A Lima man argued that video footage taken from a utility pole near his home amounted to an illegal search of his property.

A Lima man argued that video footage taken from a utility pole near his home amounted to an illegal search of his property.

Law enforcement’s installation and operation of a video camera on a utility pole near a Lima man’s residence didn’t violate his right to privacy, and the evidence gathered based on footage from the camera was properly admitted in the trial court, an Ohio court of appeals ruled last week.

The appeals court also rejected the man’s argument that evidence resulting from two GPS trackers placed on his vehicles should have been excluded at trial.

Warrants Approve Placement of GPS Trackers and Video Camera
In spring 2015, the Lima/Allen County Interdiction Task Force began an investigation of Marvin Thomas Sr. based on tips that he was involved in drug-related activity. The task force installed a video camera on a utility pole near Thomas’ residence. From watching footage captured by that camera, the task force suspected that Anthony J. Duvernay also was engaged in the same drug activity as Thomas.

The task force obtained search warrants for GPS monitoring devices on Sept. 9 and 23, 2015, and placed them on two vehicles owned by Duvernay. The task force also received a warrant to install a video camera on a utility pole close to Duvernay’s home on Oct. 6, 2015. Based on information gained from the video camera, law enforcement searched Duvernay’s residence with a warrant on Oct. 15.

A grand jury indicted Duvernay for possession of heroin, trafficking in heroin, illegal manufacture of drugs, and engaging in a pattern of corrupt activity. Each count included the possibility of longer prison time as a major drug offender and the forfeiture of four automobiles.

Trial Court Determines Evidence Legally Obtained
After the trial court rejected two requests from Duvernay to suppress evidence gathered from his home, he agreed to plead no contest in December 2016 to heroin possession, an amended corrupt-activity count, and the specifications. The court sentenced him to 11 years in prison for possession and seven years for corrupt activity, to be served consecutively.

Duvernay appealed to the Third District Court of Appeals, arguing that the trial court should have suppressed the evidence obtained from the utility pole camera and the GPS trackers.

Court Considers Whether Garage Was Private Area of Home
Writing for the unanimous Third District in a June 12 decision, Judge Vernon L. Preston explained that the U.S. Constitution’s Fourth Amendment and the Ohio Constitution protect individuals from unreasonable searches and seizures by the government and safeguard a person’s reasonable expectation of privacy.

Duvernay argued that video camera footage of the garage attached to his house was an illegal search because he had a reasonable expectation of privacy in that area. The Third District noted that a person’s reasonable expectation of privacy extends to the “curtilage” of the person’s home. Quoting three U.S. Supreme Court opinions, the appeals court described a home’s “curtilage” as the area that “harbors the ‘intimate activity associated with the sanctity of a man’s home and the privacies of life.’” However, a home’s curtilage may not be protected when open to public view, the Third District stated.

A task force investigator testified that the camera recorded the south side of Duvernay’s residence, which included the driveway, garage door, an angled view of the front of the house, and a small part of the backyard. The investigator said law enforcement could see two to three feet into the garage, and couldn’t see into Duvernay’s backyard. The investigator noted that someone driving down Duvernay’s street or a neighbor could see as much as, or more, than the visuals law enforcement had of Duvernay’s property using the camera.

The Third District ruled that it didn’t need to address whether the garage was within the curtilage of Duvernay’s home because the camera captured views plainly visible to passersby, including the perspective that a utility worker would have from the vantage point of the utility pole. Noting that Duvernay didn’t try to shield the view of his residence with a privacy fence, for example, the appeals court concluded that Duvernay’s Fourth Amendment rights weren’t violated because he couldn’t expect privacy in an area of his home that he knowingly exposed to the public.

Evidence Resulting from GPS Trackers Allowed
Duvernay also argued that the evidence gathered through the GPS devices on his two vehicles were “fruit of the poisonous tree” because it resulted from illegal information obtained from the video camera on the utility pole. The appeals court ruled, however, that no evidence from the camera was used to obtain the search warrants to place the GPS trackers on his vehicles. The GPS warrants were issued in September, while the camera was installed on Oct. 6., “rais[ing] a chronological impossibility,” the court stated.

Judges John R. Willamowski and William R. Zimmerman joined Judge Preston’s opinion.

State v. Duvernay, 2017-Ohio-4219.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

PDF files may be viewed, printed, and searched using the free Acrobat^® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.