Monday, December 03, 2012

9th Circuit Gives the A-OK For Warrantless Home Video Surveillance by USFWS Agents

Can law enforcement enter your house and use a secret video camera to record the intimate details inside? On Tuesday, the Ninth Circuit Court of Appeals unfortunately answered that question with "yes." U.S. Fish and Wildlife agents suspected Ricky Wahchumwah of selling bald and gold eagle feathers and pelts in violation of federal law. Equipped with a small hidden video camera on his clothes, a Wildlife agent went to Wahchumwah's house and feigned interest in buying feathers and pelts. Unsurprisingly, the agent did not have a search warrant. Wahchumwah moved to suppress the video as an unreasonable search under the Fourth Amendment, but the trial court denied his motion. On appeal before the Ninth Circuit, we filed an amicus brief in support of Wahchumwah. We highlighted the Supreme Court's January 2012 decision in United States v. Jones -- which held that law enforcement's installation of a GPS device onto a car was a "search" under the Fourth Amendment -- and specifically focused on the concurring opinions of Justices Alito and Sotomayor, who were worried about the power of technology to eradicate privacy. In our brief we argued that although a person may reveal small bits of information publicly or to a house guest, technology that allows the government to aggregate that data in ways that were impractical in the past means that greater judicial supervision and oversight is necessary. After all, a video camera can capture far more detail than the human eye and is specifically designed to allow the government to record, save and review details for another day, bypassing the human mind's tendency to forget. That means police need a search warrant to engage in the type of invasive surveillance they did in Wahchumwah's house. Unconvinced, the Ninth Circuit instead relied on a case from 1966, Hoffa v. United States, ruling that Wahchumwah forfeited his privacy interest when he "voluntarily" revealed the interior of his home to the undercover agent. But its conclusion contradicts not only the Supreme Court's decision in Jones, but also earlier Ninth Circuit caselaw as well...more

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