Cops Don’t Need a Warrant to Put Cameras on Your Property

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Law enforcement agents do not need a warrant to install surveillance cameras on private property, a federal judge affirmed last month.

The question came before district Judge William Griesbach in Wisconsin after Drug Enforcement Agency agents uncovered a massive marijuana growing operation with the help of cameras they set up in the yard of the suspected grow house. Defendants Manuel Mendoza and Marco Magana were arrested and face life in prison plus $10 million in fines after the DEA found over 1,000 pot plants on their property.

Attorneys for the defendants protested, pointing out that the cameras used to gather evidence were up and running for four days before a warrant was issued for them. “That one’s actions could be recorded on their own property . . . is contrary to society’s concept of privacy,” attorney Brett Reetz wrote 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.”

No dice, the judge ruled — the warrantless cameras are fine. The defendants will be tried starting in January.

Open Fields Doctrine

The Fourth Amendment to the Constitution guards citizens against unreasonable searches, which usually means that police need a warrant to enter a person’s house and dig through their stuff. However, surveillance is only considered a search if the subject has a reasonable expectation of privacy.

“What they’re saying here is that this is not a search,” says Nathaniel E. Burney, a criminal defense attorney at the Burney Law Firm in New York City. “This law has been pretty settled for 30 years now, that police can go into fields.”

Nathaniel E. Burney

The police may not search the immediate area around a house (known as the curtilage in legal terms), but the yard is fair game. The locked gate and “No Trespassing” signs posted on the defendant’s property are irrelevant since the legal issue at stake is privacy, not property rights. “The issue is, do you have a reasonable and legitimate expectation of privacy in the area that they’re going into,” Burney explains. “Basically the rule is, if an ordinary person could have seen it, it’s okay that the police have seen it.”

The precedent was set in the 1984 Supreme Court decision Oliver v. United States, another marijuana case in which the court ruled that Kentucky police were allowed to walk onto private property under an “open fields” doctrine.

The Government is Watching

A new wrinkle in the Wisconsin case is that the DEA didn’t just walk onto the property to observe, they actually set up cameras, but that didn’t make a difference in the judge’s ruling. “The police are allowed to augment their senses with cameras, microphones, etc,” says Burney. “It’s not a Fourth Amendment issue if it’s not a search in the first place.” By the same logic, police could fly over a field to look for weed plants or other illegal activity without a warrant, since an average person could in theory do the same thing.

Precedented or not, the judge’s ruling is sure to stoke the fears of people who are increasingly worried that the government is using newfangled technology to spy on them without even having the courtesy to ask for a warrant.

Ultimately, however, in court it doesn’t matter what people think if it conflicts with settled law and judicial precedent. “People might not like the law as it is,” Burney says. “You may yourself think you have an expectation of privacy as a matter of law, but it’s not a reasonable expectation of privacy.”