denial of Hay’s motion to suppress evidence obtained through the warrantless pole-camera surveillance.

• Targeted, persistent camera surveillance threatens First Amendment freedoms, including the freedom to gather news.
• The Fourth Amendment requires a warrant before investigators engage in targeted, persistent camera surveillance that would chill First Amendment rights.

Quote: “The technology at issue in this case poses an untenable threat to confidential association, and with it the freedom to gather the news. The press could not, under constant official scrutiny, provide the vigorous check on government that the Constitution recognizes and protects. A probable-cause warrant, and nothing short of it, is necessary to protect the rights enshrined in the First Amendment from persistent, pervasive, and targeted government surveillance.”

Related: Reporters Committee attorneys have previously filed friend-of-the-court briefs in cases concerning the connection between the First and Fourth Amendments and its relation to reporter-source confidentiality, including in Carpenter, United States v. Moore-Bush, and Tuggle v. United States.

Update: On March 19, 2024, the Tenth Circuit affirmed the district court’s decision, concluding that no warrant is required for targeted, persistent camera surveillance of the home.