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.
That's the key to this ruling.
Try it sometime then tell me about it.
The courts at all level are blowing off our rights; they are just like the rest of the government, out of control.
Trespassing.
You don't own the air, but you do own the ground.
The issue of UAVs and aircraft altitude do become an issue though. Can someone hover your property at 10' without your permission? I would say not. We will need to enact laws concerning property rights to airspace at 500' AGL and below.
Agree!
"I'm really sorry, Mr. Law Enforcement Officer! I didn't know that you had installed your secret surveillance camera right on the spot where I was planning to have a bonfire!"
Regards,
From the article: "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."
The article does say it was posted throughout the propery, but not necessarily at the property line. The article doesn't specifically say that the property was fenced, but it does mention a locked gate. Why have a gate that locks, and no fence?
Indeed. The enablers of the drug cartels strike another blow for totalitarianism.
Romney has avoided talking about the erosion of our Constitutional rights.
There are detectors, normally used for 'bug sweeping' against microphones and audible-survelliance equipment, that detect and alert you to the presence of circuitry (particularly transistors and chips). These devices would certainly detect a camera.
He does not want to be attacked by both sides.
The more government and law enforcement support the cartels get the more work theat government and law enforcement get.
IIRC, the SCOTUS decision on aerial surveillance used specific but ill-defined terms such as "Public Navigable Airspace" and "Naked Eye Observation" in deeming it an exception to previous cases which define the expected privacy rights attaching to a dwelling or commercial building and the surrounding curtilage.
Perhaps there are other cases which take a stab at defining these terms in a meaningful way.
Stakeouts and flyovers occur in public space. Going on someone's private property and installing surveillance equipment doesn't.
So you're a shameful, hysterical Drug War fascist who embraces a Tyrannical surveillance state, as long as it's inexpensive to do so? Got it.
I'll have to remain a naive patriot who supports honoring the Fourth Amendment, unalienable rights, and fundamental concepts of Freedom and non-invasive government.
because if the feds tresspass on your property for surveillance, the courts would not use any evidence resulting from the violation..
now, they can tresspass on your private property, install camera’s, then go away...
Yes, there are ... and if I believed that someone might be spying on me, I would avail myself of such devices.
This creates two legal nightmares that need to be addressed.
1) If you shoot an armed LEO who has intruded onto your property or even your home, while making a warrantless search, with nothing obvious to identify him as an LEO other than a hidden badge, you may still be charged with murder; though it would be entirely legal to kill a civilian armed intruder indistinguishable from this LEO.
(A good question remains is it still murder if you kill him after he shoots at you, first.)
Interestingly, criminals have already adopted this as a strategy, impersonating police officers so they will meet no resistance when conducting a home invasion robbery.
So the question becomes, if you have fenced property marked as “no trespassing”, and an armed LEO without a warrant sneaks on to your land to emplace surveillance devices, and you shoot him, will you be charged with murder?
2) Once police have emplaced surveillance devices *with* a warrant, it is a criminal offense to tamper with, disable, or otherwise interfere with their operation. But if this is done without a warrant, is it still a criminal offense to disable such a surveillance device, though it is not distinguishable as being a police device?
“He does not want to be attacked by both sides.”
When or if he wins, he will also have a mandate for creating jobs, and not much else...
It appears not all the Constitution Shredders are located in the Oval Office.
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