Okay, this is a bad idea and a bad decision. In police work the first principle we should always follow is “First do no harm.” Violating private property over a dope case, and not a big one, is doing harm. Regardless of what the judge might think.
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.
Here’s the problem with the case. Law enforcement has a higher bar than the regular citizen when dealing with violation of rights. That is why a civilian can witness or video or tape a crime with far more latitude that the police can. We need things called subpoenas and warrants which are reviews by a third party of our actions to make sure we aren’t out of line. Maybe not a huge bar, but a higher one still.
So can a private person cross private property not belonging to them, without permission if that property is in fact properly marked as no trespassing? The answer is no. No, no and no.
There are statutes directly dealing with this in all states. Yet, the DEA thinks crawling onto private property, then SETTING UP A CAMERA, as a way to make their job easier is a good idea- and one judge agrees.
Typically, the prosecutor argues a non-related case as a reason to allow it.
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.
What is an “open field”? If you have a fenced in and marked property that states clearly “No Trespassing” then it is no trespassing. You can fly over it, take photographs but you cannot jump the fence, pry the lock or cross the property without permission. Especially if your intent is to investigate a crime.
In addition, they not only “jumped the fence” they installed continuous surveillance devices on that property without warrant. This is that slippery slope. First we can get on your property, now we can set up cameras to watch you, and it’s legal.
Think about this for a second. What is an open field? One acre? Two? Ten? A hundred? What is open? Being able to see across? A three foot fence, a ten foot fence with barbwire on top?
Look, catching bad guys is important, but people will grow dope forever just as they made bathtub gin back in the 1920’s. Further degenerating our constitutional right to privacy is not a good trade off for a dope bust.
Soon, NOTHING will be private in our physical world, mirroring our virtual one.
Here is the case they cited. Note the conservative judges went for it, the liberals did not. In this case, the libs were right.