Did Police Go Too Far With Surveillance In This Case?

Police mounted a PTZ on a pole for more than a month across the street from the house of a man (Leonel Vargas) suspected of drug trafficking. They did this without a warrant.

For the first month they didn’t see anything interesting that would help nail him. Their break came when they observed Vargas shooting a gun at beer bottles in his yard. They used this to get a warrant to enter his house where they found drugs and guns and then filed formal charges against him.

Vargas argued that the footage of him shooting the gun, the reason for the warrant in the first place, should be thrown out because the camera faced his yard and the door of his house, which is usually afforded the same protection as the inside of a house, however the government argued that he had no expectation of privacy in the front of his house. The EFF has submitted a brief in the case arguing that prolonged warrantless surveillance violates the fourth amendment.

Here is one of the images they were able to capture from across the street:


If you don't want to get busted for dealing drugs, maybe you shouldn't deal drugs? The legal system in this country was supposed to make sure no innocent man was jailed at the expense of a few guilty walking free. But it seems like that is an ever difficult line to walk. Only the innocent follow the laws, yet they are the only ones who have something to lose.

So, I say that the cam was justified and should be allowed. It is the sI molar to how they finally got Al Capone. Sometimes you have to work outside the box to get the bad guy. It's never a fair fight.

You can record video of someone's activities for a month without a warrant??

Let's be logical here John, what is the difference between 10 mins or a week or a month or even a year? It doesn't change anything for me. Recording is recording, regardless of how long.

Give me your address. I'll set up permanent surveillance outside your house. And you know what, I'll broadcast it on the Internet.

I mean, recording is recording, regardless of how long, right?

LOL but have we established that the hot tub is fair game?

Why the time difference matters: Once you start video recording someone/tracking someone by GPS/watching someone for a long period of time it constitutes a search.

The reason: Because it goes beyond just recording because then you are able to track someones patterns and get more information about their habits and life that you would not normally get.

There was a recent Supreme Court case that touched on the length of searches. In this case police put a GPS device on a man's car and tracked him for a month. One Supreme Court Justice said in a case, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” The court also said "Police now have access to a cheap technology that can produce a significant amount of data. The Court must consider this a search—presumably requiring a warrant—to provide adequate oversight over the executive branch."

All nine Supreme Court Justices agreed (for different reasons) that tracking someone for long periods of time is a search. And the law says a search requires a warrant.

Reference: United States vs. Jones

John, you already have my address. You are welcome to watch my boring, law abiding ass any day of the week and twice on Thursday. You will be bored of my non-dramatic life long before the Supreme Court would forbid your stay.

Jon,

As Bruce Schneier pointed out years ago, your argument "..accepts the premise that privacy is about hiding a wrong. It's not. Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect."

It's a shame it has come to this, but the truth is you might not like just how far we gone in the last 10 years since 911.

This happens all the time all over the world, and Why is this such a big deal.

Your Name,Phone,Address, Many other important facts about you are already readily available to the public if you know how to find them.

Resources

Privacy is only inside your home or resonable expected private area.

Any time you use any public service or communications system anywhere your under survaillance.

Any Public street, area, common can be used in court.

and the truth be known we have sat. s that will see even into those areas and with good imaging and definition.

If those people are doing unlawful activities and knowingly then these people should be watched.

And Brought to justice before the community we live in turns into a trash pit of drugs, and crime.

I support this action .

Yes !!!

Police Surveillance is never justified by the evidence the surveillance eventually found. Watch anyone long enough and eventually you will catch them violating some law or ordinance: in traffic alone, speeding, failing to come to a complete stop, or numerous minor offenses are committed at least occasionally by nearly every driver. When you add in all of the blue laws and dumb local ordinances, I would bet we're all guilty of at least the occasional minor transgression.

So do you think the police would be justified placing cameras everywhere and strictly enforcing every law and penalizing every lawbreaker just because they can?

The point to requiring search warrants is to at least maintain some semblance of control over a potential police state where everyone is surveilled constantly, whether they are legitimately suspected of committing crimes or not. Obviously, the police did not have enough evidence to obtain a search warrant before placing the camera on the pole so it was, in essence, a fishing expedition.

Whether the end justifies the means is moot. In my opinion, this is a case where the guilty will have to go free to protect the innocent. Blackstone's formulation states: ""It is better that ten guilty persons escape than that one innocent suffer." That is even more true today in an age where the government is spying on innocent citizens in their zeal to "protect" us from even highly unlikely terrorist attacks.

There is no real expectation of privacy in your front yard (assuming it has an open view to the street), it does not appear they were looking into his house with the camera. I don't see any issue with that.

However, using that video (possibly a firearms parole violation) as an excuse for a search warrant for a larger offense (drug trafficking) is where it gets flaky for me. The cops probably wanted an excuse to search his home for drugs and found one. The firearm was likely inconsequential.

All that being said, we're probably not dealing with a very smart individual if he is shooting at beer bottles with a rifle in his front yard within view of an overt video camera mounted in plain sight. a pole mount PTZ is hard to miss. I'm surprised he didn't shoot at that instead.

"All that being said, we're probably not dealing with a very smart individual if he is shooting at beer bottles with a rifle in his front yard within view of an overt video camera mounted in plain sight. a pole mount PTZ is hard to miss. I'm surprised he didn't shoot at that instead."

He knew it was there. He aimed at it. This photo is from the criminal complaint:

Missed that. That's a rock solid case for a firearms violation depending on local ordinance. I'm still not sure it justifies a search warrant to look for drugs in the house. Doesn't a warrant need to be specific as to what items are being searched for?

Yes a warrant must be specific, but anything found in the course of serving the warrant is usually fair game. For example, if I have a warrant to search for a stolen wedding ring, then I can search anywhere a wedding ring could be hidden. If I find a brick of coke in the nightstand in the process, then someone is still going to jail.

That's what I thought, but as Carlton convicingly argues here, apparently as long as they are looking where they should be and something presents itself, your done.

The only legal theory to argue is that L.E. was overbroad in its execution, but I found few cases where defendants prevailed and too many to count where they did not...

Carl, don't tell me that you would prefer we have laws on the books that we don't really enforce? That is rediculous. Laws are made to be enforced, because if they weren't, there is no use for them. Maybe you honestly believe what you posted, but it is quite strange that someone could be so dismissive of the law.

If you speed, pay the ticket. Don't want to pay a speeding fine, don't speed. Really simple stuff. Don't want a fine for failure to stop, make sure you hit the brakes. Don't want to serve a life term or ride the lightning? Don't murder anyone.

If you mess up and break the rules, stand up and take it on the chin and be accountable for your actions.

There are literally thousands of laws on (all) the books that are not enforced.

Maybe you honestly believe what you posted, but it is quite strange that someone could be so dismissive of the content of the replies to someone's original post.

You completely avoided/ignored any of Carl's points just so you could reiterate your original position.

Jon,

I could give you literally hundreds, if not thousands of examples of laws on the books that are not enforced. Just a few from my former home state:

  1. No food or lodging shall be afforded to a Quaker, Adamite, or other Heretic.
  2. If any person turns Quaker, he shall be banished, and not suffered to return but upon pain of death.
  3. Every male shall have his hair cut round according to a cap.
  4. No one to cross a river, but with an authorized ferryman.
  5. No one shall run on the Sabbath day, or walk in his garden or elsewhere, except reverently to and from meeting.
  6. No woman shall kiss her child on the Sabbath or fasting day.
  7. When it appears that an accused has confederates, and he refuses to discover them, he may be racked.
  8. Men-stealers shall suffer death.
  9. A debtor in prison, swearing he has no estate, shall be let out and sold, to make satisfaction.
  10. Adultery shall be punished by death.

Obviously, the (pious) Connecticut Yankees didn't like Quakers. I wonder what brand of oatmeal they preferred?

I especially like the last one. If that law was actually enforced, the world's (or at least Connecticut's) population would be much smaller.

As far as speeding goes, I'm sure you have never sped in your life, LOL.

For even more stupid and unenforceable laws, check out this website

Some examples:

California: "No vehicle without a driver may exceed 60 miles per hour."

Blythe, CA: "You are not permitted to wear cowboy boots unless you already own at least two cows."

Carmel, CA: "A man can’t go outside while wearing a jacket and pants that do not match." "Women may not wear high heels while in the city limits."

Boulder, CO: "It is legal to challenge a police officer, but only until he or she asks you to stop."

Denver, CO: "It is unlawful to lend your vacuum cleaner to your next-door neighbor."

Alabama: "It is illegal to wear a fake moustache that causes laughter in church.", "Boogers may not be flicked into the wind.", "It is legal to drive the wrong way down a one-way street if you have a lantern attached to the front of your automobile.", "It is considered an offense to open an umbrella on a street, for fear of spooking horses."

Auburn, AL: "Men who deflower virgins, regardless of age or marital status, may face up to five years in jail." (Please don't turn me in for that)

Florida: "It is illegal to sell your children." (but maybe you can give them away....), "Men may not be seen publicly in any kind of strapless gown." (but that sexxy black dress.....), "Having sexual relations with a porcupine is illegal." (and painful.....)

Georgia: "It is illegal to use profanity in front of a dead body which lies in a funeral home or in a coroners office." (the dead can hear)

Ok, I admit that some of these are well past their time or outright absurd. I guess my comments should have said all reasonable laws. But, to be fair, the car without a driver thing is valid. Have you seen the Google car? I'm sure that's where that came from.

As as far as me speeding, funny thing is I was just ticketed yesterday morning for the first time in over 10 years. I was going 7 over in a 45. I can only blame myself. I was behind the wheel and in full control.

Honestly, what would have been the harm in getting a warrant for the camera? What was the value of the shortcut? Now law enforcement is facing unnecessary controversy. Warrants aren't that hard to get. They must have had some reason in the first place to have suspected him of peddling drugs. That should probably have constituted grounds for a warrant. Since it took a month to find anything to pin on him, exingent circumstance could hardly have been the reason.

The area seems relatively rural, so discharging the firearm in and of itself was probably insufficient grounds for further action. He must have discharged the firearm within 150 feet of a public road, or some other such nuisance law, to have a violation sufficient to justify a subsequent warrant. From a practical (but not law enforcement) perspective, they could probably have gone to his home and asked for that weapon and all ammo and received it without a warrant, but perhaps that firearms violation was really not the objective of the warrant, or else the story would not have started with, "Police mounted a PTZ on a pole for more than a month across the street from the house of a man (Leonel Vargas) suspected of drug trafficking."

I wouldn't be surprised if a good lawyer could have a fine romp with all the loose ends on this one.

Lazy...get the warrant.

I do find it disturbing the degree of acceptance there is for surveilance. I'm a Norwegian and I can truly say that the good image of USA has been severly degraded upon all the news about the NSA/CIA etc. and the surveilance done. And from where I'm standing it seems like there is very little opposition to this in the states.

In this case it's hard to say as the images seem to oversee an area which is in public view. If so, is this then different for any other surveilance camera?

If this points in to the individuals private areas of the property, then it's a different case. Where should this surveilance of individuals stop? What about an automatic GPS controlled ticketing system? Each time you drive to fast you automatically get a ticket. I bet that would reduce deaths and serious incuries on the US roads and as such be good for society.

Birger, thanks for the feedback. All this NSA / surveillance craziness is a source of embarrassment and grave concern for many of us. I do think there is significant opposition to this (see the uproar over 60 Minute's NSA coverage yesterday).

Right now, the practical barrier in the US to opposition is that you have a Democratic president defending this, so the typical source of resistance is not there. I am hopeful that the next few elections will change this.

When when our elected Senators and Representatives who are overseeing these programs are taking campaign contributions from surveillance/intelligence contractors, this is hardly an unexpected outcome.

Business as usual in DC...

Warrantless search is illegal. Any action that breaks or skirts the tennents of the US Constitution INCLUDING any state law or regulation is STILL illegal. Under the doctrine of "The fruit of the poison tree", if you break the Constitution by making an illegal law, that law can have no bearing or force. You could technically extend that doctrine by stating that the person who made that law is a criminal and any and all actions by that criminal from the day they created that illegal law are null and void.

The problem is that while no "lawmaker" is above the Constitution; there is no one who exclusively watches the watchers.

Remember that we also have our 5th amendment right against self incrimination, which includes GPS tracking of speed.

I've spent too many hours/days on live surveillances of residences hoping for a break in the case that arises from observing criminal activity in public view not to appreciate the police department's use of a stationary camera. Lying near-motionless in a bed of shrubbery for hours wihle ants crawled all over my body is a recurring bad memory that lends support to the camera option. Using stationary video surveillance is an accepted law enforcement option but in the instant example it apparently went well beyond what a reasonable and prudent citizen would consider acceptable, but only regarding the enduring nature of the surveillance. That is a question for the court to determine.

Observing unlawful activity in an area where there is no reasonable expectation of privacy e.g. a front yard is often used for the basis for a warrant and it should be so. Individual excesses should be examined by the court and if excessive then the validity of the warrant and resulting contraband found would be thrown out. THat's our justice system and it's an exceptionally sound one. North Korea's system of justice is more swift for sure but ours is the benchmark of the world.

I recall a landmark case out of I think South Dakota where the local PD, faced with a not-real-bright defendant, put a collander on his head, ran wires to a copy machine and under interrogation the "lie detector" spit out a piece of paper saying "He's lying". He confessed. Was that practice of deception during the interrogation wrong? It went a little bit too far as did the lengthy surveillance in this case.

"Was that practice of deception during the interrogation wrong? It went a little bit too far as did the lengthy surveillance in this case."

apples and doorknobs - The Bill of Rights to the U.S. Constitution protects citizens from unreasonable search and seizure - it does not offer any such protections from being lied to or fooled by law enforcement officers.

I agree, however, that the bedrock that this case rests on is the length of time the pole camera was observing the (according to police) 'unprotected open area'. Length of time this camera is posted here, compared to what the normal practice is for use of this (and other) camera(s) can infer the PD's intent to 'search' - without getting the legally required warrant to perform such searches.

I've spent too many hours/days on live surveillances of residences hoping for a break in ....

Now that's dedication! ;)

Jack,

I am sorry but I don't think our justice system is the benchmark of the world any more. Please see Birger's comment above for an outsider's view of how we are increasingly being seen. Also, I have had friends and co-workers from outside the US that have been amazed at how our courts can be (ab)used by the wealthy. See the recent case of the 16 year old drunk driver in Texas for an example of that.

These are of course just anecdotal cases. I may spend some time tonight and see if I can find any studies about how the USA is viewed now, as opposed to before 9/11.

You need a warrant. Anybody in LE surveillance in the past 5 years realizes that pole cameras can see a lot more than they could in the old days. Traffic cameras or cameras in public places are really the only cameras that you dont need one for, and if you look inside the curtilage of someone's property your video is going to get supressed without a warrant. I would suspect they had some reason to believe this property was public, or easily accessible to everyone, and thats why they were watching it without a warrant.

Steve,

What reason would they have to believe any of that was public?

Unwarranted surveillance has been approved by US courts when it comes to 'open fields' scenarios. In this situation, since it was the house and the immediate area surround the house, 'open fields' does not apply.

My view is the momement you have engaged in criminal activity you no longer have respect for societies rules and in this circumstance it was reasonable given the nature of the crime. Yes this could be a slippery slope but in this circumstance reasonably justified given crime and the infringment upon the laws of the land.

I would argue that everyone on this thread would change their views depending on their own personal involvement in this case.

For example:

If the friendly Mr. Vargas was your next door neighbor, dealing drugs and shooting his guns while your kids are walking back from school, would YOU:

  1. Still be concerned about his privacy?
  2. Welcome the police cameras in front of your house?

I know that if he was my neighbor, I would give the police a few free HD cameras, Video analytics and coffee and donuts every morning..

Sagy,

Finally! After all your many posts, I can disagree with something you've written. And I do so with great vehemence and indignation. (well, in a comical way maybe) :)

I absolutely disagree with "..everyone on this thread would change their views depending on their own personal involvement in this case."

Are you suggesting that we have no personal, nor collective substance to our beliefs and that we all would shallowly follow our emotional instincts in such scenarios? Or that we are as lazy as these LEO's apparently were when not finding another (legal) way to snag this drug-dealing loser? We are law-abiding citizens, my friend.

I maintain that the the bulk of the readers of IPVM, if presented with the scenario above, would devise ingenius schemes with which to trip up this human turd. If nothing else, we would do this simply so we can then pat ourselves on the backs for having devised such a wickedly elegent plan.

M

Granted, though the exact countermeasure would vary considerably with the personal prediliction of the representative member.

No doubt you are itching to deploy your own charlene, the quadcopter gunslinger par excellence...

I think that even if you invade a turd's personal airspace and recorded something "hinky" going on, the police, in addition to charging your self-sacrificial self, would be obliged to arrest turd based on your evidence, as it is in plain view. Perhaps Carlton could weigh in on admissiblity of such evidence.

You would be referred to as Martyr Major from then on.

P.S. If I was a turd i would especially scared of countermeasures from Matt, both Brians, and most chillingly from Carl.

Sagy, even if you are correct in saying everyone on this thread would change their views depending on their own personal involvement in this case", that is beside the point. If somebody harms my wife I would want them literally drawn and quartered. That is why I would not be allowed on the jury deciding their guilt, innocence or punishment. The law is to meant to be practiced dispassionately. If you were Vargas's lawyer would you allow his neighbor on the jury?

Randy,

You are missing the point. The people who are frequently infringing on the laws of the land are the cops or CIA/FBI/NSA/Acronym of the day themselves. The end does not justify the means or the US Constitution has no meaning.

It does not matter what crime the accused has supposedly committed (Last I checked you STILL DO have a right to a Jury Trial by your Peers before you can be considered "Guilty"), you cannot break the law in order to make the law. Why should anyone respect the rule of law as promulgated by dishonest cops? Talk about no respect for societies rules!

No warrant, no evidence - case closed, period - end of discussion. If we "Citizens" (Whatever that means today) are required to 'respond to the reasonable request of an officer" and respect the rule of law, then I call reciprocity.

If the police (or any other agency) can legally lie, cheat and steal to gain evidence; what makes them any better than the criminals that they are supposedly protecting us from? Why in God's green earth would you ever believe or trust them again?

In every country where this has become commonplace, the rule of law and democracy itself has become a laughingstock. Wherever nationwide gun registration has occurred, the government has come to take their guns away and immediately afterwards, the so called "rule of law" and the rights of the citizenry have been curtailed.

Unfortunately, this has already come to pass here in the USA. Let's face it, in a rush to save ourselves from "the Terrorists" we have given up the sacred rule of law that was the REAL backbone of our Republic, IE the Constitution, the Bill of Rights and all of the good laws that had their basis in them.

Much smarter and less selfish people than we, were responsible for writing the Constitution and we should respect the fruit of their labor, to the point of repealing any and all laws that broach the security given to the citizens of the US by the Constitution and Bill of Rights.

Wherever nationwide gun registration has occurred, the government has come to take their guns away and immediately afterwards, the so called "rule of law" and the rights of the citizenry have been curtailed.

I am not sure I understand this correctly, but do you imply that countries that has strickt gun controll are less democratic? If so then I totaly disagree and I can objectively state that this is incorrect.

I would say that all Northern-European countries that I'm slightly familiar with has much stricter gun controll than the U.S. none off them are less democratic than the U.S. For instance has Sweeden, Denmark, Norway and Britain very strict gun registration. I have never registered an incident where authorties in these countris come to take their guns away.

According to the http://en.wikipedia.org/wiki/Democracy_Index all of these countries have as good or better Democracy rating than the states.

Birger,

Northern-European countries don't have a tradition of gun ownership other than by the elite (think fox hunting, etc.). They also don't have the equivalent of the U.S.'s Second Amendment.

I'm not saying either system is better but I do have to say that the government having the exclusive right to own and control guns can be a sign of a totalitarian state. In the U.S., gun ownership has been so ubiquitous that there is legitimate genuine concern by law-abiding citizens that giving up their guns would leave them defenseless. The police would be unable to protect the populace from criminals, who obviously would still be able to get guns, considering the huge supply in circulation.

It is also an American trait to not trust government for good reasons, both historically and in modern times. Even today, we are constantly bombarded with reasons not to trust our government ranging from spying on its own people to the subject of this discussion. Calls by said government on stricter gun control are perceived by many as having ulterior motives. Perhaps Northern Europe governments play by different sets of rules but here in the U.S., we have a well-founded tradition of distrust.

By the way, not all of Northern Europe agrees with you. Switzerland has an estimated gun ownership of 1.2 to 3 million guns. In fact, guns are issued to members of the militia (most citizens over 20), who may take them home.

Worldwide, Serbia, Yemen, Switzerland, Finland, Cyprus, Saudi Arabia, Iraq, Uruguay, Sweden, Norway, France, Canada, Austria, Germany and Iceland and, of course, the U.S. all have ownership of more than 30 guns per 100 residents.

Birger, at the risk of veering way offtopic, most Europeans lost their real gun rights a long time ago and most don't even know what they lost. Some during or after WWII, some more recently. However, the other rights of the people have been curtailed much more severely with government legislating too many aspects of life, from what you do to what you can say or own. Nanny state politics curtail the rights of the citizenry. IMHO, Excessively protecting people from themselves removes their ability to decide for themselves what is good or bad or right or wrong and removes any motivation for personal improvement. This breeds generations unable to fend for themselves and physical dependency upon the government just like an addiction.

Once that is lost, there is no "Democracy", only Bureaucracy. The next step is the demonization of individualism and exceptionalism and the promotion of mediocrity and groupthink, by both the government and the education system which has been fairly common in Europe and becoming more so here.

Bureaucrats and Dictators greatest fear is an armed citizenry of self sufficient individuals that do not "need" the government.

Our government here is only beginning to legislate our behaviour and I am dead set against any legislative attempts to weaken the Second and Fourth Amendment, or any other amendments or to otherwise curtail the rights of the US citizenry to live their own lives and have their own beliefs. If they want to change the Constitution, they will have to call a Constitutional Convention and not legislate around it.

BTW, the first thing the Nazi's, Russians, Chinese, (or any other totalitarian regimes) did after they took power in any country they occupied, was to take away their guns and/or their right to own and keep personal firearms. Excessive surveillance is never very far behind and continues into today. The more totalitarian the government, the less rights the citizens have.

The Brit's banned most guns long ago and don't do much to accomodate personal gun ownership and barely tolerate guns for hunting. Funny that British literature spawned so many anti-totalitarian themed novels, stories, movies etc. Even the velvet rope still binds...

"Law enforcement's warrantless and constant covert video surveillance of Defendant's rural front yard is contrary to the public's reasonable expectation of privacy and violates Defendant's Fourth Amendment right to be free from unreasonable search. The video evidence and fruit of the video evidence are suppressed."

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