Murder in the Fourth

The EFF writes:

U.S. Fish and Wildlife agents were investigating Ricky Wahchumwah for the federal crime of selling bald eagle and gold eagle feathers. An undercover agent who went to Wahchumwah's home pretending to be interested in buying feathers was secretly recording all the details of Wahchumwah's home with a small video camera hidden in his clothes. The agent did not obtain a search warrant before recording. After the trial court found no Fourth Amendment violation and refused to suppress the video, Wahchumwah was convicted and eventually appealed to the Ninth Circuit Court of Appeals. We filed an amicus brief in support of Wahchumwah, but a three judge panel of the Ninth Circuit rejected our arguments, finding no Fourth Amendment problems. In our new amicus brief asking the entire Ninth Circuit to rehear the case, we argue the panel made two mistakes.

First, it failed to analyze the home video surveillance under the Fourth Amendment's trespass theory. Last year, the Supreme Court in United States v. Jones made clear that when the government trespasses onto private property for the purpose of obtaining information, it "searches" under the Fourth Amendment. Under common law, a defendant was not liable for trespass if the landowner authorized their entry. But that consent is ineffective if the person is mistaken about the "nature and quality" of the defendant's entry. And here Wahchumwah was clearly mistaken as to the agent's true purpose: to video record everything in his house without Wahchumwah's knowledge. Second, the court incorrectly found Wahchumwah had no reasonable expectation of privacy because he knowingly exposed the interior of his home to the agent when he let him in his house.

Both of these errors really turn on the panel's dangerous misunderstanding of people's privacy expectations. In Hoffa v. United States, the Supreme Court ruled the Fourth Amendment doesn't protect a “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” But at the same time, the Court has always limited searches to ensure they are reasonably related in scope to the circumstances that justify the search in the first place. When an undercover officer enters a home with the permission of the homeowner, he is obviously able to observe things with his eyes, take mental note of them and relay those opinions to other officers when he returns to the police headquarters. This is permissible because people expect visitors to observe portions of their home when they let them in. That's why people typically clean their house and put away embarrassing things before having guests over for dinner.

But people don't expect their guests to look at the letters on their desk, peer into rooms as they walk the hallways and generally rummage at will through the house. But that's precisely what the video camera here has the potential to do. A quick glance into a bedroom may not reveal much to the naked eye, but a video camera can capture it instantly and allow officers to rewind and zoom in from the comforts of their office without the homeowner wondering why their guest is lingering in the hallway. At that point, the surveillance far exceeds the circumstances that justified the search in the first place -- the homeowner's consent -- and renders the search unreasonable and unconstitutional unless the government has a search warrant.

I approach the issue of surveillance and technology with two principles -- or, if you prefer, predjudices. I haven't blogged about this before, and my ideas are untested, so I hope to be persuaded if they are unworkable. And I offer the principles as generalities only: I can think of exceptions, which I will get to in due course.

Principle 1: Technology, in and of itself, confers neither legal power nor legal disability on law enforcement. By this I mean that, for instance, if a police officer is lawfully standing on a street corner observing something, then replacing that police officer with a video camera does not by itself constitute an invasion of privacy. Likewise, if a police officer is not lawfully standing and observing, or if his personal presence 24 hours per day could reasonably be construed as harrassment, then replacing him with the camera would not make the surveillance okay for Fourth Amendment purposes.

This is particularly relevant to drone technology. If the police are allowed to conduct surveillance from helicopters, as I assume they are, then replacing the helicopter with a drone does not impose a disability. On the other hand, since the police are not allowed to trespass on private property to peer in someone's window, they would not be allowed to send a micro-drone to do it for them.

In the case above, the implication would be that a policeman would be allowed to carry a camera on his person without a warrant. But in this case the search would be invalidated because the officer lied about the "nature and quality" of his entry. (This limitation seems reasonable, but surprises me nonetheless: as we all know, the police are authorized to tell whatever lies they wish, especially during an interrogation. But I'm having trouble squaring this with the use of undercover policemen whose job it is to pretend to be someone else.)

A potentially problematic issue I can see would be the use of thermal imaging. My recollection is that SCOTUS has ruled that thermal imaging violates the reasonable expectation of privacy (note to self: look up citation), and with this I agree. But I'm not sure I can reconcile it with my generalization about technology alone. After all, if a policeman was standing on the sidewalk and saw a marijuana greenhouse through your window, that wouldn't violate your rights. Why would it be wrong to stand on the sidewalk and see the greenhouse through your wall with an imager? I'm going to have to think about this one.

Another problematic issue has to do with recording telephone conversations, although I come down on the other side of this one. Under existing law, both policeman and citizen alike are allowed to testify in court as to what was said during a telephone conversation, but it would be illegal for them to support their testimony with a recording unless all parties had been notified of the recording in advance. This still doesn't make any sense to me. Why should I not be allowed to record my own telephone conversations?

Principle 2: For surveillance purposes, a police officer without a warrant posesses no legal power or disability over that of any private citizen. I set out to write this sentence without the qualifying clause at the start, but quickly realized that we confer all sorts of special power on the police to arrest people "caught in the act", and to enforce public order generally. As we all know, this power is widely abused, especially with regard to surveillance: the police routinely slap "disorderly condct" charges on anyone attempting to film them. This principle would place policemen and citizens on equal footing. If it is not okay for a private citizen to, for whatever reason, take a picture of something or someone because such would be considered intimidation or a violation of privacy, then a policeman should be required to take that same picture. If it is not okay for a private citizen to fly a drone, then the police should not receive special dispensation; the FAA regulations should apply equally to everyone. But the converse is also true: if our expectation is that particular surveillance technologies are available to the police without a warrant, then private citizens should be permitted them as well.

These are the principles I bring to an analysis of Fourth Amendment law. I welcome any feedback you might have.