Judge to Police: Feel Free to Invade Citizens' Property Without Warrant, Plant Cameras
November 2, 2012 3:01 PM
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
, 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.
A federal judge has approved planting cameras on citizens private property without warrant. [Image Source: Reuters]
In a closely watched case, the federal judge
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.
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
, 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 [
] in 2010. Of those incarcerated, 70 percent were imprisoned [
] for non-violent crimes, with nearly half of those serving prison time having lost their liberty due to non-violent drug offenses [
]. One in eight (roughly 1 out of every 800 Americans) are imprisoned for marijuana offenses, according to the
U.S. Bureau of Justice Statistics
Experts estimate that the U.S. loses almost $50B USD [
] 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 [
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 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
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,
, "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. B
oth 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.
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".
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: WhiteHouse.gov]
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
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.
"If they're going to pirate somebody, we want it to be us rather than somebody else." -- Microsoft Business Group President Jeff Raikes
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