                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                   UNITED STATES COURT OF APPEALS                      April 5, 2017
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 16-2191
                                               (D.C. No. 5:14-CR-02114-RB-1)
 RUBEN CANTU,                                             (D. N.M.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.


      Ruben Cantu appeals the district court’s denial of his motion to suppress

evidence seized as the result of surveillance by a camera placed without a warrant

on a utility pole near his residence. After the district court denied his motion to

suppress, Cantu pleaded guilty to being a felon in possession of a firearm and

ammunition, in violation of 18 U.S.C. § 922(g), reserving the right to appeal the

district court’s order. The only issue before us in this appeal is whether the

district court erred in denying Cantu’s motion to suppress.


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      We affirm because we can find no error in the district court analysis. The

district court correctly followed our decision in United States v. Jackson, 213

F.3d 1269, 1280 (10th Cir.), judgment vacated on other grounds, 531 U.S. 1033

(2000), which involved similar facts, as well as the relevant Supreme Court

precedent.

                                I. Background

      The arrest in this case arose from an investigation by the Lea County Drug

Task Force and the FBI of a drug-trafficking organization operating in Hobbs,

New Mexico. One of the subjects of their investigation was Rolando Cantu, the

defendant’s brother and also his next-door neighbor. At the request of the Task

Force, the local utility company installed a video camera on a utility pole

approximately 70 yards from the brothers’ adjacent residences. This was the

closest utility pole to the properties. The pole was on the side of a paved alley

providing access to a parking lot and commercial buildings. The camera allowed

agents to observe the front of the brothers’ properties, as well as a common,

unpaved area between Rolando Cantu’s house and the defendant’s trailer. The

camera did not record sound, and it did not allow the agents to see inside either

property. It provided a continuous live feed to a television screen at the Task

Force office. Agents at the Task Force office could adjust the camera, zoom it in

and out, and take still photographs. Although they are uncertain precisely when it



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was removed, the Task Force was using the camera at another address a few

months after the surveillance of the Cantus’s properties.

      During the course of this surveillance, the Task Force’s commander saw

someone on the video feed walking in the common area between the two

residences, carrying what looked like an assault rifle. The commander captured

several still photographs from the feed. It is apparent from these photographs that

a car or pedestrian coming down the street would have seen the man carrying the

weapon. See Attachments to Aple. Br. The Task Force agents knew from New

Mexico Probation and Parole that Ruben Cantu, the defendant, lived in the

residence next to Rolando Cantu. The agents compared a photograph of Ruben

Cantu with the still photographs from the video camera, which allowed them to

identify the man carrying the assault rifle as Ruben Cantu. After reviewing his

criminal history and seeing a prior felony conviction, the Task Force obtained a

search warrant for Ruben Cantu’s property. The agents found an AR-15 assault

rifle and over 100 rounds of ammunition.

                                  II. Analysis

      The parties have stipulated all relevant facts, so we review only the district

court’s legal analysis. We review questions of law de novo, including the

“ultimate determination of reasonableness under the Fourth Amendment.” United

States v. Shuck, 713 F.3d 563, 567 (10th Cir. 2013) (quoting United States v.

Polly, 630 F.3d 991, 996 (10th Cir. 2011)).

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      Our analysis could begin and end with United States v. Jackson, 213 F.3d

1269 (10th Cir.), judgment vacated on other grounds, 531 U.S. 1033 (2000). The

facts in Jackson were quite similar. Law enforcement had “installed video

cameras on the tops of telephone poles overlooking the residences of” the

suspected leaders of drug organizations. Id. at 1276. “[B]oth of these cameras

could be adjusted by officers at the police station, and could zoom in close

enough to read a license plate, [but] neither had the capacity to record sound, and

neither could view the inside of the houses.” Id.

      On appeal, the subject of the surveillance argued the pole cameras violated

her Fourth Amendment rights because they were installed without a warrant. Id.

at 1280. We disagreed, holding that “[t]he use of video equipment and cameras to

record activity visible to the naked eye does not ordinarily violate the Fourth

Amendment.” Id. at 1280-1281 (citing Dow Chem. Co. v. United States, 476 U.S.

227 (1986); California v. Ciraolo, 476 U.S. 207, 213 (1986)). Not only that, but

“activity a person knowingly exposes to the public is not a subject of Fourth

Amendment protection, and thus, is not constitutionally protected from

observation.” Id. at 1281 (citing Katz v. United States, 389 U.S. 347, 351

(1967)). Pointing to two facts—(1) the pole cameras could not see inside the

houses and (2) the pole cameras could only see what a passerby could

observe—we found the subject of the surveillance “had no reasonable expectation

of privacy that was intruded upon by the video cameras.” Id. The surveillance

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therefore did not violate the Fourth Amendment, and the police officers did not

need to obtain a warrant to install or use the pole camera. Id.

      Cantu attempts to distinguish his case from Jackson. He points out that the

pole camera evidence in Jackson was used against the subject of the investigation,

whereas he “simply unknowingly walked into the path” of the pole camera. Aplt.

Br. at 25. But this is a distinction without legal significance. Our holding in

Jackson was not premised on the fact that the evidence was used against the

subject of the investigation. Here, agents saw a man walk from a suspected drug

trafficker’s residence to a neighboring house carrying a large assault rifle.

“Fourth Amendment protection of the home has never been extended to require

law enforcement officers to shield their eyes.” Ciraolo, 476 U.S. at 213. And it

has never been extended to prevent them from acting when in the course of their

investigation they see someone other than their target committing a likely

criminal act.

      Cantu also argues that Florida v. Jardines, 133 S. Ct. 1409 (2013), a

Supreme Court case decided after Jackson, casts Jackson’s holding into doubt.

We disagree. Cantu’s argument confuses the two different tests articulated in the

Fourth Amendment jurisprudence: the reasonable-expectation-of-privacy test and

the common-law trespassory test. The Supreme Court clarified in United States v.

Jones, 565 U.S. 400, 405-08 (2012), that an unconstitutional search can be

established under either standard. As Cantu himself notes, the “reasonable-

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expectation-of-privacy test has been added to, not substituted for, the common-

law trespassory test.” Aplt. Br. at 13 (quoting Jones, 565 U.S. at 409). Jardines,

unlike here, involved a “physical intrusion of a constitutionally protected area.”

133 S. Ct. at 1414 (quoting United States v. Knotts, 460 U.S. 276, 286 (1983)

(Brennan, J., concurring)). The police in Jardines “gather[ed] information in an

area belonging to [the suspect] and immediately surrounding his house . . . by

physically entering and occupying the area.” Id. at 1414. By contrast, Cantu’s

motion to suppress must be assessed under the reasonable-expectation-of-privacy

test, since he does not allege any physical intrusion occurred. Jardines has no

bearing on Jackson or on Cantu’s appeal.

      Cantu also tries to avoid Jackson’s application by arguing that the common

area in which he was carrying the assault rifle was his curtilage and thus a protected

area under the Fourth Amendment. Even assuming for the sake of argument that it

was curtilage, the surveillance did not violate Cantu’s constitutional rights. “That

[an] area is within the curtilage does not itself bar all police observation.” Ciraolo,

476 U.S. at 213. The question is still whether society is willing to recognize Cantu’s

expectation of privacy as reasonable. See, e.g., Smith v. Maryland, 442 U.S. 735,

740 (1979). And Jackson stands for the proposition that it is not. 213 F.3d at 1281.

      He further argues that the surveillance failed to comply with our precedent in

United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990) (delineating

requirements for domestic video surveillance). But that case is not on point: Mesa-

                                          -6-
Rincon involved the installation of a video camera inside a business, a place where

there was a reasonable expectation of privacy. Its requirements do not pertain to

surveillance of places where, like here, there is no reasonable expectation of privacy.

                                 III. Conclusion

      Finding no error in the district court’s reliance on our opinion in Jackson,

we AFFIRM its judgment.

                                                ENTERED FOR THE COURT

                                                Timothy M. Tymkovich
                                                Chief Judge




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