This is especially troubling since the federal government has conducted more warrantless surveillance over the past two years than the entire previous decade. This court decision can only be expected to increase that already troubling number.
Let us not forget that the Obama administration has fought vigorously to hold on to their ability to conduct warrantless wiretapping while also claiming that cell phone location data is not protected by the Constitution and the Supreme Court recently refused to review a lawsuit challenging the warrantless surveillance program of the National Security Agency (NSA).
According to CNET, U.S. District Judge William Griesbach ruled “that it was reasonable for Drug Enforcement Administration agents to enter rural property without permission — and without a warrant — to install multiple “covert digital surveillance cameras” in hopes of uncovering evidence that 30 to 40 marijuana [plants] were being grown.”
Griesbach’s decision was actually based on a recommendation issued by U.S. Magistrate Judge William Callahan on October 9.
Callahan’s recommendation claimed that the DEA actually did not violate the Fourth Amendment by conducting warrantless surveillance.
“The Supreme Court has upheld the use of technology as a substitute for ordinary police surveillance,” wrote Callahan in his recommendation.
The case surrounds Manuel Mendoza and Marco Magana of Green Bay, Wis. Both Mendoza and Magana have been charged with federal drug crimes that carry potential fines of up to $10 million along with life in prison.
Steven Curran, a DEA agent, claimed he discovered over 1,000 marijuana plants on a 22-acre heavily wooded property owned by Magana. The defendants called on Callahan to throw out the video evidence collected by the DEA based on the fact that there were “No Trespassing” signs posted throughout the property along with a locked gate, thus making the evidence collected a violation of the Fourth Amendment.
Around four days after the DEA installed the surveillance cameras on Magana’s property without a warrant, a magistrate judge granted a warrant for surveillance. Mendoza and Magana’s attorneys rightfully pointed out that the surveillance took place long before the warrant was actually granted.
Callahan made his recommendation based on Oliver v. United States, a 1984 Supreme Court case in which the majority of justices ruled that “open fields” could indeed be searched without obtaining a warrant. They based this decision on their claim that open fields are not actually covered by the Fourth Amendment.
If the land is immediately surrounding a residence, on the other hand, it has greater privacy protections based on a legal concept known as curtilage.
“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,” Department of Justice prosecutors James Santelle and William Lipscomb told Callahan.
“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,” argued Magana’s attorney Brett Reetz in a legal filing.
“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,” Reetz added in last month’s legal filing.
Writing for CNET, Declan McCullagh paints a quite disturbing picture of where this precedent could lead.
“As digital sensors become cheaper and wireless connections become more powerful, the Justice Department’s argument would allow police to install cameras on private property without court oversight — subject only to budgetary limits and political pressure,” McCullagh writes.
The ugly reality is that legal precedents such as these serve to reinforce the constant erosion of our most essential rights. So long as judges continue to support the consistent undermining of our Constitutional rights, this disturbing trend will undoubtedly continue and will likely get significantly worse.
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