A Wisconsin court has upheld authorities installing video surveillance equipment on a 22-acre property without a warrant, which ultimately led to evidence tying two men to illegal marijuana farming.
CNET reported earlier this week that U.S. District Judge William Griesbach found it reasonable for the Drug Enforcement Administration to install "covert digital surveillance cameras" on the land without a warrant. Griesbach sided with U.S. Magistrate Judge William Callahan that the defendant's motion to suppress evidence be denied because the cameras did not record footage of the property’s residence or curtilage, which is the property just around the home.
Marco Magana and Manuel Mendoza were charged with several drug crimes after the camera footage helped authorities gain evidence that more than 1,000 marijuana plants being grown. CNET reported that if found guilty, the pair could face life in prison and up to $10 million in fines.
In July of this year, officers entered the property, outside the curtilage, saw marijuana plants growing and installed cameras. Callahan's recommendation records that a few days after this, a warrant was obtained to authorize the installation of the cameras.
Motions were filed that evidence from the video footage should not be presented in a trial, because the defendants believe under the Fourth Amendment authorization from the court would need to have come before the cameras were installed. Callahan wrote that the area under surveillance though is not protected under the Fourth Amendment, basing his argument using a 1984 ruling that found "open fields" were not protected. He continued writing that a court case decided upon earlier this year -- United States v. Jones where it was ruled tracking vehicles with a GPS device required a warrant -- reaffirmed open fields wouldn't require a warrant.
"Magana and Mendoza urge the court to suppress because the locked gate, the alleged 'No Trespassing' signs, and the fact that the Property is heavily wooded could lead to a subjective expectation of privacy," Callahan wrote. "In Oliver, however, the Court rejected this same argument, reasoning that, under a case-by-case approach, 'police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy.'”
The judge stated that since it would be legal for a police officer to enter the property and collect evidence, it is therefore legal to install cameras because "the Supreme Court has upheld the use of technology as a substitute for ordinary police surveillance" before.
Timothy Lee for Ars Technica writes some of his concerns over this ruling:
But this illustrates the absurdity of automatically allowing the police to automate any surveillance activities they're allowed to do manually. In arguments over warrantless GPS surveillance, for example, the government has insisted that installing a tracking device on a suspect's car is no different than having an officer manually follow the car, an activity that has always been permitted by the Fourth Amendment.
But the police only have the resources to tail a small number of suspects at any one time, and a suspect is likely to notice a car following him 24/7. So allowing the installation of GPS tracking devices dramatically increases the government's practical spying powers even if the formal law hasn't changed. And that, in turn, can diminish the privacy protections that are the whole point of the Fourth Amendment.
It is also noted in Callahan's recommendation that the record does not indicate whether the property was leased by the men or not. The magistrate judge did not feel this point needed to be addressed further to deny the defendants' motions, because there were other grounds on which he believed it could be dismissed.
CNET reports that a jury trial for the case is slated for January 22.
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