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  (Source: AP)
Federal court ruling opens the door to increased monitoring, abuse

The Fourth Amendment seems relatively explicit in its perspective on warrantless searches, surveillance, and seizures of Americans in their homes -- they're illegal. 

I. It's Okay For Agents to Invade Private Property (Sometimes)

The amendment to what is supposedly the most important document to the American government 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.

But federal courts and politicians have increasingly argued that the Fourth Amendment is an archaic and obstructive instrument.  To that end, they've sought to stretch the bounds of "reasonable" searches/seizures to cover virtually any case, in effect repealing the protections of the Fourth Amendment, without a vote by the public.

The latest step down that path comes courtesy of U.S. District Judge William Griesbach, who has served on the United States District Court for the Eastern District of Wisconsin ever since his 2002 nomination by President George W. Bush.

U.S. police trooper
A federal judge has approved planting cameras on citizens private property without warrant. [Image Source: Reuters]

In a closely watched case, the federal judge ruled that the Constitutional rights of two defendants -- Manuel Mendoza and Marco Magana of Green Bay, WI -- were not violated when federal agents with the U.S. Drug Enforcement Administration (DEA) invaded their private property without warrant to plant wireless surveillance cameras.  The judge also ruled that the collected evidence could be used against the defendants.

The judge argued that the 22-acre property's numerous "no trespassing" signs did not apply to federal agents -- with or without warrant.

II. Defendants Face Life-in-Prison for Growing Cannabis

The DEA reportedly found 1,000 marijuana plants growing on the property.

While medical studies have shown that marijuana has no more personal or public adverse health effects than America's "legal" drugs -- alcohol, tobacco, and prescription methamphetamines -- it has been illegal in the U.S. since 1970.  The Controlled Substances Act of 1970 called on the federal government's official drug cartel agency, the U.S. Food and Drug Administration, to classify the plant as a Schedule I drug with "no medical use".  That makes it more restricted than even cocaine, which while also a Schedule I drug, can be used in a clinical setting to treat severe nosebleeds.

Due to the classification, the two defendants face the possibility of a life sentence and $10M USD in fines.  A jury trial is scheduled for Jan. 22, 2013.

Justice Department prosecutors James Santelle and William Lipscomb argued in briefs, "Placing a video camera in a location that allows law enforcement to record activities outside of a home and beyond protected curtilage does not violate the Fourth Amendment."

The prosecutors are referring to an interesting dichotomy in past rulings by the Supreme Court of the United States (SCOTUS), the highest court in the land.  In the 1984 Oliver v. United States decision, the SCOTUS ruled that private property that fell under the category of so-called "open fields" could be invaded by federal agents without warrant.  The case has been challenged, as it essentially says that if you can afford a fence you can get better legal protections and if you can't you're out of luck.  But the case has not been overturned.

The defendants face life in prison.  The U.S. imprisons a higher percentage of its population than any other nation in the world.  [Image Source: Banmiller on Business]

"Curtilage" is the land surrounding a residence, which appears to be still protected under the Fourth Amendment, based on the SCOTUS's past rulings.

But Judge Griesbach could have compelling cause to go in the other direction.  While the SCOTUS has refused to hear cases on warrantless wiretapping, phone tracking, or warrantless use of surveillance cameras; in recent months it has struck down other forms of warrantless surveillance.

In Jan. 2012, the SCOTUS unanimously (9-0) ruled that wireless GPS tracking without warrant was illegal.  Likewise, in Kyllo v. United States, the SCOTUS narrowly (5-4) ruled that warrantless thermal imaging (in a similar marijuana growing case) was illegal.

In choosing to overlook those decision and base the ruling solely on Oliver, the federal judge in the recent cases was acting in an activist manner to effectively repeal Constitutional protections, the defendants' lawyers argue.

Brett Reetz, Magana's attorney, comments, "That one's actions could be recorded on their own property, even if the property is not within the curtilage, is contrary to society's concept of privacy.  The owner and his guest... had reason to believe that their activities on the property were not subject to video surveillance as it would constitute a violation of privacy."

III. Criticism Over U.S. Warrantless Policing Abounds

Drug enforcement is the subject of much controversy in the U.S.

America incarcerates more of its population than any other nation in the world -- nearly 1 percent (~2 million) of the population -- at a projected cost of $80B USD or more [source] in 2010.  Of those incarcerated, 70 percent were imprisoned [source] for non-violent crimes, with nearly half of those serving prison time having lost their liberty due to non-violent drug offenses [source].  One in eight (roughly 1 out of every 800 Americans) are imprisoned for marijuana offenses, according to the U.S. Bureau of Justice Statistics (BJS).

Experts estimate that the U.S. loses almost $50B USD [source] in potential tax revenue by outlawing marijuana -- roughly $2T USD over the forty years of the war on drugs.  Combined with the net cost, that works out to roughly $3T USD -- enough to pay off a third of the U.S. national debt [source].

The prohibition on domestic growth has also led to a steady stream of illicit harvests flowing across America's southern border and fueling a murderous drug war in Mexico that has claimed thousands of lives.

Ron Paul
Ron Paul argues that the country is going down a dark path. [Image Source: NBC]

Some like Texas Rep. Ron Paul (R), who have a front row view of the immigration debate and "War on Drugs" have advocated decriminalizing marijuana.  Rep. Paul is quoted as saying, "And marijuana - I think it's tragic what's happening today in the drug war. Since the early '70s we've spent maybe $200 to $300 billion on the drug war. That's not been any good. This whole effort on the drug war doesn't make any sense at all to me."

Likewise, warrantless monitoring is the subject to much debate.

Civil liberties advocacies like the Electronic Frontier Foundation (EFF), and a handful of politicians like Rep. Paul argue that warrantless surveillance is inherently unconstitutional.  Rep. Paul argues that the American political system has been hijacked by zealots, commenting, "The PATRIOT Act was written many, many years before 9/11, [the attacks simply provided] an opportunity for some people to do what they wanted to do..."

"Democracy isn't all that healthy in this country because if you're in a third party... you don't get in the debates... And if you ever come to the conclusion -- heaven forbid -- that the two parties aren't all that different, then what is left really?"

IV.  Heads of the Nation's Ruling Parties Support Warrantless Policing

But there are powerful interesting opposing such lines of thinking.  Both Democratic President Barack Obama and Republican challenger Mitt Romney support throwing out due process (warrants) in cases where national security is viewed to be at risk -- a policy first put in place by Republican President George W. Bush (with bipartisan support from America's two ruling parties) in the wake of the 9/11 terrorist attacks.  

Both candidates also support outlawing and imprisoning folks for smoking or growing marijuana, despite Barack Obama admitting to having smoked the substance in his younger years for "stress relief".

Bush and Obama
President Obama and his predecessor President Bush agree on many things, including that the federal government should be granted unregulated spying on its citizens.
[Image Source:]

Mr. Romney expressed a viewpoint narrowly in line with President Obama's plugging warrantless wiretaps in a recent interview (see below), stating, "If it means we have to go into a mosque to wiretap or a church, then that's exactly where we are gonna go, because we are going to do whatever it takes to protect the American people. And I hear from time to time people say, 'Hey, wait a sec, we have civil liberties to worry about', but don't forget... the most important civil liberty I expect from my government is my right to be kept alive."

In a statement on the SCOTUS ruling, President Obama marched in lock-step with his political rival, with his press office writing [PDF]:

Electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of the private companies that operate the nation's telecommunication system.

If litigation were allowed to proceed against those who allegedly assisted in such activities, the private sector might be unwilling to cooperate with lawful government requests in the future, and the possible reduction in intelligence that might result is simply unacceptable for the safety of our nation.

Now those advocates of warrantless surveillance have another victory in hand, while the critics are left searching for answers and fresh hope.

Source: CNET

Comments     Threshold

This article is over a month old, voting and posting comments is disabled

And what about aerial/satellite surveillance?
By boeush on 11/2/2012 5:55:10 PM , Rating: 2
Brett Reetz, Magana's attorney, comments, "That one's actions could be recorded on their own property, even if the property is not within the curtilage, is contrary to society's concept of privacy. The owner and his guest... had reason to believe that their activities on the property were not subject to video surveillance as it would constitute a violation of privacy."
So when an over-flying helicopter, airplane, or drone photographs or films huge swaths of land, or an overhead satellite produces similar high-resolution images at many various wavelengths (including infrared), they must now first get a specific warrant on every single person whose dwellings are located within the broad area being imaged? Criminy... And yeah, I'm sure the CIA and NSA (not to mention, foreign intelligence agencies) will honor such rules just for the heck of it.

It's one thing to be secure against unwarranted search and seizure inside your own home, vehicle, or on your own person. But to cry foul over being merely watched while being outside, is just zombie-stupid.

Even if those agents didn't set up the cameras directly on the property in question, would it still not be the same exact thing if they set up those cameras somewhere far away, but attached to high-powered telescopes trained on the property in question? What would be the tremendous constitutional difference between the two set-ups?

Look, I'm all for restraining warrant-less searches and communications eavesdropping, and I'm whole-hog against the drug war (and for legalization of cannabis), but in this particular case I just don't see either logic or reason on the side of the defendants' "Constitutional" argument.

By boeush on 11/2/2012 6:00:50 PM , Rating: 2
Though I'd like to add one other thing: as far as trespassing goes, I do believe a warrant ought to have been sought. Otherwise, trespassing without a warrant does sound like some sort of a (minor) crime. But I doubt if that's in itself enough to justify throwing out the collected evidence. Yet it ought to be enough to trigger disciplinary action on the agents involved (including fines, demotion, or something along those lines.)

RE: And what about aerial/satellite surveillance?
By Solandri on 11/2/2012 7:58:29 PM , Rating: 2
So when an over-flying helicopter, airplane, or drone photographs or films huge swaths of land, or an overhead satellite produces similar high-resolution images at many various wavelengths (including infrared), they must now first get a specific warrant on every single person whose dwellings are located within the broad area being imaged?

Video searches in infrared were ruled to require a warrant by the Supreme Court.

The reasoning of the court was that although Kyllo's residence was visible to the public via infrared, viewing in the infrared band was not something normally conducted by the public. As such it constituted a search rather than gathering publicly viewable info, and thus needed a warrant.

I get the impression Scalia (who wrote the majority opinion) was thinking much more broadly. Things like using a laser interferometer shining on a window to pick up vibrations, and thus reveal the conversation which is going on inside. Yes technically the vibrations of the window are visible to the any member of the public with the right equipment. But the fact that technology has made walls ineffective should not be interpreted as meaning the residents did not have an expectation of privacy because of the walls. (Note: I think the same goes for airport scanners which can see through your clothes. Just because they can doesn't mean you should be free to look through everyone's clothes.)

That said, it was a 5-4 decision. So I wouldn't be surprised to see it modified or overturned in the future.

By Master Kenobi on 11/4/2012 12:46:14 PM , Rating: 1
Scalia is an interesting justice and one that does quite a bit more thinking than the press gives him credit for much of the time. I personally like the guy, he surely earned his slot on the bench without question.

By JediJeb on 11/3/2012 1:05:39 PM , Rating: 2
The key is "warrantless". Why is it so terrible to spend a day or so obtaining an warrant? If they thought maybe they were in the act of killing someone right then and there then probable cause would suffice to take action, but to catch someone growing pot, you have months to go through the process of obtaining a warrant to place the cameras, which even if it was inside their home would be legal if a warrant was procured first.

To me the excuse of not wanting to spend the time to get a warrant for these types of surveillance is about as ridiculous as saying you are going to write the owner of a Corvette a speeding ticket without catching him with a radar gun simply because you are sure he will eventually drive above the posted speed limit. If a law enforcement agency has enough intelligence to suspect that someone could be breaking the law, then they should have enough to justify a warrant, if not, they need to do their work and gather enough to support their hunch that someone is doing something illegal so that they can legally obtain the warrant. Whether it is in law enforcement or in chemistry which I work in, I hate to see people become lazy and try to shortcut their work because it leads to poor results and wasted resources in the end, just do what you should and get proper results the first time.

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