Washington district court beats back attempt to scrap due process says cops must follow the law of the land (the Constitution)

While it sometimes seems like due process is dead or dying in the U.S., it's important to remember there's a fair number of federal courts that are sticking to a more traditional standard of law, based on the U.S. Constitution.  In the last couple years the Supreme Court of the United States (SCOTUS) cracked down on warrantless phone searches and warrantless tracking of suspects via GPS bugs.

I. He Sees You When You're Sleeping, He Knows When You're Awake...

The Electronic Frontier Foundation (EFF), a prominent digital era civil liberties group, reports that Senior Judge Edward F. Shea of the U.S. District Court for the Eastern District of Washington (WAED-USDC) has delivered a salient decision regarding video surveillance.  In the case United States v. Vargas local police in Washington's so-called "tricities region" (composed of the cities of Richland, Pasco, Kennewick) suspected a resident, Leonel Michel Vargas, of being part of a local drug distribution ring.

The local law enforcement officer (LEO) investigating Mr. Vargas, Detective Aaron Clem (an officer of the City of Kennewick), hatched plans to attach a hidden camera to the top of a telephone pole on a hill that overlooks Mr. Vargas's residence.  Eager to rid himself of the "burden" of due process the LEO never filed for a warrant, which would have required him to present evidence to a judge and have their request scrutinized.

Spy Camera
The FBI, without warrrant, planted a disguised camera, such as the one seen above, on a telephone pole overlooking a suspect's property.  Local law enforcement proceeded to watch him for six weeks.
[Image Source: rstan/MIT]

Instead he merely sought the informal approval of his supervisors, closing the door on pesky Constitutional rights.  The process was clearly condoned by federal cohorts at the U.S. Federal Bureau of Investigation (FBI), who helped Detective Clem by installing the camera.

Once installed the camera watched Mr. Vargas' residence around the clock. Even when the agent on the case and local law enforcement were off duty, the camera was still backing up footage for later review.

Over the course of six months of monitoring, which began on April 4, 2013, Detective Shem was never able to spot evidence of Mr. Vargas using or selling illegal narcotics.  But his hidden camera did spot Mr. Vargas and friends engaging in target practice with a firearm.

That's where Detective Shem became a bit creative.  Speaking with U.S. Immigration and Customs Enforcement (ICE) officials, he was alerted that Mr. Vargas might be an illegal alien.  Illegal aliens are forbidden by law from possessing or using firearms, under 18 U.S.C. § 922(g)(5).

Now Detective Shem had evidence to convince a judge Mr. Vargas had committed a crime, even if there was no evidence of drug crime yet. Obtaining a warrant based on the spycam footage, he raided the house.  In the house he and other agents allegedly found four firearms and 5 grams of methamphetamine, along with small bags commonly used in distribution of the drug.

Crystal Meth
After raiding Mr. Vargas' home on unrelated weapons charges, local detectives found what they were really looking for -- 5 grams of crystal methamphetamine (a gram of meth is pictured above).
[Image Source: Getty Images]

Mr. Vargas was charged with criminal violations of 18 U.S.C. § 922(g)(5) and 21 U.S.C. § 841(a)(1) (intent to distribute 5 grams or more of actual meth.

Mr. Vargas's lawyers contacted the EFF about the case, as it was a fairly strong example of LEOs using warrantless video surveillance of private property.  The EFF supported Mr. Vargas in his motion to suppress the evidence, which the EFF, et al. argued was unconstitutionally obtained.

II. Federal Judge Spying on Someone's Yard and Home is Still Unconstititional

Judge Shea sided with the EFF on Monday (12/15), to the chagrin of the U.S. Attorney's Office (USAO) who was prosecuting the case.  In his ruling he acknowledged that sometimes video surveillance is a powerful tool for law enforcement.  But he also ruled that secret video surveillance of someone's home for weeks on end was a violation of Fourth Amendment protections.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The key passage is "secure in their... houses... against unreasonable searches and seizures."  This clearly implies that suveillance of someone's home -- their private residence -- is illegal without warrant.  Further, past cases have ruled that under the concept of "curtilage", a person's yard is considered part of their home.

That means that even though the warrantless surveillance mostly collected its evidence by watching Mr. Vargas and his friends hanging out in their yard, the collection still ostensibly violated Mr. Vargas' rights.

The court ruled cops can't spy on your in your yard and home, without a warrant.
[Image Source: iStock Vector]

Judge Shea elaborates:

The Court rules that the Constitution permits law enforcement officers to remotely and continuously view and record an individual’s front yard (and the activities and people thereon) through the use of a hidden video camera concealed off of the individual’s property but only upon obtaining a search warrant from a judge based on a showing of probable cause to believe criminal activity was occurring.  The American people have a reasonable expectation of privacy in the activities occurring in and around the front yard of their homes particularly where the home is located in a very rural, isolated setting.  This reasonable expectation of privacy prohibits the warrantless, continuous, and covert recording of Mr. Vargas’ front yard for six weeks.

Here's the full text of the ruling:

Also of interest, Judge Shea notes that there a number of troubling irregularities in the footage taken during the six-week surveillance period.  He writes:

Although Agent Clem testified that the recording was continuous for this six-week period, there are segments on the hard-drive recording and the DVD that “jump” in time.  The Court is unsure whether these time jumps, which typically range from thirty minutes to two hours, are caused by a recording malfunction or whether law enforcement deleted these segments from the recording. 

He also questioned why Detective Shem and other LEOs repositioned the camera prior to the raid, so as to not video tape the proccess.  While not illegal, this behavior certainly seemed questionable, as you would expect Detective Shem would want to tape the raid for potential evidence were the raid being performed in a lawful manner.

III. Why You Should Care

The court did rule that the applicability of curtilage might require deeper examination, were the home in an urban or public setting.  Thus, while it shut the door on warrantless video surveillance in rural regions, more court decisions will still be require to see how far digital due process extends.

It seems like the issue may eventually reach the SCOTUS, as the USAO appears likely to appeal in this case.  Based on recent SCOTUS rulings, though, the USAO shouldn't hold out too much hope that the SCOTUS will back them up in their bid for Orwellian constants surveillance of "supects" private property without warrant.

Police State
A ruling upholding universal video surveillance without warrant would set an alarmingly permissive precedent for America's police state. [Image Source: SeattlePi

Unless a higher court overturns the decision, Mr. Vargas should be a free man for now, but he will surely be under intense scrutiny by local LEOs.

While defending a meth dealer might seem questionable, it's important to remember that legal precedent affects other similar cases -- even very different ones.  The EFF summarized why law-abiding Americans should care about the ruling in its press release, writing:

The public got an early holiday gift today when a federal court agreed with us that six weeks of continually video recording the frontyard of someone's home without a search warrant violates the Fourth Amendment. 

Looking at these [Judge Shea's ruling] makes [it] clear [that] the court was convinced with our arguments that the invasiveness of constant video surveillance pointed continuously at one of the most sensitive and private places—the front of a person's home—triggers constitutional protection. Relying on cases decided almost 30 years ago, the government argued that it's unreasonable for people to expect privacy in an area visible to the public. But as we explained in our amicus brief, no one expects their house to be placed under invasive 24/7 video surveillance for a month. And as the U.S. Supreme Court recently reaffirmed in Riley v. California, the ability for technology to reveal a "broad array of private information" means courts must be particularly vigilant in protecting constitutional rights in the 21st Century. 

Had the video surveillance been upheld, it would have opened the door to federal officials potentially spying on political protesters and rival politicians under the premise of "suspicion" of hypothetical crimes.

Digital Constitution

And if Fourth Amendment protections are overqualified and eroded, other protections (i.e. protections against warrantless GPS monitoring and warrantless phone searches) could quickly find themselves on the chopping block as well.  Instead, the Washington federal judge strengthened Constitutional protections for America's citizens, forcing LEOs to follow due process and act in a lawful manner.

Sources: EFF [court order; PDF], [press release]

"So, I think the same thing of the music industry. They can't say that they're losing money, you know what I'm saying. They just probably don't have the same surplus that they had." -- Wu-Tang Clan founder RZA

Copyright 2017 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki