Court OKs warrantless use
of hidden surveillance cameras
In latest case to test how
technological developments alter Americans' privacy, federal court sides with
Justice Department on police use of concealed surveillance cameras on private
property.
by Declan McCullagh October 30, 2012 10:45 AM PDT
Police are allowed in some
circumstances to install hidden surveillance cameras on private property
without obtaining a search warrant, a federal judge said yesterday.
CNET has learned that U.S.
District Judge William Griesbach ruled that it was reasonable for Drug
Enforcement Administration agents to enter rural property without permission --
and without a warrant -- to install multiple "covert digital surveillance
cameras" in hopes of uncovering evidence that 30 to 40 marijuana plants
were being grown.
This is the latest case to
highlight how advances in technology are causing the legal system to rethink
how Americans' privacy rights are protected by law. In January, the Supreme
Court rejected warrantless GPS tracking after previously rejecting warrantless
thermal imaging, but it has not yet ruled on warrantless cell phone tracking or
warrantless use of surveillance cameras placed on private property without
permission.
Yesterday Griesbach
adopted a recommendation by U.S. Magistrate Judge William Callahan dated
October 9. That recommendation said that the DEA's warrantless surveillance did
not violate the Fourth Amendment, which prohibits unreasonable searches and
requires that warrants describe the place that's being searched.
"The Supreme Court
has upheld the use of technology as a substitute for ordinary police
surveillance," Callahan wrote.
Two defendants in the
case, Manuel Mendoza and Marco Magana of Green Bay, Wis., have been charged
with federal drug crimes after DEA agent Steven Curran claimed to have
discovered more than 1,000 marijuana plants grown on the property, and face
possible life imprisonment and fines of up to $10 million. Mendoza and Magana
asked Callahan to throw out the video evidence on Fourth Amendment grounds,
noting that "No Trespassing" signs were posted throughout the heavily
wooded, 22-acre property owned by Magana and that it also had a locked gate.
Callahan based his
reasoning on a 1984 Supreme Court case called Oliver v. United States, in which
a majority of the justices said that "open fields" could be searched
without warrants because they're not covered by the Fourth Amendment. What
lawyers call "curtilage," on the other hand, meaning the land
immediately surrounding a residence, still has greater privacy protections.
"Placing a video
camera in a location that allows law enforcement to record activities outside
of a home and beyond protected curtilage does not violate the Fourth
Amendment," Justice Department prosecutors James Santelle and William
Lipscomb told Callahan.
As digital sensors become
cheaper and wireless connections become more powerful, the Justice Department's
argument would allow police to install cameras on private property without
court oversight -- subject only to budgetary limits and political pressure.
About four days after the
DEA's warrantless installation of surveillance cameras, a magistrate judge did
subsequently grant a warrant. But attorneys for Mendoza and Magana noticed that
the surveillance took place before the warrant was granted.
"That one's actions
could be recorded on their own property, even if the property is not within the
curtilage, is contrary to society's concept of privacy," wrote Brett
Reetz, Magana's attorney, in a legal filing last month. "The owner and his
guest... had reason to believe that their activities on the property were not
subject to video surveillance as it would constitute a violation of
privacy."
A jury trial has been
scheduled for January 22.
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