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Federal Court OK's hidden cameras on private property without warrant

peter nap

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We had this discussion before pertaining to Conservation Officers and OC'ing without a permit during the "SPECIAL PERSON" seasons and the definition of curtilage.

The courts just reaffirmed.

http://news.cnet.com/8301-13578_3-5...rrantless-use-of-hidden-surveillance-cameras/
[h=1]Court OKs warrantless use of hidden surveillance cameras[/h] 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.

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.
 

skidmark

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Were not (are not) "open fields" just that - fields that you can see into without needing to cross the property line?

If the DEA wants to stake out a pot grow they can put cameras on telephone poles (power line towers) just like the FBI did during the Red Scare days. And why they need concealed survelience cameras at all in this day of drones (predatory or otherwise) seems rather odd in itself, seeing as how stationary cameras seem to miss more than they catch, plus can be tripped by irrelevant wildlife.

My Spidey Senses tell me there is something more than merely monitoring a pot grow going on here.

stay safe.
 

peter nap

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Were not (are not) "open fields" just that - fields that you can see into without needing to cross the property line?

If the DEA wants to stake out a pot grow they can put cameras on telephone poles (power line towers) just like the FBI did during the Red Scare days. And why they need concealed survelience cameras at all in this day of drones (predatory or otherwise) seems rather odd in itself, seeing as how stationary cameras seem to miss more than they catch, plus can be tripped by irrelevant wildlife.

My Spidey Senses tell me there is something more than merely monitoring a pot grow going on here.

stay safe.

At one time before we were on Ernie Alert...they were only allowed to put them as high as the highest vehicle allowed, without a warrant. I don't have the cite handy. The open fields ruling as I recall....said something like you can see it from the property line anyway.

Yeah, I agree...thars skullduggery afoot!:uhoh:
 

Citizen

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Y'all recall the 1990's movie The Thomas Crown Affair? Where Crown had a forger paint a copy of the stolen masterpiece onto a print of dogs playing poker? Then the hot private investigator played by Rene Russo found the forgery during a warrantless search of Crown's study. When she triumphantly returned with the painting, an art expert examined the forgery painting under x-ray and found the dogs print.

Heh, heh, heh.

If you know the camera is there, you could have all kinds of fun.
 
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peter nap

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Y'all recall the 1990's movie The Thomas Crown Affair? Where Crown had a forger paint a copy of the stolen masterpiece onto a print of dogs playing poker?

Heh, heh, heh.

If you know the camera is there, you could have all kinds of fun.

If I knew the camera was there....I'd have another game camera!:lol:
 

Citizen

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If I knew the camera was there....I'd have another game camera!:lol:

They'd come demanding it back like the guy who found a GPS unit on his car and separated it from the power source.

You could really play with their heads, though. Run an old Bugs Bunny cartoon into it. Then some old keystone cops black-and-white short films. Of course, it just has to include the cop who shot himself in the leg right after telling the schoolkids that he was the only one professional enough... You get the idea.

Or, just blame the loss of the camera on dog hunters. :D
 

carolina guy

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They'd come demanding it back like the guy who found a GPS unit on his car and separated it from the power source.

You could really play with their heads, though. Run an old Bugs Bunny cartoon into it. Then some old keystone cops black-and-white short films. Of course, it just has to include the cop who shot himself in the leg right after telling the schoolkids that he was the only one professional enough... You get the idea.

Or, just blame the loss of the camera on dog hunters. :D

Have it record a television show, like cops... :)
 

richarcm

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They will start running K9s up on your property anyways. It's the easiest means to get a warrant. And it's so easy to create a false positive.
 

SFCRetired

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They will start running K9s up on your property anyways. It's the easiest means to get a warrant. And it's so easy to create a false positive.

Hmmm, feral dog running loose on someone's property? Didn't see anything indicating the feral dog was a K9? That would be a very, very interesting court case. And, very probably, a very, very dead "feral" dog. Of course, that is more likely in a rural environment than in an urban environment.

Another side of that coin: If a human officer would be trespassing, why would not a K9, also considered to be a police officer, be just as guilty of trespass?
 

peter nap

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Hmmm, feral dog running loose on someone's property? Didn't see anything indicating the feral dog was a K9? That would be a very, very interesting court case. And, very probably, a very, very dead "feral" dog. Of course, that is more likely in a rural environment than in an urban environment.

Another side of that coin: If a human officer would be trespassing, why would not a K9, also considered to be a police officer, be just as guilty of trespass?

There is a K9 Case in the Supreme Court now deciding if an officer can use a positive hit from outside a house as PC to get a search warrant.

As to trespassing, if the cop is on duty, he isn't trespassing. He may not be able to use what he finds as evidence but you can't prosecute him.

There are certain occupations in Va that are exempted from the trespassing statute. Surveyors, people looking for possible utility or ROW easements and Cops, DOGHUNTERS getting their mutts that they ran in on purpose:mad:...to name a few.

An interesting thing about that is, a LEO who comes on the property without probable suspicion and finds a still, probably can't get a search warrant based on his observation but a worthless dog hunter can see a still and tell a LEO who can use that as PC for the warrant.
 

user

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... As to trespassing, if the cop is on duty, he isn't trespassing. He may not be able to use what he finds as evidence but you can't prosecute him.

There are certain occupations in Va that are exempted from the trespassing statute. Surveyors, people looking for possible utility or ROW easements and Cops, DOGHUNTERS getting their mutts that they ran in on purpose:mad:...to name a few. ...

Note that the trespassing statute only defines a criminal offense. It has no bearing on whether or not the intruder is a trespasser, which is defined by common law. The landowner can always file a civil suit for the trespass, either in an action at law for damages resulting from trespasses already committed, or in equity for an injunction to prohibit future trespasses. In the case of a person charged with a crime as the result of the trespass, I'm thinking, that looks like some serious damages claims! If it weren't for the trespassory acts by non-law enforcement (DEA) people, he'd have never been charged with the crime, so it's their intentionally wrongful act that resulted in his damages. I wouldn't take that case, but it sure would be fun!
 

Citizen

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Note that the trespassing statute only defines a criminal offense. It has no bearing on whether or not the intruder is a trespasser, which is defined by common law. The landowner can always file a civil suit for the trespass, either in an action at law for damages resulting from trespasses already committed, or in equity for an injunction to prohibit future trespasses. In the case of a person charged with a crime as the result of the trespass, I'm thinking, that looks like some serious damages claims! If it weren't for the trespassory acts by non-law enforcement (DEA) people, he'd have never been charged with the crime, so it's their intentionally wrongful act that resulted in his damages. I wouldn't take that case, but it sure would be fun!

Hey! You're back! I was getting worried. Hope everything is fine. Glad you're back.
 

OC for ME

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There is a K9 Case in the Supreme Court now deciding if an officer can use a positive hit from outside a house as PC to get a search warrant.

As to trespassing, if the cop is on duty, he isn't trespassing. He may not be able to use what he finds as evidence but you can't prosecute him.

There are certain occupations in Va that are exempted from the trespassing statute. Surveyors, people looking for possible utility or ROW easements and Cops, DOGHUNTERS getting their mutts that they ran in on purpose:mad:...to name a few.

An interesting thing about that is, a LEO who comes on the property without probable suspicion and finds a still, probably can't get a search warrant based on his observation but a worthless dog hunter can see a still and tell a LEO who can use that as PC for the warrant.
The citizen (not THE Citizen of OCDO fame) may be immune (exempted) from trespassing statutes, but any property that he may leave behind and who now owns said property is (may be) a different issue.

Note that the trespassing statute only defines a criminal offense. It has no bearing on whether or not the intruder is a trespasser, which is defined by common law. The landowner can always file a civil suit for the trespass, either in an action at law for damages resulting from trespasses already committed, or in equity for an injunction to prohibit future trespasses. In the case of a person charged with a crime as the result of the trespass, I'm thinking, that looks like some serious damages claims! If it weren't for the trespassory acts by non-law enforcement (DEA) people, he'd have never been charged with the crime, so it's their intentionally wrongful act that resulted in his damages. I wouldn't take that case, but it sure would be fun!
If I find a device, placed (installed) without my permission or a warrant, who owns the device? The "utilities" may install and remove as they please, no issues with that. Surveyors rarely leave behind anything more than sticks and paint.
 
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