Lead Opinion
[¶1.] Law enforcement installed a pole camera (without a warrant) on a public street light to record defendant’s activities outside of his home, beginning the same day the officers received a tip that, a known drug dealer had been traveling to defendant’s home to obtain drugs. The camera recorded defendant’s activities out
Background
[¶2.] On January 23, 2015, Elizabeth Carlson,, an agent with the South Dakota Division of Criminal Investigation, (DCI), informed Detective Dana Rogers of the Brookings Police Department that a person living in the Brookings area may be dealing large quantities of marijuana. Agent Carlson relayed to Detective Rogers that an informant had told her that a man named Brady Schutt would travel from Huron to Joseph Jones’s residence in Brookings to pick up large quantities of marijuana to take back to Huron to, sell. Agent Carlson also informed Detective Rogers that Schutt drives a red GMC pickup. Detective Rogers confirmed that Schutt drove a red GMC pickup and noted the license plate number.'He also verified Jones’s address through a computer search. Jones lives in a trailer within and near the entrance to the Lamplighter Village Trailer Park.
[¶3.] The same day he received the tip from Agent Carlson, Detective Rogers arranged for a City employee to install a pole camera on a public street light across from Jones’s trailer. Detective Rogers did not obtain a warrant for the camera. The employee installed the pole camera inside a pole camera box approximately two to four feet below the top of the light. The box, but not the camera, was visible to the public. The camera recorded a street, and Jones’s residence and front yard. Detective Rogers testified that he could use a zoom feature to get the camera’s focus closer to Jones’s residence, but the footage would become blurry and distorted, preventing a clear picture. The pole camera did not have night vision but recorded throughout the night. The night recordings would capture vehicles with lights that drove up to the residence or under the street light. The night recordings would also display shadows of people walking, depending on how clear the evening was. The State claimed that the camera did not record inside Jones’s residence. But there is no recording to review to determine the accuracy of that information. The State did not retain the recordings.
[¶4.] From January 23, 2015 to March 19, 2015, the pole camera continuously recorded activity outside of Jones’s residence. The camera sent a live feed to a server located in Pierre, South Dakota, at DCI and to a mobile phone accessible by Detective Rogers. Detective Rogers could view the recording live or he could look at previously-recorded footage to' view what had already taken place. Detective Rogers could review a day’s worth of activity in approximately 10 to 11 minutes by fast forwarding through the footage. He explained that he could fast forward when nothing happened, and if he observed movement, he could play the recording in real time.
[¶5.] The pole camera documented when Jones’s vehicle was at the residence, when it left, how long it was gone, when visitors came and where they parked, how long they stayed, when pedestrians walked by, etc. Detective Rogers noted the instances when Jones was gone for an extended time. Detective Rogers also observed vehicles associated with known drug offenders, including the red GMC, arrive several times at Jones’s residence, all hours of the
[¶6.] On March 6, Detective Rogers reviewed the footage and observed Jones place a black or dark-colored trash bag into his vehicle and drive a short distance and return. Detective Rogers assumed Jones placed the bag in the community dumpster. Detective Rogers and Agent Scot Hawks drove to the dumpster, opened what appeared to be the bag Jones placed in his vehicle, and identified a package addressed to Jones. Ultimately, Detective Rogers retrieved items from the trash bag indicating the use or possession of marijuana.
[¶7.] On March 11, Detective Rogers again observed Jones load something into his vehicle and drive a short distance and return. Detective Rogers and another officer returned to the dumpster and seized trash bags containing objects linking the trash bags to Jones. In those bags, Detective Rogers also found partial marijuana blunts and two marijuana stems (one stem tested presumptively positive for marijuana).
[¶8.] On March 11, Detective Rogers used the information learned from the pole camera to prepare an affidavit for a search warrant to install a GPS tracking device on two vehicles at Jones’s residence. The circuit court signed the warrant, and Detective Rogers installed the GPS tracking devices. Then on March 13, again using the information obtained from the pole camera, Detective Rogers submitted a second application for a search warrant to search Jones’s residence. The circuit court signed the warrant. On March 19, 2015, Detective Rogers and others executed the search warrant and subsequently arrested Jones. The State charged Jones with multiple drug-related offenses.
[¶9.] Jones moved to suppress the evidence obtained during the search, arguing that the State’s use of the pole camera violated the Fourth Amendment. The circuit court held a hearing. During the hearing, the court noted, “as a preliminary matter, ... the majority of the information presented by Officer Rogers in the affidavits to request GPS monitoring and a search of [Jones’s] residence ... w[as] from information obtained through the use of the pole camera identified in this matter.” The court informed counsel “that if the information provided in the search warrant affidavits regarding the pole camera, if that information was removed from the affidavits, that there would not be sufficient probable cause to issue the warrants.” The court further indicated that “any evidence obtained as a result of those search warrants would not be used pursuant to the Wong Sun fruit of a poisonous tree decision.”
[1110.] In regard to the merits, the court found significant that the pole camera “did not track the whereabouts of any of the residents other than the fact that they were either in the mobile home or outside the mobile home.” The court found no difference between an officer’s ability to conduct a stakeout outside a person’s residence and the use of technology in the officer’s place. The court further found compelling that cameras “have become a common occurrence” in public places. The court concluded society would not recognize that one has an unfettered expectation of privacy once one steps outside his or her home.
[1111.] The court issued findings, conclusions, and an order denying Jones’s motion to suppress. It held “[t]hat there was no physical invasion of [Jones’s] residence or privacy, and the use of physical observation in this case, via a pole camera, was conducted on public property, and without trespassing onto [Jones’s] property, and thus, no Fourth Amendment violation has
Standard of Review
[1112.] We review a denial of a motion to suppress de novo. State v. Thunder,
Analysis
[¶13.] Jones likens this case to this Court’s decision in State v. Zahn,
[¶14.] The Fourth Amendment gives people the right to be secure in their persons, houses, -papers, and effects against, unreasonable searches and seizures, and shall not be violated. U.S. Const, amend. IV; S.D. Const, art. VI, § 11.. Historically, “Fourth Amendment jurisprudence was tied to common-law trespass”—a search occurs when the government physically intrudes upon a person’s property. United States v. Jones,
[¶15.] Before we determine whether Jones had a reasonable expectation of privacy that society would recognize as reasonable, we address the fact that the pole camera recorded Jones’s activities in an area exposed to the public. Long ago, the United States Supreme Court said, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz,
[¶16.] In line with Katz and Ciraolo, this Court upheld an officer’s use of a zoom-lens camera to take photographs of marijuana observed by the officer’s naked eye while flying over defendant’s residence. State v. Vogel,
[¶17.] But in 2012, the United States Supreme Court decided Jones,
[¶18.] Justice Scalia, authoring the Opinion of the Court, noted that although “our cases suggest that such visual observation is constitutionally permissible!!, i]t may be that achieving the same result [ (targeted, long-term surveillance) ] through electronic means, without an accompanying trespass, is an unconstitutional invasion of. privacy!!.]” Jones,
[¶19.] Justice Sotomayor wrote a separate concurring opinion noting the privacy concerns evident in “the Government’s unrestrained 'power to assemble data that reveal private aspects of identity[.]” Id. at 416,
[¶20.] Following Jones, several 'courts have examined whether long-term video surveillance constitutes a search. The circumstances of the eases vary but can be categorized as cases involving video surveillance of the activities: (1) outside a business, (2) outside a home other than the defendant’s, (3) in a public place not including the defendant’s home, and (4) outside the defendant’s home. In those cases involving video surveillance of the activities outside the defendant’s home, some courts have declined to consider either the aggregate nature of the surveillance or the fact that the public does not get exposed to the aggregate of another’s comings and goings. Instead, these decisions rely on the -reasoning in Katz, Knotts, and Ciraolo, to conclude that what- one exposes to the public is not protected' and that law enforcement can augment their sensory faculties with technology. See, e.g., United States v. Houston,
[¶21.] In the other categories of cases, courts concluded that no search occurred based on controlling precedent in the respective circuit or because the area surv-eilled was not a home or the defendant’s home. State v. Duvernay, — N.E.3d -, No. 1-16-62,
[¶22.] Nevertheless, the above decisions by federal courts of appeal and other lower courts do not bind this Court’s examination of the question whether Jones had a reasonable expectation of privacy that society would recognize as reasonable. See State v. Greger,
[¶23.] Indeed, what privacy expectations were reasonable in 1986 when Cir-aolo was decided, in 1983 when Knotts was decided, or in 1967 when Katz was decided do not alone dictate what expectations are reasonable today. “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.” Kyllo v. United States,
[¶24.] Even so, the dissent further argues that “this Court should' not follow Justice Alito’s concurring opinion.” Infra ¶ 59. It quotes a sentence from Kyllo that the “Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of information obtained.”
[¶25.] But this case does not concern a physical trespass; therefore, the Katz analysis controls. Indeed, the majority in Jones recognized that “resort must be had tó Katz analysis” when the Court “may have to grapple with” the question whether achieving visual observation through electronic means constitutes a search under the Fourth Amendment “in some future case where a classic trespas-sory search is not involved[.]”
[¶26.] Because today’s case' requires this Court to “grapple with these ‘vexing problems’ ” not answered in Jones or any other United States Supreme Court case, we apply the two-part Katz test to the circumstances of this case. See id. at 412,
1. Subjective Expectation of Privacy
[1127.] The State claims Jones did not have a subjective expectation of privacy because Jones’s activities were “vividly and continuously exposed to the public,” In the State’s,view, the pole camera merely captured what any person standing on the street could observe with a naked eye. The State also contends that Jones did not expect his actions to be private because he took no effort to obstruct the public’s view of his activities. The dissent agrees, asserting that Jones did “not even claim—let alone prove—-that [he] subjectively believed his activities in front of his home were concealed from public observation.” Infra ¶ 54.
[¶28.] Yes, Jones did not claim that he had an expectation of privacy in each individual activity outside his home. Nor did he assert that he attempted to conceal the front of his home from public observation. But he likens his subjective expectation of privacy to that argued by the defendant in Zahn. Jones claims that he had a subjective expectation of privacy in-the whole of his movements. In particular,.he asserted that he expected to be free from 24/7 targeted, long-term observation of. his comings and goings from his home,- his guests’ comings and goings, the types of cars coming and going from his home, etc.
[¶29.] To adopt the dissent’s view would require us to ignore the method of surveillance used in' this case and look only to whether Jones attempted to conceal every activity outside his home. Such a constricted analysis would ignore that traditional law enforcement surveillance techniques cannot accumulate the vast' array of information that targeted, long-term video surveillance can capture. The information gathered through the use of targeted, long-term video surveillance will necessarily include a mosaic of intimate details of the person’s private life and associations, At a minimum, it could reveal who enters and exits the home, the time of their arrival and departure, the license plates of their cars, the activities of the occupant’s children and friends entering the home, information gleaned from items brought into the. home-revealing where the occupant shops, how garbage is removed, what service providers are contracted, etc.
[¶30.] Notably, the United States Supreme Court in Ciraolo identified “future electronic devélopments and” and noted “the potential for electronic interference with private communications[.]”
[¶31.] We conclude that Jones had a subjective expectation of privacy based on the amassed nature of Detective Rogers’s surveillance of Jones’s activity. Indeed, the expectation of privacy changes when officers are able to “eapture[ ] something not actually exposed to public view—the aggregate of all of [the defendant’s] coming and going from the home, all of his visitors, all of his cars, all of their.cars, and all of the types of packages or bags he carried and when.” Garcia-Gonzalez,
2. Reasonable Expectation of Privacy
[¶32.] We next consider whether Jones’s subjective expectation of privacy was reasonable. “After all, his personal desire for privacy alone, no matter how earnestly held, does not trigger the protections of the Fourth Amendment.” Zahn,
[¶33.] But Jones is not asserting an unfettered right to expect privacy in his movements in public. He is claiming that society would not give law enforcement an unfettered right to use targeted, long-term video surveillance without any regard for or protection of ⅝. citizen’s right to priyacy. This type of surveillance is different than law enforcement’s warrantless use of pole cameras during Hot Harley Nights in downtown Sioux Falls or during the Stur-gis Motorcycle Rally. In Jones’s view, judicial oversight by requiring officers to obtain a warrant ensures that officers do not violate a citizen’s Fourth Amendment right to privacy when using a pole camera to observe activity outside a citizen’s residence.
[¶34.]- We agree. The government action in this case is markedly'different than the ■government actions in Katz, Ciraolo, and Knotts. Four United States Supreme Court justices recognized as much in comparing the use of a GPS tracking device and 18th-century situations: “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.” Jones,
[¶35.] The indiscriminate nature in which law enforcement can intrude upon citizens with warrantless, long-term, and sustained video surveillance raises substantial privacy concerns, concerns not present in Knotts, Ciraolo, and Vogel. See Garcia-Gonzalez,
[¶36.] On the contrary] the pole camera is not a mere video camera and most certainly allowed law enforcement to enhance their senses. The pole camera captured Jones’s activities outside his home twenty-four hours a day, sent the recording to á distant location, and allowed the officer to view it at any time and to replay moments in time. A mere video camera does not accomplish this. More importantly,' this type of surveillance does not grow weary, or blink, or have family, friends, or other duties to draw its attention. Much like the tracking of public movements through GPS monitoring, long-term video surveillance of the home will generate “a wealth of detail about [the home occupant’s] familial, political, professional, religious, and sexual associations.” See Jones,
[¶37,]- As we recognized in Zahn, “unfettered use of surveillance technology could fundamentally alter the relationship between our government and its citizens[.]”
[¶38.] This does not mean that “the advance of technology would one-sid-edly give criminals the upper hand.” Houston,
[¶39.] In response, the dissent insists that “the best solution to such concerns is legislative—not judicial.” Infra ¶ 62. It claims this opinion holds that the United States Constitution prohibits “a two-month surveillance of the front of a residence from a public vantage point.” Infra ¶ 62 n.ll; accord infra ¶ 52. Thus, according to the dissent, “[i]f the controlling law is to change, such change should come either from the United States Supreme Court or the South Dakota Legislature.” Infra ¶ 63.
[¶40.] On the contrary, this case concerns long-term, remote surveillance, and there is no controlling law on that question. More importantly, the question whether a search occurred in this case in violation of the Fourth Amendment is judicial—not legislative. The South Dakota Legislature has not yet enacted legislation governing law enforcement’s use of pole cameras for surveillance; therefore, this case implicates the Katz test. See Jones,
[¶41.] Even so, today’s case does not prevent the Legislature from “regulating law enforcement’s use of long-term surveillance.”. Infra ¶ 62. For example, in response to decisions by the United States Supreme Court interpreting the Fourth Amendment, Congress has enacted ■ comprehensive legislation. See Jones,
[¶42.] Instead, we decide today’s case on the circumstances presented—the war-rantless use of a pole camera to surveil a suspect’s activities outside his residence for two months, which camera law enforcement installed moments after receiving a tip regarding alleged criminal activity. As Justice Alito recognized, when the.State has not enacted legislation, “[t]he best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of [the unregulated technology] in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Jones,
[¶43.] We conclude that Detective Rogers’s warrantless use of a pole camera, specifically installed to chronicle and observe Jones’s activities outside his residence from January 23 to March 19, constituted a search under the Fourth Amendment—“its use violates an expectation of privacy that society is prepared to recognize as reasonable.” See Zahn,
3. Good Faith Exception to the Exclusionary Rulé
[¶44.] “[A] warrantless search and seizure is per se unreasonable unless it falls within one of the jealously and carefully drawn, strictly circumscribed exceptions to the warrant requirement.” Sweedland,
[¶45.] The Fourth Amendment does not mandate exclusion when officers conduct an illegal search. State v. Sorensen,
[¶46.] Jones claims it would be unjust to apply the rule here. He argues that the State did not rely on or mention the good faith exception to. the .exclusionary rule at the suppression hearing, and the court did not examine the exclusionary rule or good faith exception in its oral ruling. Jones is correct. The good faith exception first appeared in the State’s proposed -findings of fact and conclusions of law. Jones concedes he did not specifically object to the State’s proposed application of the good faith exception. Instead,-he asks this Court to enforce the circuit court’s oral statement at the hearing-that the evidence obtained would be suppressed if-the search violated the Fourth Amendment, This we decline to do. The question whether to apply the good faith exception to the exclusionary rule was before the circuit court in the State’s proposed findings and conclusions; and the court adopted the State’s request to apply the exception. Jones directs us to no law; that precludes the circuit court from applying the rule simply because the parties did not discuss it at the suppression hearing.
[¶47.] “We examine the good faith exception de novo.” Id. ¶ 9,
• [t]he deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or -in their future counterparts, . a greater degree of care toward the rights of an accused.
[¶48,] Here it is troubling that Detective Rogers had the pole camera installed solely in response to a tip that Jones may be dealing large quantities of marijuana. Detective Rogers did not independently acquire suspicion of criminal activity. He simply received the tip and installed the pole camera to be directed at Jones’s trailer. But this is not to say Detective Rogers acted in bad faith or that suppression of the evidence would deter law enforcement wrongdoing. The circuit court found that "Detective Rogers was not aware of any prior uses of pole cameras by law enforcement where a search warrant was required prior to its installation.” Based on the facts of this case, Detective Rogers acted reasonably, and the circuit court did not err when it denied Jones’s motion to suppress based on the good faith exception to the exclusionary rule.
[¶49.] Reversed in part and affirmed in part.
[¶50.]
[¶51.]
Notes
. Kyllo states that exploration, of a home conducted with a device not in use by the general public is a presumptively unreasonable search.
, The State also argues that affidavits filed in support of the search warrants remain sufficient after removing the information gained via the pole cameras, At the suppression hearing, the circuit court said that it would find the affidavits insufficient if the evidence from the pole camera was removed from the affidavits. The State did not file a notice of review challenging the court’s decision on this, That . waives the issue before this Court.
Concurrence Opinion
(concurring in the result). .
[¶52.] Although I agree the circuit court’s denial of Jones’s motion to suppress should be affirmed, I dissent from the Court’s analysis. Today, the Court holds that the U.S. Constitution requires law enforcement to obtain a search warrant before conducting “long-term surveillance” (in this case, two-month video surveillance) of the front of a residence from a public vantage point. Yet, the United States Supreme Court “has to date not deviated from the understanding that mere visual observation does not constitute a search.” United States v. Jones,
[¶53.] The State may not unreasonably search or seize an individual. U.S. Const, amend. IV; S.D. Const, art. VI, § 11. Under the Fourth Amendment, “the ‘police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure!)]” Terry v. Ohio,
[¶54.] This case does not involve a physical trespass into a protected area; therefore, we must determine whether Jones exhibited a subjective expectation of privacy that is objectively reasonable. Under the first prong, Jones has not established that he subjectively believed his activities in front of his home—in particular, dumping his trash—were concealed from public view. As the State points out, “[Jones’s] trailer was not obstructed by any fence, gate, or anything else that blocked its view from the public street or pole camera.” See United States v. Bucci,
[¶55.] Even if we assume that Jones subjectively believed his activities in front of his home were concealed from public observation, such a belief would not be objectively reasonable. The United States Supreme Court has long held that “the mere fact that an individual has taken measures to restrict some views of his activities [does not] preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.” California v. Ciraolo,
[¶56.] Despite the Jones majority’s unambiguous affirmation that mere visual observation does not constitute a search, this Court now claims “there is no controlling
[¶57.] The Court’s claim that the constitutionality of long-term surveillance is an open question, supra ¶ 34, is incorrect. The Court supports this claim by citing but not quoting Jones,
[¶58.] More importantly, the notion that observation through electronic, sense-enhancing means may be a search under the Fourth Amendment is hardly a new concept; the Supreme Court said the same in Kyllo,
[¶59.] Even if the Jones majority’s reference to Kyllo’s electronic-means analysis could be read as indicating the constitutionality of long-term surveillance is an open question, this Court should not follow Justice Alito’s concurring opinion.
[¶60.] So contrary to the Court’s claim that there is no controlling authority, supra ¶ 40, this case is squarely controlled by, e.g., Kyllo and Katz. And under these binding opinions, the question that should be addressed in this case is whether the device used by the State is “in general public use” and whether, the State used that device “to explore details of the home that would previously have been, unknowable ■without physical intrusion[.]” Kyllo,
[¶61.] Moreover, the State did not use the video camera “to explore details of the home that would previously have béen unknowable without physical intrusionQ” Id. at 40,
[¶62.] I agree that the thought of a surveillance camera on every utility pole may be concerning to many. But contrary to the Court’s view, stretching the Fourth Amendment in contravention of controlling precedent is not the answer. If the Court’s fear of an “Orwellian ... surveillance society,” supra ¶ 37, actually becomes reality, the people of South Dakota—through their elected representatives in the Legislature—are more than capable of regulating law enforcement’s use of long-term surveillance.
[¶63.] Existing, controlling precedent is clear: mere visual observation does not
[¶64.]
. According to the Court, Jones "claims that he had a subjective expectation of privacy in the whole of his movements. In particular, he asserted that he expected to be free from 24/7 targeted, long-term observation[.]” Supra ¶ 28. But this claim is unsupported. Jones’s argument to this Court consists almost entirely of analogizing this case to State v. Zahn,
. The Court suggests Justice Alito’s view is controlling because according to the Court, Justice Sotomayor "endorsed” Justice Alito’s writing. Supra ¶¶ 19, 25. Yet, Justice Sotoma-yor did not join Justice Alito’s writing. In fact, she explicitly joined the majority opinion, which declined to reach the issues raised by Justice Alito. Jones, 565 U.S. at 418,
. The Court dismisses Kyllo, which was decided in 2001, as a case decided "years ago.” Supra ¶ 22. United States Supreme Court opinions do not have expiration dates. Moreover, in the very next paragraph, the Court relies on Kytlo for the Court’s central proposition—that the advance of technology affects the public's expectation of privacy. See supra ¶ 23.
.The Court cites State v. Zahn,
. If the need for a warrant depends on the product of surveillance, law enforcement will not know whether a warrant is required until after the surveillan’ce has been conducted. In practice, then, law enforcement should seek a ' warrant for any surveillance from a public vantage point lest this Court subsequently consider the surveillance too successful,
. The Court claims "the pole camera is not a mere video camera” because of how it was used: "The pole camera captured Jones’s activities outside his home twenty-four hours a day, sent the recording to a distant location, and allowed the officer to view it at any time and to replay moments in time,” Supra ¶ 36. Yet as noted above, the camera at issue was not equipped with night vision—its capabilities were subject to the same limitations as the human eye—so the effective observation ‘ time Was not 24 hours per day. Moreover, contrary to the Court’s dated view of technology, streaming video is in widespread use in a variety of applications. From Netflix to smart homes and wireless nanny cams, watching live or recorded images on demand (including the ability to "replay moments in time[,]’’ supra ¶ 36) from a distant location is commonplace,
. The Court dismisses the cases in this list that were decided prior to United States v. Jones. See supra ¶¶ 16-17. The Court premises its dismissal of the pre-Jones cases on the erroneous conclusion that Jones changed existing precedent. But as noted above, Justice Alito’s writing received only four votes—not five. Supra ¶ 56 n.4. Simply put, Jones did not change, the conclusion that a person does not have a reasonable expectation of privacy in
The Court dismisses even the cases that were decided after Jones because they do not address "the aggregate nature of the surveillance[.]” Supra ¶ 20. Yet, the Court of Appeals for the Sixth Circuit explicitly "rejected the claim that the length of the period of monitoring [can make] surveillance constitutionally unreasonable!.]” United States v. Powell,847 F.3d 760 , 773 (6th Cir. 2017). Moreover, the Court's argument begs the question whether the aggregate nature of public surveillance is relevant under current Fourth Amendment jurisprudence. These cases do not address aggregation because as noted in this footnote, the Jones majority did not hold that aggregation is relevant. Given the Court’s inability to identify even a single opinion that holds as it does, the problem lies in the Court's assumption that aggregation is relevant rather than in the analysis of the numerous authorities cited above.
. For example, the Legislature could restrict the duration of warrantless surveillance to two weeks (or some other arbitrary length.of time).
. The Court insists that it does not "prevent the Legislature from regulating long-term surveillance, including surveillance for longer than two months.” Supra ¶ 41. But this con-clusory claim is unsupported. The Court’s opinion repeatedly states the issue as deciding whether "long-term surveillance” is a search within the meaning of the U.S. Constitution. See supra ¶¶ 28-29, 33-36, 40. It is an elementary principle of constitutional law that the South Dakota Legislature has no power, to unilaterally alter the meaning of the U.S. Constitution. According to the Court, the U.S. Constitution proscribes a two-month surveillance of the front of a residence from a public vantage point. Because the U.S. Constitution provides a floor of protection, the Legislature could not possibly authorize warrantless surveillance of two months’ duration or longer— not even if every person in South Dakota thought such surveillance was reasonable.