Curtilage and the 4th Amendment: Updating Privacy Law for New Technology

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By Lauren Guicheteau

With surveillance technology becoming cheaper and more advanced, law enforcement agencies are incorporating this technology into crime fighting strategies. However, the courts that regulate the activities of law enforcement still rely on outdated privacy jurisprudence that does not weigh the new realities of advanced technology. Recently, U.S. District Judge William Griesbach for the Eastern District of Wisconsin denied a request to suppress video evidence that Drug Enforcement Administration (DEA) agents had gained from installing cameras on private property without a warrant. The private property in question was a large area of land that was surrounded by a fence bearing “no trespassing” signs. The cameras were installed to get video of defendants, Marco Magana and Manuel Mendoza, using the land to grow marijuana.

The judge denied the defendant’s request to suppress the video evidence by adopting the recommendation of a U.S. Magistrate Judge. The judge’s decision relied mostly on Supreme Court precedent from Oliver v. United States, 466 U.S. 170 (1984), which held that law enforcement officers can enter and observe open fields without a warrant, even if they are trespassing on private property. This case explained that the Fourth Amendment does not protect against searches of land that is located outside of the curtilage, or the area immediately surrounding the home. Video surveillance is also allowed in the present case, according to the U.S. Magistrate Judge, because “the Supreme Court has upheld the use of technology as a substitute for ordinary police surveillance.”  Further, there is no legitimate expectation of privacy in an open field, so camera surveillance would be allowed under the privacy standards established by Supreme Court in United States v. Jones, 132 S. Ct. 945 (2012).

This case highlights that as technology develops, the constitutionality of law enforcement surveillance becomes more complex. As commentators have pointed out, at some point it becomes absurd to hold technology to the same standard as surveillance performed by human officers. Slowly, the court system is starting to analyze the real implications of new surveillance technology. The Supreme Court has previously rejecting warrantless thermal imaging,  and in January the court went on to reject warrantless GPS tracking. However, there are still many issues that the courts are struggling to address, such as warrantless cell phone tracking and the use of drones for law enforcement and commercial purposes. This is specifically pertinent in Seattle where the police department will soon use unmanned drones in cases involving homicide, traffic investigations, search-and-rescue operations, hazardous materials, barricaded people, and natural disasters. Keeping the advantages and the dangers of these technological advances in mind, the U.S. courts need to re-evaluate the legal protections of the Fourth Amendment for the modern world.

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