As technology innovates, Fourth Amendment protections potentially become weaker and allow law enforcement to surveille in new ways. Because of those expanded options, the notion of a reasonable expectation of privacy shrinks, leading to further surveillance by police without a warrant. It is essential to reevaluate what is deemed acceptable under the Fourth Amendment when it comes to prolonged warrantless surveillance by law enforcement. The Supreme Court has evaluated this issue for decades, attempting to adapt Fourth Amendment search analysis to the changing landscape of technological innovation. In a case of first impression, the Seventh Circuit erred by holding that eighteen months of warrantless video camera surveillance did not violate the defendant's Fourth Amendment rights in United States v. Tuggle. The court failed to properly apply the Katz Test long used by the Supreme Court; it did not consider the precedent it set by permitting this lengthy surveillance; and, it failed to review the practical impact of prolonged warrantless surveillance, especially in the time of COVID-19 lockdowns. This note suggests that, while a bright line rule of how long is acceptable will not work, eighteen months is longer than what society would reasonably expect law enforcement to be able to do. Further, it argues that Fourth Amendment analysis can and should protect individuals from advancing technology rather than relying on outdated cases and strictly adhering to precedent. The essence of Fourth Amendment search cases is the same no matter what technology is at issue: there is a limit to what police can do and eighteen straight months of surveillance absent a warrant goes too far.
Samantha J. McHugh,
"I Always Feel Like Somebody's Watching Me"
Prolonged Use of Warrantless Video Surveillance and the Fourth Amendment,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol17/iss1/7