Posted on 11/01/2012 5:53:48 AM PDT by Ratman83
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.
Sooner or later this process will be judged by a juror.
The difference seems fairly straightforward to me. Law enforcement entered private property without a warrant to conduct their surveillance. Private property is just that. Don’t like it? Get a warrant. It’s that simple.
Little by little the gov takes away more and more of our formerly “private” property, out right to privacy, and all those other jokes formerly knows as rights in the Constitution and its amendments.
Target practice.
Yes, but not Nancy’s, to scary.
DEA, yep another unconstitutional agency.
If found, is it legal to remove them?
Well, if O wins on the 6th then most likely they will open on the 7th.
Yes so many even here do not understand.
It would be very difficult to hide a helo or undercover vehicle in someones kitchen.
IANAL, but...
That curtilage thing only covers the immediate environs of the house. Just as people are allowed to walk across a field without getting shot, so can law enforcement officers enter a piece of property that isn't someone's domicile.
Now if these guys had their 22 acre property fenced off _and_ posted they might have more of an argument.
Boy, this should be appealed - the only fundamental difference I see in this case vs. the GPS tracking devices case (other than the private property thing, which should also be significant) is that the surveillance is stationary.
Whether we like it or not (and I don’t) the federal courts have always held that the requirements for a warrant don’t apply to “open fields”. While the use of cameras is a recent phenomenon, warrantless surveillance of private, rural property is not.
If I ever find one it is getting the hammer and then buried.
Or maybe attached to my neighbors car, I don’t really like him very much.
In my opinion, when government uses GPS and foreknowledge of the property they want to surveil, it is the equivalent of entering a posted property. They KNOW the limits; they choose to cut the corners without legal basis.
BTW, “crossing someone’s property” isn’t even remotely the same as entering said property expressly for the purpose of emplacing illegal recording devices and then leaving. That argument doesn’t wash.
Maybe or just shoot them.
That stuff happens all the time. Agents put a tracker on a beater, the guy takes it into the shop and the mechanic finds it. Now bad guys are getting GPS jammers. There was another one where the DEA bagged a guy with duffle bag of drugs. They flipped him and tried to get him to do a controlled delivery. When he made the call to deliver the drugs the intended receiver asked why his dope had been to the DEA office. The bad guys had their own tracker in the bag of drugs.
This decision will not survive the supreme court, this judge needs recalled.
The 22 ac was posted that should be enough. Also the police had to trespass to place the devices, that is wrong and they should be in jail for that.
I do not have much faith in the courts at any level.
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