Rocky Joe Houston, and his brother Leon, do not like the government, and in particular do not like the police.


In May 2006 the brothers shot and killed Roane County Deputy Bill Jones and his ride-along friend Mike Brown, a former law enforcement officer, when the two tried to serve an arrest warrant on the brothers at their farm near Kingston, Tennessee.


Brothers Acquitted on Killings of Two Deputies


The brothers were arrested and charged with murder. Their first two trials ended after mistrials were declared. A third jury acquitted them because the prosecution could not prove the brothers fired the first shots at Jones and Brown. The brothers had steadfastly maintained they shot the deputy and the ride-along in self-defense; that the two men came to their farm with a specific intent to kill the brothers.


In August 2012, the Houston brothers drew national media scrutiny and the outrage of local law enforcement after they erected a billboard just outside their rural property with graphic crime scene photos of the dead bodies of Jones and Brown. They told the local media that the billboard was a warning to the “outside world” that corrupt police and government officials were out to kill them.


Brothers Challenge Government


“This ain’t nothing complicated,” Rocky Joe Houston told the Knoxville News Sentinel. “It’s real simple. We fear for our lives and our family lives, and we will continue to defend our lives.”


It didn’t take long before the Roane County Sheriff’s Department notified the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) that Rocky Joe was a convicted felon who possessed weapons at his residence.


Government Steps up Investigation


In a February 8, 2016 opinion, the Sixth Circuit Court of Appeals described Houston’s residence as being part of the “Houston family farm.”


There were three residences on the farm. A red brick building in which Rocky Joe resided and a trailer in which Leon resided.  Rocky Joe’s adult daughter is the only person who actually lived in the family “farmhouse.”


There were no fences or artificial barriers around the farm, although blue tarps blocked the view of Leon’s trailer doors while foliage blocked the views of Rocky Joe’s house.


It was evident the Houston family wanted privacy from the outside world. Besides the graphic billboard, there were other “hand-painted signs critical of government officials” posted on the farm, according to the Sixth Circuit.


Acting on the information supplied by the local sheriff’s department, the ATF initiated a surveillance of the Houston family farm and quickly realized their vehicles “[stuck] out like a sore thumb.”


Government Installs Camera on Utility Pole


The federal agents regrouped to consider another strategy.


ATF agents contacted the local utility company and instructed the company to install a “surveillance camera” on a public utility pole “located roughly 200 yards from Leon’s trailer,” the appeals court reported. The camera was installed on October 9, 2012. The agents had no warrant for its installation.


The Sixth Circuit pointed out that “the camera broadcasted its recordings via an encrypted signal to an IP address accessed through a log-in and password. The camera could move left and right and had a zoom function. The ATF agents trained the camera primarily on Leon’s trailer and a nearby bar because they understood that [Rocky Joe] spent most of his time in and around the trailer and occasionally slept there.”


Government Argues They Were in Public


The ATF justified this “warrantless surveillance” by saying the camera captured only what the agents would have seen had they driven down the public roads surrounding the Houston farm.


The ATF maintained this warrantless surveillance over the next ten weeks (from October 10 to December 19).


Similar Case from Court of Appeals Causes Concern


On December 19, 2012, in an unrelated case, the Sixth Circuit handed down a decision which expressed “some misgivings about a rule that would allow the government to conduct long-term video surveillance of a person’s backyard without a warrant. Few people, it seems, would expect that the government can constantly film their backyard for over three weeks using a secret camera that can pan and zoom and stream a live image to government agents.”


The Sixth Circuit followed the lead of a 1987 Fifth Circuit decision that, in dicta, stated using a pole camera to view curtilage over a 10-foot fence constitutes a Fourth Amendment search, and that such surveillance “provokes an immediate negative visceral reaction.”


Government Decides to Get a Warrant


In the wake of the Sixth Circuit “misgivings” about warrantless long-term video surveillance, the ATF agents obtained a warrant on the same day the appeals court expressed those misgivings to continue their pole surveillance of the Houston farm.


Three weeks later, on January 11, 2013, ATF agents made their move. They arrested Rocky Joe when he was away from the farm. That same day the agents “executed search warrants for the three residences at the farm.” They seized twenty-five firearms they attributed to the Houston brothers. Seventeen of the weapons were found in Rocky Joe’s residence, five in Leon’s trailer, and three found on Leon’s person.


Houston was indicted under 18 U.S.C. § 922(g)(1) on fourteen counts for being a felon in possession of a firearm. The government eventually dismissed 13 of the counts and pursued a single count before a jury. Video footage obtained from the telephone camera showed Rocky Joe in possession of a firearm on seven different dates during the 10-week warrantless surveillance. The jury also saw a post-warrant video that also showed Rocky Joe with a firearm.


Brothers File Motion to Suppress


In various pretrial motions to suppress and in limine, Rocky Joe had sought to suppress the pre-warrant and post-warrant videos showing him in possession of firearms. He challenged the pre-warrant video as a direct violation of the Fourth Amendment and the post-warrant video because the ATF agents did not have probable cause to procure the warrant.


The district court engaged in some convoluted constitutional reasoning in denying the motions. The court ruled that even if the ten-week warrantless video surveillance violated the Fourth Amendment, the exclusionary rule would not bar admission of the incriminating videos because the agents had acted in “good faith” in securing them.


And with respect to the post-warrant video surveillance, the court ruled that the agents had secured sufficient “probable cause based on the previous warrantless video footage as well as the statements from four individuals that Houston openly possessed firearms at his farm.”


A jury convicted Rocky Joe on March 19, 2014. The court imposed the maximum 108-month sentence recommended by U.S. Sentencing Guidelines. The judge based his sentencing decision on the billboard and signs posted at the Houston farm “as evidence of [Rocky Joe’s] hatred for public officials and his ‘fortress mentality.’”


Sixth Circuit Affirms Conviction


In upholding the trial court’s rulings on the warrantless video surveillance, the Sixth Circuit made this concluding observation:


“[Court precedents] indicate that long-term warrantless surveillance via a stationary pole camera does not violate a defendant’s Fourth Amendment rights when it is possible for any member of the public to have observed the defendant’s activities during the surveillance period.


“Moreover, if law enforcement were required to engage in live surveillance without the aid of technology in this type of situation, then the advance of technology would one-sidedly give criminals the upper hand. The law cannot be that modern technological advances are off-limits to law enforcement when criminals may use them freely …”


Beware of Big Brother


Just remember if you decide to light up a joint during a backyard barbecue, better check out the nearest utility pole for a camera. The government may be watching.