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Thu Dec 6, 2012, 05:17 PM

Police Can Record Video Inside Your Home Without A Warrant, Appeals Court Says

By Nicole Flatow on Dec 3, 2012 at 5:40 pm

Earlier this year, the U.S. Supreme Court provided some comfort to those fearing the seemingly limitless potential of new technologies to enable government privacy invasion. In holding that police could not attach a GPS device to a car and track it for 30 days without a warrant, the court said, “At bottom, we must ‘assur preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”

But don’t get too comfortable. A federal appeals court ruled last week that police can secretly videotape a suspect’s home without a warrant. In a case about the suspected sale of bald eagle feathers and pelts – a misdemeanor crime — the U.S. Court of Appeals for the Ninth Circuit held that undercover police admitted into the suspect’s home as interested buyers of pelts did not violate the Fourth Amendment when they secretly videotaped the suspect’s home:

We are persuaded that it is not “constitutionally relevant” whether an informant utilizes an audio-video device, rather than merely an audio recording device, to record activities occurring inside a home, into which the informer has been invited. When Wahchumwah invited Agent Romero into his home, he forfeited his expectation of privacy as to those areas that were “knowingly expose to” Agent Romero. Wahchumwah cannot reasonably argue that the recording violates his legitimate privacy interests when it reveals no more than what was already visible to the agent.


The decision doesn’t entirely break new ground. At least one other federal appeals court has upheld the use of video recordings inside the home, and just last month, a lower federal court reached a similar conclusion.
But the case raises the same sorts of concerns that several concurring justices emphasized in the U.S. Supreme Court’s decision last term in United States v. Jones: What scope of surveillance will not violate our present understanding of a “reasonable expectation of privacy”? At what point are we, as Justice Sonia Sotomayor cautions in Jones, “making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track, may ‘alter the relationship between citizen and government in a way that is inimical to democratic society’”? Electronic Frontier Foundation staff attorney Hanni Fakhoury elaborates on this concern:

he 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 suspicion 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 licenseplatescanners 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.


http://thinkprogress.org/justice/2012/12/03/1273621/police-can-record-video-inside-your-home-without-a-warrant-appeals-court-says/

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Arrow 38 replies Author Time Post
Reply Police Can Record Video Inside Your Home Without A Warrant, Appeals Court Says (Original post)
MrScorpio Dec 2012 OP
PDJane Dec 2012 #1
woo me with science Dec 2012 #9
MichiganVote Dec 2012 #2
1StrongBlackMan Dec 2012 #3
ProgressiveProfessor Dec 2012 #5
1StrongBlackMan Dec 2012 #11
Ikonoklast Dec 2012 #35
1StrongBlackMan Dec 2012 #36
loli phabay Dec 2012 #6
woo me with science Dec 2012 #8
1StrongBlackMan Dec 2012 #12
Bandit Dec 2012 #15
1StrongBlackMan Dec 2012 #18
hootinholler Dec 2012 #37
LiberalFighter Dec 2012 #38
msongs Dec 2012 #4
woo me with science Dec 2012 #7
1StrongBlackMan Dec 2012 #13
RomneyLies Dec 2012 #10
1StrongBlackMan Dec 2012 #16
X_Digger Dec 2012 #17
1StrongBlackMan Dec 2012 #20
Scabby57 Dec 2012 #14
white_wolf Dec 2012 #19
woo me with science Dec 2012 #22
white_wolf Dec 2012 #24
1StrongBlackMan Dec 2012 #25
white_wolf Dec 2012 #27
1StrongBlackMan Dec 2012 #32
white_wolf Dec 2012 #33
1StrongBlackMan Dec 2012 #34
1StrongBlackMan Dec 2012 #23
white_wolf Dec 2012 #26
alcibiades_mystery Dec 2012 #21
retread Dec 2012 #28
Smilo Dec 2012 #29
MiniMe Dec 2012 #30
woo me with science Dec 2012 #31

Response to MrScorpio (Original post)

Thu Dec 6, 2012, 05:19 PM

1. smells like fascism to me.......

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Response to PDJane (Reply #1)

Thu Dec 6, 2012, 06:41 PM

9. That odor's getting mighty familiar, isn't it.

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 05:21 PM

2. Well of course we now have "freedom" to work here in Michigan

That's apparently ALL we have freedom to do in Michigan now but hey, since the legislature and the BS artist Snyder seem to at lease consider citizens human, what's the worry.

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 05:54 PM

3. I don't have a constitutional problem ...

with this ruling. The 4th Amendment issue rests in one's expectation of privacy. One surrenders that expectation when one invites someone, especially, someone unknown to you, into your home. There is no criminal seller/criminal buyer priviledge.

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Response to 1StrongBlackMan (Reply #3)

Thu Dec 6, 2012, 06:33 PM

5. That is a key point many have missed

I don't have an open door policy in my home for just that reason.

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Response to ProgressiveProfessor (Reply #5)

Thu Dec 6, 2012, 06:46 PM

11. Absolutely ...

No one I don't know gets into my house ... we can talk on the porch, with the door closed behind me.

And, if someone does get into my house, I am not discussing criminal activity, nor do I have contraband in plain view.

But then, I don't engage in criminal activity, either.

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Response to 1StrongBlackMan (Reply #11)

Fri Dec 7, 2012, 11:54 AM

35. And what if it is a person known to you who is allowed inside, and that person is being used by

law enforcement to collect data to be reviewed in order to discover evidence of a crime?

There is a drug task force in my area that uses these very tactics; they have no problem using civilians against family members or friends.

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Response to Ikonoklast (Reply #35)

Fri Dec 7, 2012, 12:16 PM

36. I'd be pi$$ed ...

but would still have no constitutional protection.

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Response to 1StrongBlackMan (Reply #3)

Thu Dec 6, 2012, 06:38 PM

6. good post. same as when you call someone they may be recording

 

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Response to 1StrongBlackMan (Reply #3)

Thu Dec 6, 2012, 06:39 PM

8. Of course you don't.

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Response to woo me with science (Reply #8)

Thu Dec 6, 2012, 06:48 PM

12. So tell me ...

with respect to the U.S. Constitution, why should I?

Come on ... don't be shy!

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Response to 1StrongBlackMan (Reply #3)

Thu Dec 6, 2012, 06:50 PM

15. I thought there was a law about recording someone without their knowledge or approval.

I guess I must have imagined it...

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Response to Bandit (Reply #15)

Thu Dec 6, 2012, 06:54 PM

18. Different states have different rules ...

Most jurisdictions have the "Rule of One" ... so long as one of the parties, generally the one doing the recording, knows of the recording, it is lawful and admissible.

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Response to 1StrongBlackMan (Reply #3)

Fri Dec 7, 2012, 01:42 PM

37. While I see your point about the 4th and privacy expectations...

Consider for a moment that it is one thing for LE to rely upon an officer's memory and quite another to have available the perfect memory of the recording weeks or even years after the visit. Additionally, the recording can be shared and enlarged to glean information that otherwise would simply not be available. There is a privacy expectation component in evaluating 4th infringements, but there is also an expectation that no one could determine, for instance, the list of books on your bookshelves from across the room, or remember the addresses on envelopes lying on the coffee table.

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Response to 1StrongBlackMan (Reply #3)

Fri Dec 7, 2012, 01:51 PM

38. I agree. A point missed in this is that the recording was only made while the agent was in the house

No indication that they installed a device to record while the LEO was not present.

Another point is that they had probable cause to believe there were law violations occurring based on testimony from others. They investigated and it led to confirmation.

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 06:07 PM

4. sieg heil nt

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 06:38 PM

7. Had enough yet, America?

Inside the home now. Without a warrant.

Had enough yet?

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Response to woo me with science (Reply #7)

Thu Dec 6, 2012, 06:49 PM

13. L/E ...

doesn't need a warrant when you INVITE them in ... Just like they don't need a warrant when you consent to a search.

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 06:44 PM

10. Constitutionally, this was the right decision

 

You do not have an expectation of privacy when you invite somebody into your home.

A cop or informant CANNOT video tape your home if you do not invite them in.

The technology developments only make these things easier, but the principles have stood for decades.

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Response to RomneyLies (Reply #10)

Thu Dec 6, 2012, 06:51 PM

16. Bingo! n/t

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Response to RomneyLies (Reply #10)

Thu Dec 6, 2012, 06:53 PM

17. Correct. The same result, absent taping, would have happened with officers testimony.

If the officers had started rifling through the guy's closets, that would be another thing altogether.

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Response to X_Digger (Reply #17)

Thu Dec 6, 2012, 06:57 PM

20. Or ...

If the officers had started rifling through the guy's closets, that would be another thing altogether.


Or, if the officer had forced his/her way in ... different result.

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 06:49 PM

14. Warrants? We Don't Need Any Stinking Warrants

 

The Patriot Act Opened Up The Flood Gates

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 06:55 PM

19. If he invited the officer in he wavered his right to privacy.

This is why if the police come to your door and don't have a warrant you should usually, if not always, tell them they don't have your consent.

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Response to white_wolf (Reply #19)

Thu Dec 6, 2012, 06:58 PM

22. The police were undercover,

posing as not-police.

And how long before simply owning a computer or cable box with a camera attached is construed as "inviting" access?

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Response to woo me with science (Reply #22)

Thu Dec 6, 2012, 07:03 PM

24. Undercover? My mistake, I skimmed the article so I missed that part.

That makes this a lot worse to me. I understand how the courts got this ruling, but I don't agree with it. The problem is the police are agents of the state and I do feel that there should be different expectations of privacy regarding them. The man likely would not have invited the police in and that should make a difference. Your point about a computer with a camera is a good one and worrying. Honestly, the fact that we are having this conversation worries me. Law enforcement agencies have far too much power these days and to be frankly honest I think it is more important to protect people's rights than it is to capture every single criminal.

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Response to woo me with science (Reply #22)

Thu Dec 6, 2012, 07:04 PM

25. Actually,

if you skype and L/E observes contraband ... you've got a problem.

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Response to 1StrongBlackMan (Reply #25)

Thu Dec 6, 2012, 07:09 PM

27. That makes sense under the plain view doctrine.

I'll admit I don't like it. As I've said before in this thread I think we have given far too much power to law enforcement agencies, but legally what you say makes sense. We need to get Congress to pass laws restricting the power of law enforcement agencies if we want this to change.

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Response to white_wolf (Reply #27)

Fri Dec 7, 2012, 09:58 AM

32. Nor do I ...

I completely agree that We D. People, in the pursuit of "security and safety", or is it complatency, have given far too much power to L/E. While I am largely unaffected by these issues, because I do not engage in criminal activity, there is nothing stopping us from sliding down that slippery slope to McCarthy style political hunts.

Additionally, as We D. People surrender more and more power to non-human people, i.e., corporations, and the blending of corporate powers with traditional L/E, I think this corporate intrusions will soon be an issue to be reckoned with.

BTW, from what I've read ... Would I be correct in assuming that you are an attorney, or otherwise connected to the law?

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Response to 1StrongBlackMan (Reply #32)

Fri Dec 7, 2012, 11:15 AM

33. No, I'm not an attorney yet.

I'm just an undergrad student who has taken a couple of courses in constitutional law and criminal law and is planning on going to law school. The law interests me a lot so I also follow a few legal blogs and websites to keep up with these things.

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Response to white_wolf (Reply #33)

Fri Dec 7, 2012, 11:41 AM

34. Good for you ...

The law is a great and challenging profession, when used for "good"; but she can be a jealous mistress ... say goodbye to any thought of a 40 hour work week.

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Response to white_wolf (Reply #19)

Thu Dec 6, 2012, 07:02 PM

23. And ...

tell them you will be happy to allow them entry, once they present a valid warrant.

Then, whisper to whoever else is in the house to dispose of any contraband ... While you remain in plain sight.

Refusing entry ... then, scurrying around inside the house, flushing of toilets, turning on the sinks with the garbage disposal on, lighting the fireplace, will provide L/E with a reason to gain a warrantless entry, as all of these can be argued as reasonable cause to believe that evidence is being destroyed.

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Response to 1StrongBlackMan (Reply #23)

Thu Dec 6, 2012, 07:06 PM

26. Yeah I read about a case dealing with that. Out of Kentucky, I believe.

If I recall the Kentucky Supreme Court actually ruled in favor of the defendant and said that in the state of Kentucky they weren't willing to apply the Supreme Court's ruling so strictly.

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 06:58 PM

21. I agree with the court here

If an invited-in informant can wear a wire (for audio surveillance), why not a video recording device?

Unless people arguing against this decision also believe that police shouldn't be able to conduct audio surveillance with a wire, I don't get the objection.

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 07:11 PM

28. As creepy as this is, I find Verizon's plans even worse. A slippery slope indeed!!

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 07:30 PM

29. Might as well live in glass houses the

way this is going.

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Response to MrScorpio (Original post)

Thu Dec 6, 2012, 07:38 PM

30. I heard on the radio today that Verizon is trying to listen in to your home with DVR technology

They want to target ads to who is watching, so if they can tell that kids are watching something, you would get ads aimed at kids. I don't currently have a DVR, and I miss it, but if companies are going to do things like this, I don't want one.

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Response to MiniMe (Reply #30)

Thu Dec 6, 2012, 07:42 PM

31. There's an ongoing thread on that.

We are moving into a very disturbing future, indeed.

http://www.democraticunderground.com/10021938146

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