Federal Judge Approves Warrantless, Covert Video Surveillance 420
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."
TFS is lacking (Score:4, Informative)
"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."
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is that a ref to Dirty Harry?
(hmmm, how fitting, in a way!)
Re:TFS is lacking (Score:5, Interesting)
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?
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It is trespassing, and the criminal defendant could sue the cops. However, for something like this you could only get nominal damages in an amount barely enough to buy lunch. Unless perhaps they destroyed something valuable in the process of driving across his field and installing the cameras.
In some (most? all?) trespassing is a criminal offense, so you wouldn't sue for damages you'd press criminal charges. Well, if they damaged something you could also sue for damages. It's a misdemeanor crime, of course, but it has always seemed to me that any evidence collected as the result of criminal action should be inadmissible. Apparently not.
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Interesting. I'm not a lawyer, nor have I ever gone to law school, but it seems like the language of the statutes I know best -- those of Utah -- would have to be distorted pretty heavily for a court to reach that conclusion. There is no discussion of licenses, or even permission, just "knowledge that the person's presence is unlawful" and some explanation of how notice must be given. There is a general requirement of a culpable state of mind for any crime except strict liability crimes, but the requirem
Of course, that's -not- what the article says (Score:5, Informative)
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.
Also Unclear Where the Cameras Were Installed (Score:5, Interesting)
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?
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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.
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"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.
Re:Also Unclear Where the Cameras Were Installed (Score:4, Informative)
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.
Re:Also Unclear Where the Cameras Were Installed (Score:5, Informative)
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.
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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
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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
Re:Of course, that's -not- what the article says (Score:4, Insightful)
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)
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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.
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What a piece of work is public education.
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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.
Unadulterated BULLSHIT (Score:5, Informative)
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?
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Replace: Doucehbag Federal Judge
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You're not gonna find much if you search for SCOUTUS
You're probably right - I do much better as an Engineer.
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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".
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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?
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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?
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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...
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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.
Re:Unadulterated BULLSHIT (Score:5, Informative)
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.
Re:Unadulterated BULLSHIT (Score:5, Informative)
.
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.
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Actually no, several years ago the SCOTUS decided that the police could not use an infrared gun to gain proof of a growing operation without a warrant. I believe the reasoning was that the infrared could give the police additional information not related to the growing information such as when you were taking a hot bath or shower.
Parabolic microphones, signal processing, etc. (Score:4, Insightful)
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?
4th amendment? (Score:2)
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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.
Explains interest in drones (Score:2)
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?
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The fourth ammendment explicitly states "houses". If the window is of a house, the fourth ammendment would prohibit it.
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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
Let me get this straight... (Score:5, Insightful)
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)
"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.
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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.
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If more people dislike the law than like the law, the law will change.
No, it doesn't work like that. Not here.
Biased summary much? (Score:2)
The judge had no choice (Score:2)
The judge had no choice. There was video of him cheating on his wife with a pig.
Huh? (Score:3)
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.
Will this support the right to record police? (Score:3)
Constitution... (Score:2)
America, rolled D20 for her Constitution. Alas, government has permanently cursed you, and now your Constitution is only a 4.
What's good for the goose... (Score:5, Interesting)
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.
They were not on their own property (Score:2)
Not to interrupt the flame war in progress, but these guys didn't own the land:
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.
Misleading story submission (Score:2)
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....
Easy solution (Score:5, Funny)
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.
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Ubiquitous video surveilance (Score:2)
Immediate mental response.... (Score:2)
My Sign (Score:2)
If you can read this, you are in range.
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so, tell me, romney fans, you think things would IMPROVE if that assclown gets in?
really?
funny how you'll throw insults at obama but you are strangely silent about the other guy. who, most believe, will CRUSH whatever civil liberties are still left hanging by a thread.
Re:So tell me, Obama fans... (Score:4, Insightful)
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We the people deserve every last thing we get.
Number of times I've copypasted this here today and it still be on topic: 1
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No, but at least the media would bitch about it and point every single instance out to blame Romney on. (Kind of like when gas was $2.50 and every day there were 5 new articles on how bad gas prices were. It reached $4+ and scant one or two articles for the whole month.)
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I have something logical to offer, we know some things with Romney will get worse. Is that tradeoff worth it to everyone?
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Go visit your local high school and sit in on a civics class. The head of the executive branch has nothing to do with the decision of someone in the judicial branch. Obama didn't make a cameo appearance in the courtroom. Aside from a judge appointed by the president, you'd have to be a complete idiot to blame the executive office for something a judge decided to do in his own courtroom.
Re:So tell me, Obama fans... (Score:5, Insightful)
U.S. district judge sided with the Justice Department to rule that it was reasonable for DEA agents to enter a property without permission or a warrant to install multiple “covert digital surveillance cameras.”
The Justice department...
The Department is led by the Attorney General, who is nominated by the President and confirmed by the Senate and is a member of the Cabinet. The current Attorney General is Eric Holder.
http://en.wikipedia.org/wiki/United_States_Department_of_Justice [wikipedia.org] There would be no case here if the Obama administration had not brought one. Not defending republicans here, they are just as bad as democrats. But seriously, stop defending them like they were a friend of the people.
Re:So tell me, Obama fans... (Score:4, Insightful)
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Does this square with your expectations?
About what I'd expect, considering he was appointed by Bush. According to Wikipedia:
Griesbach was nominated by President George W. Bush
Re:So tell me, Obama fans... (Score:5, Informative)
False equivalency. The Obama / Holder justice department has cracked down on pot 4 times as hard [rollingstone.com] as Bush ever did, even conducting twice as many raids on medical marijuana facilities in 4 years than Bush did in 8. And this from the President that promised (as a candidate) to leave them alone.
Re:Wasn't it at least trespassing? (Score:5, Insightful)
rules and laws are for regular people.
don't you know the drill by now?
cops get away with murder.
literally.
and judges are fine with that. almost always. its the 'brotherhood of crime fighters' that keeps them all in alignment.
they have lost their souls and simply keep their brotherhood going.
Re:Wasn't it at least trespassing? (Score:4, Interesting)
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Exception that proves the rule. [wikipedia.org]
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Re:Wasn't it at least trespassing? (Score:5, Insightful)
What would really happen is when police are sure you are a criminal they will accept losing their jobs to catch you. This means nothing would change. Evidence collected illegally must be tossed out, or they will continue to collect evidence that way. Ideally it would be tossed out and the officers responsible would be reprimanded or fired.
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I recently sat through jury selection as a potential juror.
Both the prosecutor and the defense lawyer asked questions openly of us all. The defense lawyer also singled out any peace officers (Border Patrol, ICE and county Sheriffs as they stated) and asked them a very specific question--"Would you, as a peace officer, take the word of another officer over that of any other person?". All five answered that, yes, they would take the word of an officer over that of anyone else.
That, for me, was the American Ju
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"There is the small problem that police officers, by definition of the job, mostly interact with scum."
It is not a small problem--it is a huge problem when we are being treated as "scum", as you put it. Because that is exactly what is happening--peace officers have to assume that everyone is the same scum and act accordingly.
You yourself state that you "have" to apply some measure of circumspection, yet I just witnessed 5 peace officers clearly state that they would not be doing so in the courtroom if they
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If a private citizen had trespassed on someone else's private property to install cameras and record others' activities on the property without their consent, they would be asked to destroy the recordings (including any copies) as a simple matter of restitution for the trespass. Police acting without a warrant are no different in this regard than any private citizen, and the information they collect through trespass should not be treated any differently just because they want to claim it as "evidence".
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Telling me something doesn't exist because of a bureaucratic rule is stupid
No it isn't. Thought process now:
We can't (insert evil method here) because it won't be admissible.
Thought process without rule:
We might get a slap on the wrist for (insert evil method here) but we'll get the bad guy.
See the difference? Not having the "bureaucratic rule" in place is objectively favorable to (insert evil method here).
Re:wait (Score:5, Informative)
This judge was appointed by Bush, but sure, whatever you say.
Re:wait (Score:4, Interesting)
So, do you have an actual suggestion? Both major parties at this point have pretty egregious records when it comes to civil liberties. Neither not voting nor voting for third parties seem likely to affect the situation in a useful manner. ...which would then mean that the ways to address the situation are probably things other than voting. So why did you post?
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Because Republicans never throw money at "law and order". All those red state prisons are actually playgrounds.
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We the people deserve every last thing we get.
Re:wait (Score:5, Insightful)
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Since it's likely the next president will replace the supreme court justices, yes, the president will matter. Romeny is pro corporation, and very much a 'They must be guilty or they wouldn't be under surveillance". kind of guy. Keep that in mind if you vote.
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Because the people doing the survelance aren't part of the executive branch of anything like that.
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What? Are you saying that the justice department/DEA isn't a part of the executive branch? Think you need to go back and review your notes from your high school civics class.
Seriously, the JUSTICE dept is the executive branch.
Re:wait (Score:5, Interesting)
Its ok guys just re-elect Obama 2012.
Yep because this went up to Obama's desk and he looked at it and he said, "Yes, okay do this." and then he signed off on this. And now I'm to believe that Romney will not do this ...
Pfft. Obama. Romney. Pfft.
The difference is with Obama it's the government/public agencies doing this, while under Romney it'll be private sector doing it and billing anyone who wants to know what they saw.
Re:wait (Score:5, Informative)
The difference is with Obama it's the government/public agencies doing this, while under Romney it'll be private sector doing it and billing anyone who wants to know what they saw.
Well, there goes that "difference". You apparently haven't seen Obama's latest Executive Order [whitehouse.gov].
Remember, folks, it's a "public-private partnership"; we don't call it fascism anymore!
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Mod parent up (though romney wouldn't have done any different)
Re:wait (Score:4, Interesting)
Well, another difference is that "progressives" will remain absolutely dead silent while Obama guts the civil rights portions of the Constitution, but if Romney is elected and tries to do the same thing, then they'll complain about. So ironically, civil rights are in less danger under the GOP.
Precedent (Score:5, Informative)
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If you want the cops to get a warrant, grow your MJ indoors or in the "curtilage" behind a tall fence (and hope they're not using aircraft).
Or dogs [slashdot.org].
Fruit of the poisonous tree? (Score:3)
The question I have is, if the government agents in question had to engage in illegal trespassing in order to place the cameras, wouldn't any surveillance collected from such cameras be fruit of the poisonous tree?
Now, if they didn't have to trespass in order to place the cameras, it's a different story.
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The judge is a democrat.
Proof? He was confirmed unanimously, but I see no reference to his political affiliations. He was appointed by Bush however...
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No doubt you are too much of a pussy to call me Teabagger to my face
Says the AC.
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That does not need to be illegal. The cops already steal and damage your property, beat you up, and charge you with "resisting arrest" after dropping the other bogus charges. You have no recourse. Why go through the trouble of making it illegal?
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And this is why we have warrants.
The question isn't whether or not police should be able to gather this kind of evidence ever, it's whether police should be able to gather it without a warrant. If you have enough evidence to convince a judge, then hey, you can go look. If you don't... why was that you thought you should be able to? It's a terribly high standard of oversite, but it does provide some check
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But people would probably listen to you a bit more if you explained how *communities* can both protect the rights of innocent people, as well as deal with potential threats to life and liberty.
This is a very strange question, as the article is about police actions in "the war on drugs", which is not a case of police dealing with a potential threat to life and liberty. It is, rather, a case of the police being a potential threat to life and liberty.
So first off, many if not most civil libertarians would agree that legalization of most drugs and medicalization of drug adiction would do a great deal to protect communities from abuse of power by police.
Then you go off on completely unrelated matters
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The fact that he would have to break the law to satisfy his sexual proclivities sets up a character test - it shows that he values the gratification of his sexual desires over conforming to the law.
Everyone should value the gratification of their sexual desires over conforming to the law. What you shouldn't do is value the gratification of your sexual desires over the consent of your partner.
You could use this argument to support bans on interracial marriage, masturbation, anal sex, and adultery. Do you
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Easy solution. Legalize drugs and the police will have no business snooping around open fields.
Can any of you who vigorously push for "freedom" tell me how your efforts will directly help to make things safer for my family?
Your children will become adults some day. If you care about their safety, you should ensure that they are not persecuted by their government for their personal life choices that don't harm anyone else. The only threat to your family discussed in the article is the police.
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I'm glad you're sticking with this discussion, despite the undeserved downmods. The concrete answer you want is "warrants".
How do I protect my family (within the framework of the changes you would like to see in the laws) proactively?
When you have evidence of wrong doing (actual wrong doing, not violation of sumptuary laws), you give that evidence to police who take it to a judge who signs a warrant.
Or do you mean "proactively" as in "fishing expedition"? If you do, my argument is that fishing expeditions
Re:Civil libertarians - please provide alternative (Score:5, Insightful)
how do those who vigorously defend civil liberties propose the community should protect themselves?
We have a constitutional amendment for that...
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
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Your State laws do not apply to actions taken by Federal law enforcement officers in the performance of a federal investigation.
Federal officers follow federal law. State protections only apply to State actions, not Federal actions.
That would be true in some systems, but not in a republic. The US Constitution does NOT grant police powers to the federal government, that is reserved to the states. Therefore, within state territory, even Federal officers must comply with state and local laws and constitutions.