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

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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.

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Contributed by Hanni Fahkoury of Electronic Frontier Foundation.

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  • Cnsay

    This decision will result in the death of a lot of law enforcement officials.

  • David

    I hope that a lot of law enforcement are not harmed!! This decision does make that more of a possibility! Land and home owners have a responsibility to understand current laws!! For example, do not let them in your car when pulled over. Make them get a warrant, and for the love of Pete do not give them a reason for ” probable cause”!! Also come outside and don’t let them in!! Twice in my life I have had to deal with law enforcement, I wouldn’t let them in on my property and stood there for hours before they gave up!!

  • Sporky McCrackin

    I see individual liberties disappearing almost daily and the situation is alarming. This is why it is so important to make sure that everyone you elect puts individual liberties as his or her top priority. We need people like Ron Paul running the country. Not people like that disgusting witch Nancy Pelosi.

  • sixpack

    We need elected officials who put OUR individual liberties as his or her top priority, not just their own liberties…

    • SKIP

      WRONG! we no longer need elected officials at all for anything! An armed society is a polite society and no more attorneys either, they are only good for ending punishment of criminals and most of them are already criminals themselves.

  • Ed_B

    Maybe some of these judges need to have their homes bugged before they understand the implications of 24/7 warrant-less government intrusion into their lives.

    Anyway, a lot of LEO’s are good guys. I suspect, though, that a lot of these new cameras soon are going to have high speed collisions with small lead objects.

  • SKIP

    Besides, what would one expect of the 9th circus clowns. The 9th covers caliFOREIGNER! Enough said?

  • WHEN america wakes up and realizes,”OBAMAS THE ANTI-CHRIST” and all the good guys are being replaced with fallen angels and demons,america will really be a shit hole,the government is not just supposed to follow the US CONSTITUTION,its “purpose” is to improve liberty and justice in everything it does,anyone in government who fails to do this is guilty of treason,the police who are supposed to be the last line of the constitutions defence are all traitors and terrorists now,what really kills me is how they like to pretend there for the people and the truth is they all work for BANKS and GIANT CORPORATIONS NOW…………..

  • MY major in college was fish and wild life,the eagles are being killed by everyone for money,caught red handed with eagle anything,they should have pulled out their gun and shot that asshole right in the head,IN politically correct america,EVERYONE had better take pictures of the eagles,to show your grandchildren,cause before anyone wakes up to save the eagles,IT WILL ALREADY BE TO LATE,they’ll all be long gone….IN case you’ve never seen an eagle up close,their about 2 and 1/2 feet tall and even more beautifull up close,then pictures would ever show you,it going to take some serious laws to save them from the idiots……………

  • AT one time eagles were everywhere in america,the 1920’s saw a great reduction in birds of every kind,they were being killed for bird feather hats for the stupid women who could care less if there were no eagles,NOW the BALD EAGLES are almost gone,they been hunted almost to death for their feathers again,this country can’t be saved,there’s way to many IDIOTS breeding and having more IDIOTS, AND THE EAGLES don’t have a chance against IDIOTS with a rifle……………..