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No Warrant on Video Surveillance of Home Violates Fourth Amendment

Written by Hanni Fakhoury

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Big Brother Watching

EFF Amicus Brief: Video Surveillance of a Home for a Month Without a Warrant Violates Fourth Amendment

Just because a jogger can see the outside of your home on a public street doesn’t mean you’ve surrendered all your privacy expectations in the home. However, that seemingly obvious concept is being put to the test in a federal criminal case in Washington state, which involves the constitutionality of using a camera mounted on a pole outside a house to allow the police to watch the home for almost a month. Senior District Court Judge Edward Shea invited EFF to submit an amicus brief in the case and Monday we filed our brief, arguing prolonged warrantless video surveillance violates the Fourth Amendment

In United States v. Vargas, local police in Franklin County, Washington suspected Leonel Vargas of drug trafficking and in April 2013, installed a pole camera on a public road overlooking Vargas’ rural home. They did not get a search warrant to install or use the camera, which was pointed squarely at the front door and driveway of the home. Officers had the ability to pan the camera around and zoom in and out all from the comfort of the police station. They watched the outside of Vargas’ home for more than a month, taking notice of who visited him and what cars they were driving. They observed no criminal activity until a month after they began snooping, when officers saw him shooting a gun at beer bottles in what appeared to be target practice. Because the officer had learned earlier that Vargas was undocumented, they had probable cause to believe he had committed a federal crime by possessing a firearm. They used this surveillance to get a search warrant to enter Vargas’ home, and the search turned up drugs and guns, which form the criminal charges against Vargas.

Vargas moved to suppress the video surveillance, arguing the use of the pole camera violated the Fourth Amendment, which prohibits unreasonable searches. Since the frontyard and door of Vargas’ home is considered “curtilage,” it is entitled to the same Fourth Amendment protection as the home, where warrantless searches are considered per se unreasonable.

In defending the surveillance, the government argued that Vargas had no expectation of privacy since he exposed the front of his house to the public. But no one expects their house to be placed under invasive 24/7 video surveillance for a month. Although the U.S. Supreme Court in the 1980s previously authorized warrantless aerial surveillance in California v. Ciraolo, Dow Chemical Co. v. United States and Florida v. Riley, all of those cases involved one-time fly-overs, not continuous surveillance. Like GPS and cell phone tracking, prolonged video surveillance of a person’s home raises much more significant Fourth Amendment problems than a one-time observation. Non-stop video surveillance -- especially of a person’s home -- allows the police to determine a person’s associations and patterns of movements, information that can be extremely revealing. 

The invasiveness of video surveillance has led courts to require the police to do more than just get a search warrant to engage in this kind of snooping. Law enforcement must make additional showings to the court -- similar to those necessary to obtain authorization to wiretap a phone call -- before engaging in covert video surveillance. Any other rule would allow the police free rein to silently watch and record those they dislike, waiting for someone to inevitably commit one of the myriad federal crimes. Since the police had no warrant or judicial authorization whatsoever to video record Vargas’ home for a month, the surveillance violated the Fourth Amendment and all the evidence the police seized as a result of the surveillance can’t be used against Vargas in his criminal case.

These arguments touch upon more than pole cameras. As police departments around the country get their hands on new technologies like drones and mesh networks, the ability to move around anonymously and privately will be significantly impaired. It’s crucial for courts to play a role in policing the police and their new toys by overseeing the use of these technologies. 

Judge Shea will hear oral argument on the motion on February 11, 2014 at 10am at the federal courthouse in Richland, Washington.

Thanks to Robert Seines for serving as EFF’s local counsel in the case.

Hanni Fakhoury focuses on criminal lawprivacy and free speech litigation and advocacy. His work includes representing Andrew "Weev" Auernheimer on appeal, arguing before the Fifth Circuit Court of Appeals on the constitutionality of warrantless cell tracking, and serving as co-counsel in a First Amendment challenge to California's Proposition 35 in federal court. He's written numerous amicus briefs in state and federal courts and his writings have been published in the New York Times, WiredSlate and JURIST. In addition, Hanni has testified before the California state legislature on proposed electronic privacy legislation and has spoken at numerous legal seminars and conferences on electronic privacy issues in criminal law.

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