Ninth Circuit: Police May Enter Your House Under False Pretenses And Secretly Videotape Everything In It Without A Warrant

December 5, 2012

Think Progress sums it up:

A federal appeals courtruled last weekthat 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[d] 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.

Firedoglake notes that animal rights activists who tried to do the same thing to expose animal abuse in industrial farms were labeled “terrorists” by the FBI:

Earlier this year, Iowa and Utah became the latest states to approve “Ag Gag laws” that criminalize undercover investigations of animal abuse on factory farms. When activists enter a Concentrated Animal Feeding Operation under false pretenses (usually by getting hired) for the purpose of secretly videotaping the daily gratuitous atrocities committed against pigs, cows, chickens and other livestock, their conduct in states with Ag Gag laws is criminal. The FBI has recommended they be prosecuted as terrorists.

From a legal standpoint, There are several things worth discussing about this frustrating case. I’ll try to deal with them in turn.

First, this case is not unique. As Think Progress notes at the link above, other federal courts have upheld similar conduct by the police. This decision, as disgusting as it is, does not break new ground. That in itself is cause for consternation.

Second, what we are seeing here, if I may be blunt, is another bullshit decision using the same tired “objective reasonableness” analysis that the Supreme Court’s been passing off as legitimate legal analysis for years. We saw it most recently in Kentucky v. King, where the Court fashioned a tautological test for administering the “Police-Created Exigency” Doctrine, by which the test essentially allows police to create their own exigent circumstances to justify warrantless entry into someone’s home. We had a brief reprieve with U.S. v. Jones, wherein SCOTUS decided not to leap off the deep end and allow police the legal discretion to literally place a GPS tracker on every single car in the America if they wanted to. But with this Ninth Circuit decision, we’re back in familiar “#$%^ your reasonable expectation of privacy” territory.

For those of you not up on your Fourth Amendment case law, the essential inquiry in any warrantless search is whether you had an objectively reasonable expectation of privacy in the place being searched. In other words, it does not matter if you actually had an expectation of privacy (i.e. a “subjective” expectation) in some piece of property or circumstance. What matters is that you had an expectation of privacy which society is prepared to recognize as reasonable. Under the Katz test, a person theoretically has to have both an actual, subjective expectation of privacy, and an objectively reasonable expectation of privacy for their conduct or circumstances to be protected by the Fourth Amendment. The second prong of the test make the first one a moot point, however, because a subjective expectation of privacy that is not objectively reasonable still falls short of the Fourth Amendment. And the Court has made painfully clear on several occasions that analyzing a person’s subjective state of mind is increasingly frowned upon when analyzing Fourth Amendment cases. As the Court said in King, “Legal tests based on reasonableness are are generally objective, and [the] Court has long taken the view that “evenhanded law enforcement is best achieved by the application of objective standards of conduct …”

With this in mind, the Ninth Circuit claimed that you don’t have an objectively reasonable expectation of privacy in things that are left in plain view of third parties who you voluntarily allow into your home. This of course, completely overlooks that “the home has always been afforded special protection” in Fourth Amendment analysis, and that warrantless searches are “presumptively unreasonable,” and in the absence of a few “narrowly-tailored” exceptions, are ordinarily “held unlawful notwithstanding facts unquestionably showing probable cause.” There is supposed to be an enormously strong public policy against warrantless searches, which is buttressed by the special protection courts are supposed to grant to the home when determining whether an objectively reasonable expectation of privacy existed. The Ninth circuit and its sister courts completely overlook this part of federal Fourth Amendment jurisprudence, deferring instead to its own subjective belief of what is objectively reasonable—which apparently includes the expectation that people who you invite into your home will be secretly videotaping everything in plain view.

And therein lies the rub: what reasonable person would assume that a third party is video-taping the inside of their house? What reasonable person wouldn’t consider that to be a violation of their privacy? Reasonable expectations of privacy don’t disappear just because a part of your life is visible to third parties. Privacy interests do not exist only in things kept wholly hidden from view. Privacy also exists in things that we choose to show only to a select group of people who we trust to view those things. And while it is true that in this case, an undercover police officer entered a man’s home on the pretense of being an ordinary member of the public, even here, one’s reasonable expectation of privacy does not dissolve so completely as to allow that person to videotape the inside of your home. Opening your home to someone’s eyes and ears is much different than letting that person create a permanent digital record of the inside of your home. Consenting to allow a third party store information about your home through inchoate thoughts and memories they retain from the visual and audio data they receive through their eyes and ears is not the same as consenting to let them videotape the inside of your house. I know of few people who would feel comfortable with the latter, even if conducted by a person who they have willingly invited into their house.

But the Ninth Circuit, and several federal courts before it, have failed to appreciate that distinction. Again, we have a Fourth Amendment decision in which federal courts show themselves to be inimically predisposed to gerry-mandering exceptions to the warrant requirement of the Fourth Amendment because they’re afraid of allowing “the criminal … to go free because the constable has blundered.” And yet by doing so, they give police that much more discretion and control over our lives. One is left only clinging to the words of Justice Brennan, who wrote in his dissent in United States v. Leon in 1984:

When the public, as it quite properly has done in the past as well as in the present, demands that those in government increase their efforts to combat crime, it is all too easy for those government officials to seek expedient solutions. In contrast to such costly and difficult measures as building more prisons, improving law enforcement methods, or hiring more prosecutors and judges to relieve the overburdened court systems in the country’s metropolitan areas, the relaxation of Fourth Amendment standards seems a tempting, costless means of meeting the public’s demand for better law enforcement. In the long run, however, we as a society pay a heavy price for such expediency, because, as Justice Jackson observed, the rights guaranteed in the Fourth Amendment ”are not mere second-class rights, but belong in the catalog of indispensable freedoms.” Brinegar v. United States, 338 U.S. 160, 180 (1949) (dissenting opinion). Once lost, such rights are difficult to recover. There is hope, however, that in time this or some later Court will restore these precious freedoms to their rightful place as a primary protection for our citizens against overreaching officialdom.