UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRAVIS TUGGLE, Defendant-Appellant.
No. 20-2352
United States Court of Appeals For the Seventh Circuit
DECIDED JULY 14, 2021
ARGUED MAY 12, 2021
Appeal from the United States District Court for the Central District of Illinois. No. 16-cr-20070 — James E. Shadid, Judge.
Before FLAUM, HAMILTON, and BRENNAN, Circuit Judges.
The setting described above is not yet a total reality. Nonetheless, we are steadily approaching a future with a constellation of ubiquitous public and private cameras accessible to the government that catalog the movements and activities of all Americans. Foreseeable expansion in technological capabilities and the pervasive use of ever-watching surveillance will reduce Americans’ anonymity, transforming what once seemed like science fiction into fact. Constitutionally and statutorily mandated
The Framers of the Constitution sought “to place obstacles in the way of a too permeating police surveillance.” United States v. Di Re, 332 U.S. 581, 595 (1948). That central aim animated their efforts, embodied in the
To grapple with the enhanced technological capacity of law enforcement investigations, the Supreme Court followed Justice Harlan‘s concurrence in Katz v. United States, 389 U.S. 347 (1967), and expanded its understanding of
Despite its best intentions, this expectations-based Katz test has paved the way for a perilous circularity for new technology. Specifically, our current formulation of a
As long as the government moves discreetly with the times, its use of advanced technologies will likely not breach society‘s reconstituted (non)expectations of privacy. The upshot: the Katz test as currently interpreted may eventually afford the government ever-wider latitude over the most sophisticated, intrusive, and all-knowing technologies with lessening constitutional constraints.
These observations bring us to the instant case, a harbinger of the challenge to apply
Tuggle‘s case presents an issue of first impression for this Court: whether the warrantless use of pole cameras to observe
Ultimately, bound by Supreme Court precedent and without other statutory or jurisprudential means to cabin the government‘s surveillance techniques presented here, we hold that the extensive pole camera surveillance in this case did not constitute a search under the current understanding of the
I. Background
Between 2013 and 2016, several law enforcement agencies investigated a large methamphetamine distribution conspiracy in central Illinois that resulted in Tuggle‘s prosecution. The focus of this appeal is the government‘s warrantless use of three video cameras affixed to nearby utility poles to monitor Tuggle‘s residence.
The government installed three cameras on public property that viewed Tuggle‘s home. Agents mounted two cameras on a pole in an alley next to his residence and a third on a pole one block south of the other two cameras. The first two cameras viewed the front of Tuggle‘s home and an adjoining parking area. The third camera also viewed the outside of his home but primarily captured a shed owned by Tuggle‘s coconspirator and codefendant, Joshua Vaultonburg.
Together, the three cameras captured nearly eighteen months of footage by recording Tuggle‘s property between 2014 and 2016. Law enforcement agents installed the first camera in August 2014, the second in December 2015, and the third in September 2015. The officers left the three cameras on their respective poles until March 2016.
The cameras offered several advantages to the government‘s investigation of the drug conspiracy. While in use, the cameras recorded around the clock. Rudimentary lighting technology improved the quality of ovеrnight footage, although the cameras did not have infrared or audio capabilities. Law enforcement agents could also remotely zoom, pan, and tilt the cameras and review the camera footage in real time, though the footage captured only the exterior of Tuggle‘s house. While officers frequently monitored the live feed during business hours, they could later review all the footage, which the government stored at the Federal Bureau of Investigation office in Springfield, Illinois. More generally, the cameras had the practical advantage of enabling the government to surveil Tuggle‘s home without conspicuously deploying agents to perform traditional visual or physical surveillance on the lightly traveled roads of Tuggle‘s residential neighborhood.
The cameras provided substantial video evidence that supported the government‘s eventual indictment of Tuggle (and others). The officers tallied over 100 instances of what they suspected were deliveries of methamphetamine to Tuggle‘s residence. Camera footage depicted individuals arriving at Tuggle‘s home, carrying various
Relying heavily on the video evidence, the officers secured and executed search warrants on several locations, including Tuggle‘s house. A grand jury subsequently indicted him on two counts: (1) a violation of
Before trial, Tuggle moved to suppress the evidence obtained from the pole cameras, arguing that the use of the cameras constituted a warrantless search in violation of the
This timely appeal followed.
II. Discussion
The issue before us on appeal is whether the district court correctly denied Tuggle‘s motion to suppress. That issue calls for a “dual standard of review” under which “we review legal conclusions de novo but findings of fact for clear error.” United States v. Edgeworth, 889 F.3d 350, 353 (7th Cir. 2018) (citation omitted).
The
The Supreme Court has developed two distinct paths to identify a search: “[a] search occurs either when the government physically intrudes without consent upon ‘a constitutionally protected area in order to obtain information,’ or ‘when an expectation of privacy that society is prepared to consider reasonable is infringed.‘” United States v. Thompson, 811 F.3d 944, 948 (7th Cir. 2016) (some internal quotation marks and citations omitted) (first quoting United States v. Jones, 565 U.S. 400, 407 (2012); and then quoting United States v. Karo, 468 U.S. 705, 712 (1984)). The first path, a physical intrusion, is not relevant because the parties agree
We therefore focus on the second path to finding a search, a government infringement upon an expectation of privacy that society is prepared to consider reasonable. This path derives from Justice Harlan‘s famous concurrence in Katz, which determined that “a person has a constitutionally protected reasonable expectation of privacy” where that person “exhibit[s] an actual (subjective) expectation of privacy ... that society is prepared to recognize as ‘reasonable.‘” 389 U.S. at 360-61 (Harlan, J., concurring); see also Smith v. Maryland, 442 U.S. 735, 740 (1979) (adopting Justice Harlan‘s Katz test). The Supreme Court later clarified that ”Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986). As “[t]he party seeking suppression,” Tuggle “bears the burden of establishing that he had a reasonable expectation of privacy in what was searched.” United States v. Scott, 731 F.3d 659, 663 (7th Cir. 2013).
On appeal, Tuggle presents two different, but related, arguments that the government‘s use of the three pole cameras to monitor the activities in front of and outside his house constituted a search under the
A. The Isolated Use of Cameras
Tuggle first frames the issue as “whether the use of warrantless pole camera surveillance of Mr. Tuggle‘s private residence violated his
Framed as such, the answer is clearly no. At the outset, we note that Tuggle likely has not, at Katz‘s first prong, “exhibited an actual (subjective) expectation of privacy” in the goings-on outside of his home. Katz, 389 U.S. at 361 (Harlan, J., concurring). Nothing in the record suggests that Tuggle erected any fences or otherwise tried to shield his yard or driveway from public view, which might have signaled he feared the wandering eye or camera lens on the street. We therefore do not confront the more challenging situation in which the government intentionally places cameras to see over a fence to observe a private residence in a manner unavailable to a ground-level passerby. See generally United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (concluding that defendant “manifested the subjective expectation of privacy in his backyard” because “he erected fences around [it], screening the activity within from views of casual observers,” and “the area monitored by the camera fell within the curtilage of his home, an area protected
As to that objective prong — those privacy expectations society is willing to accept as reasonable — “[t]he expectation of privacy does not extend to ‘[w]hat a person knowingly exрoses to the public, even in his own home or office.‘” Thompson, 811 F.3d at 949 (quoting Katz, 389 U.S. at 351). The Supreme Court has made clear that “[t]he
In this case, Tuggle knowingly exposed the areas captured by the three cameras. Namely, the outside of his house and his driveway were plainly visible to the public. He therefore did not have an expectation of privacy that society would be willing to accept as reasonable in what happened in front of his home. See Evans, 27 F.3d at 1228. The
Tuggle‘s argument that the cameras transformed otherwise lawful visual surveillance into unconstitutional technological surveillance doеs not undermine our conclusion that the isolated use of pole cameras here did not constitute a search. Specifically, Tuggle argues that “[w]hile the ‘fruits’ of the pole cameras could have been achieved by traditional visual or physical surveillance, the use of technology change[d] the reasonableness of the expectation of privacy.” See Jones, 565 U.S. at 412 (“It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy ....“).
To be sure, the Supreme Court has cautioned that the government‘s use of some technologies falls within the ambit of the
The prototypical example of impermissible technology for
Despite the Kyllo standard, the Supreme Court has routinely approved of law enforcement officers’ use of cameras to aid investigations. In Dow Chemical Co. v. United States, 476 U.S. 227 (1986), the Supreme Court held “that the taking of aerial photographs of [a 2,000-acre] industrial plant complex from navigable airspace is not a search prohibited by the
It may well be ... that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional concerns. Although they undoubtedly give [the government] more detailed information than naked-eye views, they remain limited to an outline of the facility‘s buildings and equipment.
Id. at 238. To that end, the Court noted that “[t]he mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems” because the aerial photography cameras did not raise the “far more serious questions” presented by a device that could “penetrate walls or windows so as to hear and record confidential discussions.” Id. at 238-39.
On the same day it issued Dow Chemical, the Supreme Court held in California v. Ciraolo that law enforcement did not violate the
Despite the prevalence of cameras in today‘s society, we have not identified in our own precedent any cases in which we squarely evaluated the constitutionality of the government‘s use of remote cameras,
We likewise conclude that, under a straightforward application of Kyllo, the isolated use of pole cameras here did not run afoul of
While the video cameras in this case “undoubtedly g[a]ve [the government] more detailed information than naked-eye views,” they did not do so to a degree that “give[s] rise to constitutional problems.” See Dow Chem., 476 U.S. at 238. The government only used the cameras to identify who visited Tuggle‘s house and what they carried, all things that a theoretical officer could have observed without a camera. Cf. Thompson, 811 F.3d at 950 (“The video cameras in this case captured nothing more than what the informant could see with his naked eye.“). That the government could replay the footage and remotely control the camera does not affect our analysis because these features are a far cry from the “highly sophisticated surveillance equipment not generally available to the public” that animated the Dow Chemical decision. 476 U.S. at 238. The cameras did not “penetrate walls or windows so as to hear and record confidential” information, id. at 239, nor did they “explore details of the home that would previously have been unknowable without physical intrusion,” Kyllo, 533 U.S. at 40.
In sum, the government used a commonplace technology, located where officers were lawfully entitled to be, and captured events observable to any ordinary passerby
B. The Prolonged, Round-the-Clock Use of Cameras
The more challenging question is Tuggle‘s second theory of a
1. The Mosaic Theory Generally
In its simplest form, the mosaic theory attempts to capture the idea that the “government can learn more from a given slice of information if it can put that information in the context of a broader pattern, a mosaic.” Matthew B. Kugler & Lior Jacob Strahilevitz, Actual Expectations of Privacy, Fourth Amendment Doctrine, and the Mosaic Theory, 2015 Sup. Ct. Rev. 205, 205 (2015). Thus, it “holds that, when it comes to people‘s reasonable expectations of privacy, the whole is greater than the sum of its parts.” Id.; see also David Gray & Danielle Keats Citron, A Shattered Looking Glass: The Pitfalls and Potential of the Mosaic Theory of Fourth Amendment Privacy, 14 N.C. J. L. & Tech. 381, 415 (2013) (“The mosaic theory .... recognizes that, although a collection of dots is sometimes nothing more than a collection of dots, some collections of dots, when assessed holistically, are A Sunday Afternoon on the Island of La Grande Jatte.“); Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311, 313 (2012). For present purposes, we ground our discussion in these high-level articulations of the mosaic theory although we note that justices, judges, and academics vary in how they define and (even whether they explicitly) refer to the theory and its principles.
Some judges and justices have relied on mosaic-like reasoning, but the Supreme Court has not bound lower courts to apply the mosaic theory. The theory first emerged in
[W]e hold the whole of a person‘s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.
Id. at 560. The D.C. Circuit continued:
Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by аny single visit, as does one‘s not visiting any of these places over the course of a month. The sequence of a person‘s movements can reveal still more; a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another‘s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.
Id. at 562 (footnote omitted).
Reviewing the issue of GPS monitoring under a different name, United States v. Jones, a majority of the Supreme Court affirmed Maynard on a narrow “property-based” theory, see 565 U.S. at 404-11, declining to rely on the mosaic theory, see id. at 412-13. Specifically, the Jones majority held that the government had effected a physical trespass on private property by attaching the device on the defendant‘s vehicle without a warrant. Id. at 404-07.
Concurring in the judgment, however, Justice Alito — joined by Justices Ginsburg, Breyer, and Kagan — endorsed the mosaic theory‘s logic and rejected the majority‘s stringent reliance on a trespass theory. In Justice Alito‘s view, the GPS monitoring crossed a constitutional line, wherever that line might be:
[R]elatively short-term monitoring of a person‘s movements on public streets accords with expectations of privacy that our society has recognized аs reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society‘s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual‘s car for a very long period.
Id. at 430 (Alito, J., concurring) (citation omitted). As he wrote, “the line was surely crossed before the 4-week mark” of the government‘s tracking of “every movement that [the defendant] made in the vehicle he was driving.” Id. While describing Justice Alito‘s Jones concurrence as “cryptic,” scholars have
read his opinion to “echo[] the D.C. Circuit‘s mosaic approach in Maynard.” Kerr, The Mosaic Theory, supra, at 327.
Writing separately, Justice Sotomayor joined the majority but similarly asserted
I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one‘s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques.
Id. at 416. As with Justice Alito‘s concurring opinion, scholars argue that “[t]his passage clearly echoes the mosaic theory.” Kerr, The Mosaic Theory, supra, at 328.
Drawing on the reasoning of these Jones concurrences, some scholars have argued that Chief Justice Roberts‘s unanimous opinion in Riley v. California, 573 U.S. 373 (2014), further illustrates support for the mosaic theory. Riley held that the police may not, without a warrant, search digital information on an arrestee‘s seized phone. Id. at 386. “Explaining why the arrestee‘s wallet could be searched but his cell phone could not, Roberts offered an argument that is much akin to the mosaic theory: . . . [‘]The sum of an individual‘s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.[‘]” See Kugler & Strahilevitz, supra, at 208 (quoting Riley, 573 U.S. at 394).
Most recently, a five-justice majority of the Supreme Court held in Carpenter v. United States that the government‘s collection of a defendant‘s cell-site location information (“CSLI“) (the time-stamped records a mobile phone makes every time it connects to radio antennas known as cell sites) for a period of 127 days amounted to a search under the
Despite garnering passing endorsement from some—if not most—of the justices in the various opinions in Jones, Riley, and Carpenter, the theory has not
2. Prolonged Pole Camera Surveillance in Other Courts
Having noted the reluctance of some courts to adopt the mosaic theory, we now turn to the specific issue at hand: the constitutionality of prolonged pole camera surveillance. Like the isolated use of pole cameras, the government‘s prolonged use of pole cameras to surveil someone‘s home presents an issue of first impression for this Court. We therefore begin by surveying the decisions of courts that have addressed long-term pole camera or video surveillance.
Federal circuit, federal district, and state courts have splintered on how to treat police use of cameras on public property (or, with consent, on private property) to record what happens outside one‘s home. That said, not all the cases we discuss specifically addressed the issue of the
Our sister circuits have almost uniformly declined to find
In harmony with the Sixth Circuit, the First,6 Fourth,7 and Tenth8 Circuits (and arguably the Ninth Circuit9) have similarly approved of governmental use of cameras, but we again note these cases did not squarely address the same factual and legal circumstances presented here.
Furthermore, the only circuit to require the government to seek a court order authorizing video survеillance is the
Federal district courts are mixed on whether pole camera surveillance constitutes a search. Following the trend lines of the federal circuit courts, district courts in the Seventh Circuit have found no
State courts likewise disagree whether pole camera use constitutes a search. Some state courts have joined the chorus determining that pole camera use does not qualify as a
3. The Pole Camera Surveillance Here Was Not a Search Under the Mosaic Theory
Having outlined the theoretical and jurisprudential underpinnings of the mosaic theory and various courts’ treatment of pole camera footage, we now turn to Tuggle‘s case. The thrust of Tuggle‘s argument—rooted in the mosaic theory—
Of course, the stationary cameras placed around Tuggle‘s house captured an important sliver of Tuggle‘s life, but they did not paint the type of exhaustive picture of his every movement that the Suprеme Court has frowned upon. If the facts and concurrences of Jones and Carpenter set the benchmarks, then the surveillance in this case pales in comparison.
In those cases, the justices expressed concerns about surveillance leading to “a precise, comprehensive record of a person‘s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” See Jones, 565 U.S. at 415 (Sotomayor, J., concurring) (emphasis added); Carpenter, 138 S. Ct. at 2217 (same). Following this reasoning, many justices saw the GPS and CSLI technologies in Jones and Carpenter as capable of capturing the whole of the defendants’ movements, therefore implicating the
Unlike those technologies, the cameras here exposed no details about where Tuggle traveled, what businesses he frequented, with whom he interacted in public, or whose homes he visited, among many other intimate details of his life. If anything, far from capturing the “whole of his physical movements,” id. at 2219, or his “public movements,” Jones, 565 U.S. at 415 (Sotomayor, J., concurring), the cameras only highlighted Tuggle‘s lack of movement, surveying only the time he spent at home and thus not illuminating what occurred when he moved from his home.
Beyond the justices’ “cryptic” embrace of the mosaic theory, Kerr, The Mosaic Theory, supra, at 326, the theory, in its inception, drew a distinction between the “passerby . . . observ[ing] or even follow[ing] someone during a single journey as he goes to the market or returns home from work” and the far more problematic “stranger [who] pick[s] up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.” Maynard, 615 F.3d at 560. The pole cameras in this case likely lie somewhere between these extremes but more closely resemble the former. In one sense, the recordings painted a whole picture of the happenings outside Tuggle‘s front door by recording nonstop for eighteen months. See, e.g., State v. Jones, 903 N.W.2d at 111 (“[O]fficers [were] able to ‘capture[] 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.‘” (some alterations in original) (quoting United States v. Garcia-Gonzalez, No. 14-10296, 2015 WL 5145537, at *5 (D. Mass. Sept. 1, 2015))). In another important sense, however, the footage only depicted one small part of a much larger whole: Tuggle‘s life or the “whole of his physical movements.” Carpenter, 138 S. Ct. at 2219. Given their immobile nature,
The prospective and nonhistorical use of the pole cameras here further distinguishes them from the technologies in cases where the Supreme Court relied on mosaic-styled arguments, which had retrospective capabilities. In Riley v. California, the Court determined that the government had unlawfully searched the defendant‘s phone based in part on the widening “gulf between physical practicability and digital capacity” of phones. 573 U.S. at 394. The court noted the immense amount of information and data that phones contain, including “photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on.” Id. As for Internet browsing, the court said it could “reveal an individual‘s private interests or concerns.” Id. at 395. Foreshadowing the main issue in Carpenter, the Court commented that “[h]istoric location information is a standard feature on many smart phones and can reconstruct someone‘s specific movements down to the minute, not only around town but also within a particular building,” essentially allowing the government to go back in time. Id. at 396.
The Supreme Court brought this idea to the fore in Carpenter when it highlighted CSLI‘s “retrospective quality” that “gives police access to a category of information otherwise unknowable.” 138 S. Ct. at 2218. The advent of CSLI-like technology therefore allows the government to “travel back in time to retrace a person‘s whereabouts,” obviating what would have been previous “attempts to reconstruct a person‘s movements [that] were limited by a dearth of records and the frailties of recollection.” Id. at 2218. We recently suggested that Carpenter should be read narrowly to proscribe only the collection of historical CSLI but not real-time CSLI. See United States v. Hammond, 996 F.3d 374, 383 (7th Cir. 2021) (concluding that government only searched defendant when it collected “historical CSLI,” but otherwise finding no search in government‘s collection of defendant‘s “real-time CSLI“).
By the logic of Riley and Carpenter, and our recent observations in Hammond, the pole camera surveillance here did not run afoul of the
We emphasize, however, that our decision in Tuggle‘s case does not rest on the premise that the government could have—in theory—obtained the same surveillance by stationing an agent atop the utility poles outside Tuggle‘s home, thus rendering the decision to instead use pole cameras constitutional. See Houston, 813 F.3d at 289 (“[I]t is only the possibility
that a member of the public may observe activity from a public vantage point—not the actual practicability of law enforcement‘s doing so without technology—that is relevant for Fourth Amendment purposes.“). This fiction contravenes the
Although we now hold that the pole camera surveillance of the exterior of Tuggle‘s home did not constitute a
Beyond the line-drawing issues, we conclude by sounding a note of caution regarding the current trajectory of
Cameras are a perfect example of the circularity. In 1791, no one would expect—because the technology did not exist—that the government could capture a still (or moving) image of a citizen at a given time or place. Even once invented and introduced to society, few would have expected that the government would use then-unwieldy and expensive cameras to aid in fast-moving law enforcement investigations. Eventually, cameras grew so sophisticated, discrete, portable, and inexpensive that they pervaded society. By that point, the government‘s use of cаmeras was entirely unsurprising, even though the Framers might have balked at such a prospect when they penned the
Barring a transformation in governing law, we expect this chronicle of cameras to repeat itself again and again with the evolution of far more invasive technologies. Today‘s pole cameras will be tomorrow‘s body cameras,17 “protracted location tracking using [automatic license plate readers],”18 drones,19 facial recognition,20 Internet-of-Things
envision. New technologies of this sort will not disappear, nor will the complicated
Assuming as much, it might soon be time to revisit the
This could also be an apt area for Congress to legislate because, as some have noted, “Congress has significant institutional advantages over the courts in trying to regulate privacy in new technologies.” Kerr, The Mosaic Theory, supra, at 350; see also Kyllo, 533 U.S. at 51 (Stevens, J., dissenting) (“It would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with prematurely devised constitutional constraints.“); Carpenter, 138 S. Ct. at 2246 (Thomas, J., dissenting) (“With no sense of irony, the Court invalidates this [statutory] regime today—the one that society actually created in the form of its elected representatives in Congress.” (internal quotation marks and citation omitted)); Cuevas-Perez, 640 F.3d at 286 (Flaum, J., concurring) (“[T]he unsettled, evolving expectations in this realm, combined with the fast pace of technological change, may make the legislature the branch of government that is best suited, and best situated, to act.“).
For now, though, we will continue to faithfully apply our current understanding
III. Conclusion
For these reasons, we AFFIRM the district court‘s denial of Tuggle‘s motion to suppress.