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Federal Judge Approves Warrantless, Covert Video Surveillance 420

Posted by Soulskill
from the won't-surprise-the-youtube-generation dept.
Penurious Penguin writes "Your curtilage may be your castle, but 'open fields' are open game for law-enforcement and surveillance technology. Whether 'No Trespassing' signs are present or not, your private property is public for the law, with or without a warrant. What the police cannot do, their cameras can — without warrant or court oversight. An article at CNET recounts a case involving the DEA, a federal judge, and two defendants (since charged) who were subjected to video surveillance on private property without a warrant. Presumably, the 4th Amendment suffers an obscure form of agoraphobia further elucidated in the article."
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Federal Judge Approves Warrantless, Covert Video Surveillance

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  • TFS is lacking (Score:4, Informative)

    by Anonymous Coward on Wednesday October 31, 2012 @01:32PM (#41833017)

    "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."

    • is that a ref to Dirty Harry?

      (hmmm, how fitting, in a way!)

    • Re:TFS is lacking (Score:5, Interesting)

      by v1 (525388) on Wednesday October 31, 2012 @02:41PM (#41834045) Homepage Journal

      I get the curtilage thing, but isn't this just outright trespasing? It was posted. If a private citizen walked up on this guy's land, he could charge them with trespassing couldn't he? I don't recall reading anywhere that an officer is exempt from this.

      Further into this, they put a camera there. What would happen to that private citizen if he installed a camera on the other side of that No Trespassing sign? It's "in plain sight" so I don't imagine Invasion of Privacy in the strictest terms would hold up, but it'd certainly be creepy to hear that Joe Citizen can bug my property legally?

  • by Anonymous Coward on Wednesday October 31, 2012 @01:33PM (#41833035)

    As the article explains: open fields, even when attached to homes, aren't normally covered by the 4th Amendment, because they're not in the plain-terms of the language. The 4th Amendment doesn't protect all property, but rather just the enumerated properties and spaces. Curtilage - the land immediately attached to a home - is sometimes covered, but separate fields such as these aren't.

    • As the article explains: open fields, even when attached to homes, aren't normally covered by the 4th Amendment, because they're not in the plain-terms of the language. The 4th Amendment doesn't protect all property, but rather just the enumerated properties and spaces. Curtilage - the land immediately attached to a home - is sometimes covered, but separate fields such as these aren't.

      The article itself is very odd. For example they open with:

      Police are allowed in some circumstances to install hidden surveillance cameras on private property without obtaining a search warrant, a federal judge said yesterday.

      [emphasis mine] Despite the fact that I can't find any reference to this in any of the quotes or any of the links in their article. In fact, the quote I can find in the article says:

      "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.

      My interpretation of this is that they think they can set up video cameras on public property to record activity on your personal property. Still not a great thing to have happen but not as bad as them installing something on your property without you knowing. Can anyone find where they explain further if the devices themselves were installed on the defendant's property?

      • by sribe (304414)

        Can anyone find where they explain further if the devices themselves were installed on the defendant's property?

        Pay close attention to the definition of "curtilage"--beyond protected curtilage does not mean off the defendant's property and on public property.

      • "My interpretation of this is that they think they can set up video cameras on public property to record activity on your personal property. Still not a great thing to have happen but not as bad as them installing something on your property without you knowing. Can anyone find where they explain further if the devices themselves were installed on the defendant's property?"

        I don't know exactly where the devices are placed. But past court rulings have defined the "protected curtilage" to be only a relatively small area -- particularly but not necessarily a fenced area -- around the actual residence.

        I don't agree with that definition... but that is the one most modern courts go by.

        • by Jane Q. Public (1010737) on Wednesday October 31, 2012 @02:20PM (#41833721)
          In other words: if you live in a city, and have a yard with a fairly modest front lawn, let's say, and a fenced back yard, then typically the whole of the property would be "curtilage" protected by the 4th Amendment.

          But if you live on a 1000-acre farm, very likely the "protected curtilage" would be only a small area around the actual house. You can help define this "protected curtilage" area yoursef, by building a fence around the residential area you want protected. Maybe you wan the barn to be within the protected curtilage, for example. So you build a fence at an 80 yard radius around the house and the barn. Very likely, a court would rule that to be "curtilage". But the wheat fields or whatever? No.
      • by pavon (30274) on Wednesday October 31, 2012 @02:38PM (#41833975)

        To elaborate on the other posters, the term curtilage refers to a very small area around your house (like a typical suburban yard), and doesn't include other private property like farmland, etc. These people had a large wooded plot of land with a house on it. They had large fences and no trespassing signs all around the property. The police set up cameras on the private property, but away from the house.

        Here is a better article [arstechnica.com] that also links to the full ruling, and has some very informative posts in the discussion.

    • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      Sadly, the fourth ammendment does not cover explicitly cover your fields.

      Also sadly, the government and the voters seem to think that spending taxpayer money on cameras and police

      • Sadly, the fourth ammendment does not cover explicitly cover your fields.

        Meaning - what? Oh, I see, that means it's all ok then - nothing to see here, move along.

        I know we're not disagreeing with each other, but what's sadly missing from most sentiments expressed so far is the true sense of rage this kind of thing should be causing. Too many good and decent citizens get caught in a "letter-of-the-law" argument, when the spirit of the law (or constitution) is mercilessly raped and pillaged, and we the people are left completely isolated and naked to whatever the almighty han

    • by rastoboy29 (807168) on Wednesday October 31, 2012 @04:13PM (#41835277) Homepage
      No. Wrong. Bad.

      One reason many of the founders did NOT want a Bill of Rights was because they wanted to be sure that the people's rights were NOT enumerated.

      What the Bill of Rights is is an enumeration of what the government can definitely NOT do.  Just because something isn't listed there, doesn't mean the government can go crazy and do whatever they want.

      Please stop spreading this common false understanding--it's very destructive.
  • Stalking (Score:3, Interesting)

    by Baldrson (78598) * on Wednesday October 31, 2012 @01:37PM (#41833083) Homepage Journal
    So, when a psycho decides a buxom babe secretly, subconsciously, loves him and he engages in covert video surveillance without a warrant, is he no more guilty of "stalking" than is a "law"-enforcement officer engaging in covert video surveillance without a warrent?
    • by cdrudge (68377)

      It depends. Is the buxom babe in a open field? If so, then yes, he's no more guilty. If the buxom babe is in her bathroom and the camera is hidden in a closet or in the bushes looking in the window, then no, he's more guilty.

      • by Baldrson (78598) *
        The public education system never ceases to amaze me with its products, such as those who can read "Whether 'No Trespassing' signs are present or not, your private property is public for the law, with or without a warrant." as meaning "Whether 'No Trespassing' signs are present or not, an open field is public for the law, with or without a warrant."

        What a piece of work is public education.

        • Did you RTFA?

          "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.

          Emphasis mine. It boils down to a question on Curtilage [wikipedia.org] on large properties. The buxom babe's bathroom or closet would be well within the protected zone, and thus not stalkable.

  • by CanHasDIY (1672858) on Wednesday October 31, 2012 @01:44PM (#41833185) Homepage Journal

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Anyone care to explain where, precisely, the above amendment specifies that it only applies to indoor, private property?

    Now that the SCOTUS has decided your property is now public and thus available to police scrutiny without warrant, is there still anyone stupid enough to think this won't eventually creep past the threshold and into your home?

    • Find: SCOUTUS

      Replace: Doucehbag Federal Judge
    • It applies to "persons, houses, papers, and effects". It does not mention fields.

      I would be all in favor of an ammentment to change that to "persons, houses, papers, effects, and all personal property".

      • by nschubach (922175)

        What if my house is a large patch of land with a fence? What if I build a long hallway, with a roof over it that surrounds my entire property, but I build a courtyard that is over 40 acres? Is that courtyard part of my house?

    • by tgd (2822)

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      Anyone care to explain where, precisely, the above amendment specifies that it only applies to indoor, private property?

      They're recording photons that have left your property. If you're concerned about it, take measures to ensure the photons that encode the information you're trying to protect do not leave your property. By, you know, doing your illegal act inside. With the blinds closed.

      Now that the SCOTUS has decided your property is now public and thus available to police scrutiny without warrant, is there still anyone stupid enough to think this won't eventually creep past the threshold and into your home?

      • They're recording photons that have left your property. If you're concerned about it, take measures to ensure the photons that encode the information you're trying to protect do not leave your property. By, you know, doing your illegal act inside. With the blinds closed.

        You really think this will only ever apply to people who are definitely guilty of a crime? For that matter, if the person being surveilled is already known to have committed a crime, why bother with surveillance?

        Wanna purchase some prime real estate spanning a river in NYC? I'll make you a heckuva deal...

      • By, you know, doing your illegal act inside.

        Or don't commit the illegal act in the first place, but that aside - just find the camera and see to it that any number of "accidents" keep occurring to disable the camera. Plenty of ways to do that without getting caught.

    • by Fastolfe (1470) on Wednesday October 31, 2012 @02:21PM (#41833745)

      I don't really see any mention of land/fields in that description at all. What part of "persons, houses, papers and effects" leads you to think that it's talking about land?

      Your suggestion that privately-owned land "is now public" is a bit ridiculous. This isn't about opening up your property to the public, it's about protecting open fields from searches without a warrant. You still own the land and you can still prosecute people that trespass on it (qualified immunity notwithstanding).

      Please keep in mind that this judge isn't the one ruling that fields are exempt from 4th Amendment protection. This was settled nearly a hundred years ago, but was the legal standard long before that:

      HESTER v. U S, 265 U.S. 57 (1924) [findlaw.com]

      The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester's father's land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law. 4 Bl. Comm. 223, 225, 226.

      The judge here is just applying that precedent to this case, and if you accept the precedent, it seems entirely appropriate and reasonable that it be applied this way here. If you don't like the outcome, don't piss on the judge for being reasonable. Talk to your legislature and get them to change the law.

    • by girlinatrainingbra (2738457) on Wednesday October 31, 2012 @03:10PM (#41834489)
      The Open fields doctrine [wikipedia.org] is what has become a standard ruled upon by the US Supreme Court. The curtilage [wikipedia.org] of a house is the house, its immediate surroundings, and any closely associated buildings or structures but excluding 'any open fields beyond'.
      .

      So the application of fencing around a yard turns it from an open field to a fenced enclosure, thus no longer an open field. A real lawyer would have to fight the issue for farm land. But if the field is unfenced, that's probably open field. Fenced and posted "no trespassing" fields, well, I don't think you can call those open fields anymore, even if they are not the "curtilage."
      .

      Sometimes, when I see words that I do not know, like curtilage, I look them up. Sometimes, when I see a combination of words that seem to have an obvious meaning, like open field, I also look them up. Which is how I found the open field doctrine concept. Whew, I think I learned more than one thing today in each period, plus two more concepts just now. That might make it time for ice-cream to drop the bio-cpu brain-core temperature.

  • by Baldrson (78598) * on Wednesday October 31, 2012 @01:44PM (#41833191) Homepage Journal
    Is it ok to use parabolic microphones during this covert surveillance conducted without a warrant?

    If so, is it ok to use advanced signal processing technology to covertly and without a warrant see as well as listen through the walls of a home that has EM emanating from a wifi router in the house?

    If so, is it ok to use EM emanating from the police car radio, incidental to routine police communications to covertly and without a warrant see as well as listen through the walls of a home?

    If so, is it ok to deliberately project EM from the police car --- say in the form of a simple flashlight -- onto the private property to get a better look?

    Am I now, by asking these questions, suspect?

  • Do you own the photons that come from space and bounce off you before entering a public area? Not saying I agree with this decision, but I dont see it as a 4th amendment issue anymore then someone on the street overhearing what you are doing inside your house.
    • by h4rr4r (612664)

      If they were recording from across the street I would agree.

      That is not what happened here. They trespassed onto his land then placed cameras there. The police officers violated the law to place those cameras.

  • If video surveillance doesn't require a warrant, what's to stop the police from using a helicopter based drone from flying in through an open window?

    • The fourth ammendment explicitly states "houses". If the window is of a house, the fourth ammendment would prohibit it.

    • by Fastolfe (1470)

      Two things are different about your hypothetical situation:

      1. This video surveillance was of the area OUTSIDE the home, where you have less of an expectation of privacy, and less protection against searches. Your hypothetical example would involve surveillance of the area INSIDE a private space, which would require a warrant no matter how you look at it.

      2. This video surveillance in this case occurred FROM an area outside the home, and (AIUI), outside the area of curtilage. It was argued that the police h

  • by Anonymous Coward on Wednesday October 31, 2012 @01:49PM (#41833265)

    They want the filming of the police openly with your phone to be illegal, but placing hidden cameras on private property to film civilians to be legal? Oh what a brave new world it is in this year of 1984.

  • Seriously WTF!!!! (Score:5, Informative)

    by NinjaTekNeeks (817385) on Wednesday October 31, 2012 @01:51PM (#41833289)
    "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."

    "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."

    Life in prison for growing plants, fuck our legal system.
    • Re: (Score:2, Flamebait)

      by tgd (2822)

      Life in prison for growing plants, fuck our legal system.

      No, life in prison for knowingly and deliberately breaking the law. The stupidity of the law doesn't change the illegality of breaking it. If you don't like the law, "fuck our legal" system is just a juvenile way of whining about it. If more people dislike the law than like the law, the law will change. If it doesn't, well, your opinion is in the minority and them's the breaks.

      • by PJ6 (1151747)

        If more people dislike the law than like the law, the law will change.

        No, it doesn't work like that. Not here.

  • I can work out for myself what the decision implies, thanks. I don't know to which TFS gives the bigger insult -- to the integrity of Slashdot, or to its readers' intelligence.
  • The judge had no choice. There was video of him cheating on his wife with a pig.

  • by smooth wombat (796938) on Wednesday October 31, 2012 @01:56PM (#41833375) Homepage Journal

    How is this any different than if a police officer goes on to your property, roots around in your garbage can and finds that you're dealing crack or leading an underage prostitution ring? The evidence in the above cases would be thrown out because courts have consistently said that while the police can go through your garbage IF the can is at the curb, they cannot walk on to your property to get to it.

    This seems to be the same thing. They came on to private property to search for evidence with the only difference being they used a camera instead of their hands.

  • by iiii (541004) on Wednesday October 31, 2012 @01:59PM (#41833423) Homepage
    I hope someone will soon put to the legal test the assertion that what this allows police to do without a warrant can be done by any citizen, including by any citizen towards the police. This may help to support the rights of citizens to record police officers while they are on duty. Hey, if any property that doesn't have a building on it is fair game for surveillance, by anyone, it opens up opportunity for all of the citizenry. Not saying I like this, but maybe there is a positive side to it.
  • America, rolled D20 for her Constitution. Alas, government has permanently cursed you, and now your Constitution is only a 4.

  • by superdave80 (1226592) on Wednesday October 31, 2012 @02:04PM (#41833495)

    U.S. Attorney James Santelle, who argued that warrantless surveillance cameras on private property "does not violate the Fourth Amendment."

    Well, Mr. U.S. Attorney James Santelle, I'll be over at your house in a few minutes with my camera to start recording what you do on your property.

  • Not to interrupt the flame war in progress, but these guys didn't own the land:

    The government also briefly argues that there was no Fourth Amendment search because neither Mendoza nor Magana owned or leased the Property.

    At least, according to the gubb-mint lawyers.

    I don't know how this is different from having the police fly over in a plane to observe these guys.

  • First of all it wasn't even their land. Second it was farm fields away from the house. This was the equivalent of someone complaining about a lack of privacy in a shopping mall parking lot. I'm a pretty strong believer in supporting all 10 rights in the bill of rights, but this has nothing to do with that at all....

  • by Sparticus789 (2625955) on Wednesday October 31, 2012 @02:07PM (#41833537) Journal

    Wi-fi signal detector - $200
    Scanning your property once a week for signals - 1 Hour
    Finding a warrantless wi-fi camera and placing it in front of a continuous loop of hardcore German scat porn. - Priceless

    Some things money can't buy. For everything else, there is the smug satisfaction of sticking it to the cops.

    • by houghi (78078)

      Police convincing the judge you obstructed the law. - Effortless
      Sitting in jail for obstruction of the law. -Timeless

  • Uh Oh! Cameras everywhere. Quick, how do I look?
  • .... "Get the f*** out of my country you f***ing a**hole."
  • I think I have made my intentions clear when the sign at the edge of my property reads:

    If you can read this, you are in range.

The more cordial the buyer's secretary, the greater the odds that the competition already has the order.

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