By: Maliha Sammo

Published on: January 27, 2025

“But when it comes to the Fourth Amendment, the home is first among equals.  At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’”[1]  The home is of the few explicitly stated objects and areas protected by the Fourth Amendment.[2]  And yet, our courts have decided people of a lower-income class are not deserving of these rights.[3]  Today, public housing landlords and officials have erected mass surveillance systems around their facilities, constantly watching their tenants.[4]  An exposé in The Washington Post found that the surveillance system in North Dakota’s public housing communities was similar to that of New York’s Rikers Island jail.[5]  North Dakota installed about 107 cameras just to watch a hundred residents,[6] and in Virginia, apartment complex cameras have facial recognition technology to scan everyone entering and exiting the facility.[7]  Although originally promised to help with rising crime in the community, it was soon discovered that the cameras were actually facing the residents, instead of the public.[8]  This kind of warrantless, long term, government surveillance is a violation of the Fourth Amendment.

The Fourth Amendment protects against unreasonable warrantless searches by government officials.[9]  To rise to the threshold of a Fourth Amendment search, there must be a reasonable expectation of privacy in the thing being searched.[10]  While the four walls around our homes are protected from government intrusion, it has long been debated whether there exists an expectation of privacy just outside the front door.  There is no real expectation of privacy when merely existing in public spaces; however, the Supreme Court has held that long term government tracking is a Fourth Amendment violation, regardless of location.[11]

The cameras in public housing communities are watching and recording every minute of every hour.  While they may not be placed inside the apartment themselves, constant recording of one’s movement from the moment they leave their front door and the moment they return is long-term surveillance tracking.  In 2018, the Supreme Court held that police warrantlessly accessing Timothy Carpenter’s location data, spanning a five-year period, was a search and violated the Fourth Amendment.[12]  Similarly, in United States v. Jones, the Court held that placing a global positioning system (“GPS”) device on a suspect’s car and tracking him for four weeks was a Fourth Amendment search.[13]  Continuously, the Court has held that this level of long-term tracking and surveillance cannot be done without a warrant.[14]  Consequently, it is unconstitutional for residents in public housing to be subjected to this type of unknown, warrantless, long-term surveillance.

Normally, a Fourth Amendment analysis starts and ends here: a state actor conducted a warrantless or otherwise unjustified Fourth Amendment search, and thus it was unconstitutional.  Since the state actors in these cases are public housing officials and not police officers, however, the Court would likely conduct an extra analysis considering whether these searches were justified for some special need or purpose.  Yet, because the United States Department of Housing and Urban Development (“HUD”) is facilitating the purchases of these surveillance systems through federal crime-fighting grants, the search is happening for law enforcement reasons.[15]  In Indianapolis v. Edmond, the Court held that holding checkpoints for the primary purpose of uncovering evidence for criminal wrongdoing was a law enforcement purpose and therefore unconstitutional when conducted without probable cause.[16]  The crime-fighting grants are given for the purpose of reducing crime in the area by recording any potential evidence.[17]  That is a distinct law enforcement purpose.  The analysis needs no extra justification for the search: this sort of long-term surveillance of public housing sponsored for a law enforcement purpose is simply unconstitutional.

Should the Court decide that by using the mass surveillance systems in public housing communities the government is performing a warrantless search for some other non-law enforcement purpose, then a special needs test would be conducted.  A special needs test is implemented to determine whether the search was reasonably justified for some special need or purpose, beyond and not related to police use.[18]  The Court uses a balancing test to examine three factors when making the determination: (1) the privacy intrusion on the individual, (2) the government interest in that intrusion, and (3) the effectiveness of the intrusion on the purpose.[19]

The privacy invasion on the residents of public housing is enormous.  As previously mentioned, these cameras record major portions of the resident’s lives as they enter and exit their homes.[20]  They record the coming and going of all residents as well as their guests.[21]  One woman was recorded smoking on the grounds outside of her house.[22]  The Court held in Carpenter v. United States that this kind of detailed, long term tracking is unconstitutional.[23]  The cameras captures the comings and goings of every individual on the residence regardless of whether they are a tenant. This footage allows the government to create a record of someone’s life for as long as they want, without their knowledge or consent, invading the resident’s privacy.

Yet, the government has an interest in the invasion.  Because it is public housing, the residence is technically owned by the government, who has an interest in keeping it safe and secure.  In Wyman v. James, the Court held that the government has a high Fourth Amendment interest in how welfare programs are being used because they are taxpayer-funded.[24]  Similarly here, the government has a strong interest in safeguarding and securing public housing communities since they are government-funded, and thus, taxpayer-funded.

Lastly, the effectiveness of this government intrusion does not match its purpose.  The alleged purpose of the surveillance systems is to reduce crime and increase safety within the public housing communities.[25]  Yet, residents report that the cameras are not actually being used for that purpose.  On the one hand, the cameras do not necessarily capture drug problems or other criminal issues.  One resident living in New York’s public housing complex stated that many of the drug deals happen in dark places where the cameras do not reach.[26]  Further, when residents try to get footage from the cameras to help them when their packages are stolen or their cars are damaged, they are told they cannot get access to that footage.[27]

Instead of being used for their supposed purpose, the footage from the cameras is being used to punish tenants.  The footage is used to evict people for violating lease policies, rather than reducing crime or keeping the community safe.  When the landlords were evicting a woman, they included footage of her removing a laundry basket from the communal laundry room as support.[28]  Instead of keeping the community safe, the footage was used to persuade the judge to rule against her in her eviction process.[29]  Therefore, even when conducting the special needs balancing test, the privacy invasion and ineffectiveness of the surveillance systems heavily outweigh the government interest and thus, the cameras are unconstitutional.

These surveillance systems impose the highest level of scrutiny upon the most vulnerable populations in this country.  Constant surveillance allows for increased evictions and once evicted, finding housing or employment again becomes extremely difficult.[30]  By allowing and facilitating this surveillance, the federal government is further contributing to the cycle of poverty in the United States.  Furthermore, the residents feel both constantly paranoid of possible increased contact with law enforcement but also a complete lack of faith that the police will be able to help them at all when they are the victims of crimes.[31]

By recording long term footage of residents without a warrant, public housing officials are conducting a Fourth Amendment search.  Since the purchases are funded through federal crime fighting grants, they are being conducted for law enforcement purposes and need no more justification.  Nevertheless, should the courts apply a special needs test it would find that the use of the surveillance system still does not satisfy the elements of the test.  Thus, the mass surveillance systems installed in public housing communities are unconstitutional under the Fourth Amendment.

[1] Florida v Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

[2] See U.S. Const. amend IV (“[P]ersons, houses, papers, and effects. . . .”).

[3] See, e.g., Wyman v. James, 400 U.S. 309, 326 (1971) (holding that a government official can search the home of a public welfare recipient); Sanchez v. San Diego, 464 F.3d 916, 931 (9th Cir. 2006) (holding that home visits for welfare recipients are reasonable searches under the Fourth Amendment and even if they were not they would still be justified).

[4] Douglas MacMillan, Eyes on the Poor: Cameras, Facial Recognition Watch Over Public Housing, The Wash. Post (May 16, 2023, 6:03 AM), https://www.washingtonpost.com/business/2023/05/16/surveillance-cameras-public-housing/.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] U.S. Const. amend IV.

[10] Katz v. United States, 389 U.S. 347, 360–61 (1967) (Harlan, J., concurring) (establishing the reasonable expectation of privacy test).

[11] See Carpenter v. United States, 585 U.S. 296, 320 (2018) (holding that tracking the location data from the previous five years was a Fourth Amendment search); United States v. Jones, 565 U.S. 400, 404 (2012) (holding that tracking a vehicle for over four weeks was a Fourth Amendment search).

[12] Carpenter, 585 U.S. at 320.

[13] Jones, 565 U.S. at 404.

[14] See Carpenter, 585 U.S. at 320 (holding that tracking the location data from the previous five years was a Fourth Amendment search); Jones, 565 U.S. at 404 (holding that tracking a vehicle for over four weeks was a Fourth Amendment search).

[15] MacMillan, supra note 4.

[16] Indianapolis v. Edmond, 531 U.S. 32, 38, 41, 44 (2000).

[17] Id. at 38.

[18] See Mich. Dep’t. of State Police v. Sitz, 496 U.S. 444, 449-50 (1990); Edmond, 531 U.S. at 37.

[19] See Sitz, 496 U.S. at 449-50; Edmond, 531 U.S. at 37.

[20] MacMillan, supra note 4.

[21] Id.

[22] Id. (reporting how the footage was used in support of her eviction).

[23] See Carpenter v. United States, 585 U.S. 296, 304, 320 (2018).

[24] See Wyman v. James, 400 U.S. 309, 318-19 (1971).

[25] MacMillan, supra note 4.

[26] See Lisa Lucile Owens, Concentrated Surveillance Without Constitutional Privacy: Law, Inequality, and Public Housing, 34 Stan. L. & Pol’y Rev. 131, 147 (2023) (“Drugs are sold in the shadows of playgrounds outside of buildings, where the lights aren’t bright enough, and the cameras don’t reach. The stairwells don’t have cameras either. . . .”).

[27] Lisa Desjardins & Andrew Corkery, How Surveillance Cameras are Being Used to Punish Public Housing Residents, PBS News (June 4, 2023, 5:40 PM), https://www.pbs.org/newshour/show/how-surveillance-cameras-are-being-used-to-punish-public-housing-residents.

[28] MacMillan, supra note 4.

[29] Desjardins & Corkery, supra note 27.

[30] MacMillan, supra note 4.

[31] Owens, supra note 26.

Posted in

Share this post