This week Kansas saw its first state appellate court case concerning local law enforcement’s use of pole cameras. And it was a win for the good guys. 

Tavian Tishun Garrett had earlier pled guilty to aggravated indecent solicitation of a child, was placed on probation, and was subject to continuing offender registration. After local police were alerted that Garrett was living not at his registered address but instead with his girlfriend, officers installed a pole camera on a city-owned power pole near the girlfriend’s house. The camera viewed the home’s front porch and front door, but it could not “see” into the house. The camera operated 24 hours a day for 13 days, took photos when it sensed motion in the designated area, and recorded approximately 4,200 photos while installed. Those photos repeatedly photographed Garrett entering and exiting the house. When Garrett was later charged with an offender registration violation, he moved to suppress the pole camera evidence. After a hearing, the trial court said no to suppression,Garrett was convicted, and he appealed.  

A panel of the Court of Appeals has now agreed with the trial judge. In a well-reasoned opinion by Judge Kathryn Gardner, the Court held that the pole camera here did not constitute a search (thus no 4th Amendment issue) because Garrett lacked a reasonable expectation of privacy  in the area being surveilled.  

Garrett lacked an expectation of privacy because the camera 1) was located where it had the right to be; 2) viewed only the outside of the house; 3) was only used for 13 days; and, 4)  only observed what a member of the public could have seen from the street. Further, 5) Garrett  had not attempted to keep the porch private by screening or fencing; 6) law enforcement never physically entered the curtilage during the investigation; and, 7) the photos showed “only a shard  of Garrett’s life and not the entire mosaic [of Garrett’s life and travel].” 

Because “[l]aw enforcement used that technology while occupying a place they were lawfully entitled to be, and to observe only what the public could observe” the panel found that Garrett’s motion to suppress the photos was properly denied. 

~ Colin