Ninth Circuit Gives the A-OK For Warrantless Home Video Surveillance

https://www.eff.org/deeplinks/2012/11/ninth-circuit-gives-ok-warrantless-home-video-surveillance
November 29, 2012 | By Hanni Fakhoury

Can law enforcement enter your house and use a secret video camera to record the intimate details inside? On Tuesday, the Ninth Circuit Court of Appeals unfortunately answered that question with "yes."

U.S. Fish and Wildlife agents suspected Ricky Wahchumwah of selling bald and gold eagle feathers and pelts in violation of federal law. Equipped with a small hidden video camera on his clothes, a Wildlife agent went to Wahchumwah's house and feigned interest in buying feathers and pelts. Unsurprisingly, the agent did not have a search warrant. Wahchumwah moved to suppress the video as an unreasonable search under the Fourth Amendment, but the trial court denied his motion. On appeal before the Ninth Circuit, we filed an amicus brief in support of Wahchumwah. We highlighted the Supreme Court's January 2012 decision in United States v. Jones -- which held that law enforcement's installation of a GPS device onto a car was a "search" under the Fourth Amendment -- and specifically focused on the concurring opinions of Justices Alito and Sotomayor, who were worried about the power of technology to eradicate privacy.

In our brief we argued that although a person may reveal small bits of information publicly or to a house guest, technology that allows the government to aggregate that data in ways that were impractical in the past means that greater judicial supervision and oversight is necessary. After all, a video camera can capture far more detail than the human eye and is specifically designed to allow the government to record, save and review details for another day, bypassing the human mind's tendency to forget. That means police need a search warrant to engage in the type of invasive surveillance they did in Wahchumwah's house.

Unconvinced, the Ninth Circuit instead relied on a case from 1966, Hoffa v. United States, ruling that Wahchumwah forfeited his privacy interest when he "voluntarily" revealed the interior of his home to the undercover agent. But its conclusion contradicts not only the Supreme Court's decision in Jones, but also earlier Ninth Circuit caselaw as well.

In Jones, the Supreme Court made clear that a law enforcement trespass onto private property for the purpose of obtaining information was a "search" under the Fourth Amendment. Under common law, a defendant was not liable for trespass if their entry was authorized. But the Ninth Circuit previously made clear in Theofel v. Farey-Jones that a person's consent to a trespass is ineffective if they're "mistaken as to the nature and quality of the invasion intended." In fact, Theofel cited another Ninth Circuit case where the court found a "police officer who, invited into a home, conceals a recording device for the media" to be a trespasser.

What that means here is that when the undercover agent concealed his identity and purpose, making Wahchumwah "mistaken as to the nature and quality" of the home visit, the government trespassed onto Wahchumwah's property. Since that trespass was done for the purpose of obtaining information -- to get evidence of bald and gold eagle feather and pelt sales -- the government "searched" Wahchumwah's home. And it needed a warrant to do that; without one, the search was unconstitutional.

Its troubling that the Ninth Circuit did not see it this way (nor are they the only one). Because the sad truth is that as technology continues to advance, surveillance becomes "voluntary" only by virtue of the fact we live in a modern society where technology is becoming cheaper, easier and more invasive. The Wahchumwah case exemplifies this: on suspicion of nothing more than the benign misdemeanor of selling eagle feathers, the government got to intrude inside the home and record every intimate detail it could: books on a shelf, letters on a coffee table, pictures on a wall. And we're entering an age where criminal suspicions is no longer even necessary. Whether you're calling a friend's stolen cell phone and landing on the NYPD massive database of call logs, driving into one of the increasing number of cities using license plate scanners to record who comes in or out, or walking somewhere close to hovering drones, innocent people are running the risk of having their personal details stored in criminal databases for years to come.

The only way to avoid pervasive law enforcement monitoring shouldn't be to make the choice to live under a rock in the wilderness somewhere. Instead, the Fourth Amendment means today what it meant in 1787: that the "right of the people to be secure in their persons, houses, papers, and effects" shouldn't be violated unless the government comes back with a warrant.

 Boy, this is a slippery one!

More than one question from more than one direction to take.

But maybe the starting point is with the officer's intent, uniformed or undercover, when headed to a specific house. Then one might need to then determine what the Constitution says about a homeowner's rights in relation to being searched or investigated by law enforcement, which this guy was clearly targeted for investigation of crimes. Both of these determinations must be made BEFORE the cop enters the property.

It seems clear to me that the cop would then need to be asked what was his intent in contacting that particular person, the defendant, that moved the cop to deceptively use a recording device.

I think also it must be asked, at what point did the cop first contact this defendent. Was it at his front door when knocking to come in? Or hag they met prior, and agreed to meet at the defendant's house? Big questions that make a huge difference legally.

Clearly, the basic facts show that the undercover cop was intending to gather information about a criminal case from his encounter with the defendant in the process of a criminal investigation. THAT means he needs a warrant, sorry!

Going undercover is in part in my mind illegal anyway, as it's deceiving people into to doing things they wouldn't do around a cop. It's getting them to admit guilt to a crime without being read their rights that they have the right to remain silent under risk of self-incrimination. That's a violation of a person's rights, period.