Is it a 4th Amendment Violation to Use City’s Street Videos?

The following summary of a recent Fourth Appellate District Court ruling may immediately seem to some as an absurd appeal by the defendant. However, we present this article because the appellate court provided an important distinction between a city’s use of traffic light camera videos (to include street light videos) and the Fourth Amendment violation in using extensive cell phone tower triangulation location data.

The underlying case involved a man named Kevin Eugene Cartwright. In the early morning of October 9, 2018, Cartwright entered an adult-content store and theatre in San Diego with a firearm drawn, directed the cashier to open the register, and stole the money it contained. He tried to restrain the cashier with zip ties, but was unsuccessful.

The following day, Lorena Espinoza got out of Cartwright’s gold GMC Yukon wearing a purple wig and dark sunglasses. She entered a flooring store in downtown San Diego and led the owner and operator, G.R., toward the back of the store. Shortly thereafter, Cartwright got out of the Yukon wearing a granny mask and sunglasses. He entered the store and incapacitated G.R. first by kicking him and then shooting him three times, inflicting two gunshot wounds. G.R. died as a result of these wounds.

Cartwright then returned to the front of the store with a prybar, which he used to open the register. Cartwright and Espinoza then left the flooring business. Cartwright walked behind a nearby clothing store and removed his mask, an action captured by the store’s security camera. He then used two different white sedans to leave area.

An investigating detective accessed the City’s IQ streetlight cameras, which are located throughout downtown San Diego and other parts of the city. The videos were high quality with wide angle lens footage. Footage is stored on the hard drive for five days. If it is not retrieved within five days, the camera records over the footage.

Video from the streetlight cameras revealed which vehicle Espinoza and Cartwright drove to the flooring store. Querying Department of Motor Vehicle records disclosed Cartwright as the owner of the vehicle. Police then arrested Cartwright and in a subsequent search, found evidence linking him to both the robbery of the adult store and the robbery and the homicide at the flooring store.

In court proceedings, Cartwright moved to suppress the evidence obtained as a result of the streetlight camera footage. The trial court judge, Frederick L. Link, denied the motion.

The jury then convicted Cartwright of first degree murder with special circumstances (Penal Code §§ 187(a), 190.2(a)(17)), robbery (Penal Code § 211), burglary (Penal Code § 459), being a felon in possession of a firearm (Penal Code § 29800(a)(1)), and being a prohibited person owning or possessing ammunition (Penal Code § 30305(a)(1)). Cartwright admitted to eight strike priors and received a sentence consisting of an indeterminate term of life without the possibility of parole (LWOP) plus 50 years to life and a determinate prison term of 20 years and four months.

The only issue on appeal was whether the judge erred in denying Cartwright’s motion to suppress. Cartwright contended it was a warrantless search in violation of the Fourth Amendment and that but for this evidence, the police would not have learned his identity and then would not have obtained the evidence from his house.

The Fourth Appellate District Court began its analysis by noting that the Fourth Amendment protects an individual’s reasonable expectation of privacy against unreasonable intrusion by the government. To successfully claim Fourth Amendment protection, “a defendant must demonstrate that he has an expectation of privacy in the place searched and that his expectation is reasonable.” People v. Jenkins (2000) 22 Cal. 4th 900, 972.

Applying this standard, the appellate court concluded that Cartwright did not have an objectively reasonable expectation of privacy when he traversed a public right of way in downtown San Diego in the middle of a business day.

Cartwright tried to persuade the appellate court that he did have such a right by discussing Carpenter v. United States (2018) 138 S. Ct. 2206 and Leaders of a Beautiful Struggle v. Balt. Police Dep’t (4th Cir. 2021) 2 F.4th 330 to argue that he had such an objectively reasonable expectation of privacy. In Carpenter, the U.S. Supreme Court addressed the warrantless collection of cell-site location information and its subsequent use in reconstructing a suspect’s movement over the course of 127 days. The information linked Carpenter to a series of robberies and led to his conviction. The Court held that the government’s acquisition of the cell-site records invaded Carpenter’s reasonable expectation of privacy and constituted a violation of the Fourth Amendment. Id. at 2219, 2223. The Court concluded that an individual “does not surrender all Fourth Amendment protections by venturing into the public sphere.” Id. at 2217.

In Beautiful Struggle, the Fourth Circuit applied Carpenter to an aerial surveillance program operated by the city of Baltimore. The police in Baltimore were able to use the system to track someone’s every movement throughout the city retroactively over a 45-day period. The Fourth Circuit concluded this system was an incursion into privacy directly comparable to the cell-site location information found illegal in Carpenter.

The Fourth District, applying Carpenter and Beautiful Struggle, found neither of these other two cases suggested the streetlight cameras used by San Diego amounted to a search subject to a warrant requirement. Indeed, the United States Supreme Court in Carpenter specifically stated that its holding was intended to be narrow and did not extend to “conventional surveillance techniques and tools, such as security cameras.” Carpenter, supra, at 2220.

The video evidence in Cartwright did not rise to the same unique nature as cell phone location records as in Carpenter, so the Fourth District affirmed the trial court’s denial of the motion to suppress. In other words, Mr. Cartwright could not maintain an objectively reasonable expectation of privacy in the downtown, urban public spaces where any number of private businesses may have maintained similar security cameras that captured similar images as his.

For more information about a reasonable expectation of privacy, please click on the following articles: