Judge Throws Out Evidence Obtained By Six Weeks Of Warrantless Surveillance Footage

from the Warrants:-the-ultimate-in-unobtanium dept

Mon, Dec 15th 2014 2:47pm — Tim Cushing

Despite arguments otherwise, most of them broached by government lawyers, what can be viewed by the public may also contain a reasonable expectation of privacy.

A federal judge has just thrown out evidence obtained by law enforcement without a warrant. The case, which dates back to last year, involves Washington police and Leonel Vargas, an immigrant who law enforcement suspected of drug trafficking. Without a warrant, police installed a video camera on a nearby utility pole and aimed it at Vargas' front yard. After over a month of recording, the police got lucky: Vargas, an undocumented immigrant, decided to perform target practice in the front yard of his rural Washington home. This gave officers the probable cause they needed (illegal weapons possession) to search Vargas' house. The resulting search uncovered drugs and guns, leading to his arrest and indictment.

Vargas objected to this violation of his privacy. The government argued that Vargas' publicly-viewable front yard and door couldn't be considered private. This argument waged back and forth for several months, with the EFF entering an amicus brief on behalf of the defendant at the invitation of the court late last year.

The EFF has some good news to report, and it's all contained in a minute order by Judge Shea.

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.

As the EFF points out, even public areas have privacy implications. While no one reasonably expects the front of their house to be a private area in the strictest sense, they do reasonably expect that no one will place it under uninterrupted observation for extended periods of time… at least not without a warrant.

The hitch, of course, is that the privacy violation is tied to the length of time and the type of the surveillance. There's no specific point at which privacy protections kick back in (so to speak), so decisions like this are being made on a case-by-case basis. Given the courts' general slack-cutting when it comes to law enforcement and intelligence agencies, this is probably the best we can expect for the time being.

Considering how much time elapsed between the installation of the camera and the capture of incriminating footage, it's hard to see why local law enforcement didn't pursue other investigative methods or obtain a warrant. Now, because it opted for warrantless, long-term surveillance, its most incriminating evidence can't be used against the suspected drug trafficker. Law enforcement agencies often claim that the securing of warrants takes too much time and allows criminals to escape arrest, but in far too many cases, the actual facts contradict these arguments.

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Filed Under: leonel vargas, surveillance, video, warrant, washington

29 Comments

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Anonymous Coward, 15 Dec 2014 @ 2:50pm

Well they always have lying as an alternative to evidence. Seems just as good.
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Dick Cheney, 15 Dec 2014 @ 2:58pm

They should have just tortured him until he admitted to being a drug dealer.
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Anonymous Coward, 15 Dec 2014 @ 3:00pm

Re:
I can tell you're an impostor. The real Dick Cheney would call it "Enhanced Interrogation"
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That One Guy (profile), 15 Dec 2014 @ 3:01pm

What's good for the goose
The government argued that Vargas' publicly-viewable front yard and door couldn't be considered private.

If that really is the case, then it would be funny if someone were to set up a similar camera system pointed at the front doors of the police station and/or the parking lot. Both are 'publicly viewable', so there's no privacy concerns according to their argument, yet I imagine they would likely throw a huge fit if someone actually did that.
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Anonymous Coward, 15 Dec 2014 @ 3:01pm

Ninth Circuit
Appeals of decisions from United States District Court for the Eastern District of Washington are taken to the United States Court of Appeals for the Ninth Circuit.
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That One Guy (profile), 15 Dec 2014 @ 3:02pm

Re: Re:
The real Cheney also would have been laughing too much at the idea to type coherently.
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Anonymous Coward, 15 Dec 2014 @ 3:05pm

Re: Re:
He's also obligated to torture 100 innocents just to torture this guy.
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KRA, 15 Dec 2014 @ 3:31pm

Reasonable
The argument hinges on what a reasonable expectation is, and that is constant shifting toward expecting no privacy anywhere in our burgeoning surveillance state.
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NO you are the Bomb, 15 Dec 2014 @ 4:01pm

Lots of sound and fury
But signifying nothing, the US as well as most western governments have made it clear that tracking by the state will be what will happen, you don't get a choice or a say.

They are going to kill you and your children, I don't understand why no one will think of the children.
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That One Guy (profile), 15 Dec 2014 @ 4:15pm

Re: Lots of sound and fury
The power of denial. It's so much more comforting to cling to the idea that only 'bad people' ever need worry about mass surveillence, that only 'criminals' would ever be caught up or have their personal information collected, indexed, and added to a database somewhere.

And hey, there might have been some merit to those ideas... if those in charge didn't consider everyone potential criminals in need of spying on, 'just in case'.

Under 'Innocent until proven guilty', the only people who would be spied on would be those that, according to other evidence, were likely to be guilty of a specific crime, and even then the surveillance would be limited and targeted, scooping up what was needed and nothing else.

Under the current system, 'Guilty in general until specific charges can be found' however, everyone gets spied upon, because some of them might, at some point, do something illegal. This has the added bonus(to those doing the spying) of enabling you to bring charges against anyone at your discretion, as given enough time and data, everyone will break a law or two, often without even realizing it, or say something that could be used against them due to how it sounds.
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DOlz (profile), 15 Dec 2014 @ 4:25pm

Re: Re:
I believe the current euphemism is EIT.
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NO you are the Bomb, 15 Dec 2014 @ 4:33pm

Re: Re: Lots of sound and fury
The recent sneak attack in the states has made it clear, officially legalizes ex order 12333 AND make it legal to intercept ANY Cell phone communications and keep them forever, since ALL cell traffic is enciphered, by default, just so this is for the purpose of not getting your GSM crossed with someone else's is of no consequence technically it's correct and technical correctness is the best sort of correctness, face it the state has been taken over by power gamers.

#gamergate.gov For the win!
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Anon, 15 Dec 2014 @ 4:51pm

key is "rural"
I'm rural. IMHO if you can't take a leak (or do a little target practice) in your own front yard in the middle of the day without the neighbors complainin', you ain't rural.
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madasahatter (profile), 15 Dec 2014 @ 5:33pm

Semi privacy
Though the method and length of surveillance were not given more explicit guidelines, I think the judge's reasoning goes like this: If the police observed illegal activity while on patrol or otherwise in the area it would likely be admissible. But 24/7 surveillance for any length of time needs a warrant which is likely to take at most a few hours to obtain.
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Anonymous Coward, 15 Dec 2014 @ 6:23pm

Re: Semi privacy
I would agree: Horton Vs. California
Basically, the third point was it has to be immediately apparent, and from the actual ruling:
"Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges."
So my guess would be the use of surveillance cameras themselves should be limited to the scope of the investigation, or in fact need another warrant to use that footage against another crime.
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Anonymous Coward, 15 Dec 2014 @ 10:07pm

A judge who doesn't immediately side with police and consider them to be arbitrarily above the law? Color me impressed. Good to know there are still fair trials out there in the wasteland of the American legal system.
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Anonymous Coward, 15 Dec 2014 @ 11:45pm

Re: Re:
Didn't you know that Cheney's pacemaker is powered by the screams of the tortured?

/Poe
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Ninja (profile), 16 Dec 2014 @ 1:26am

Epic win for privacy and the EFF! Even though most of us would like to see criminals behind bars I'd rather see him go free than see constitutional and civil rights eroded.
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Anonymous Coward, 16 Dec 2014 @ 6:37am

Why is it so hard to get a warrant?
Why in 2014, is it so difficult to obtain a warrant?

It really, really, really, makes you wonder exactly what LAW ENFORCEMENT is trying to hide.
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Anonymous Coward, 16 Dec 2014 @ 7:18am

Here is the joke in this whole mess. "Vargas, an undocumented immigrant"

Right there in prime time, Vargas is an illegal alien. Why get a warrant because you suspect him of selling drugs? Kick his illegal ass out of the country.

Oh wait, we don't do that. Sorry.
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Just Another Anonymous Troll, 16 Dec 2014 @ 7:56am

Re:
It is our civic duty to protect the rights of all, even those we find undesirable.
If we do not, there may come a time when your rights need protecting, but no one will protect you because you are undesirable.
First they came for the terrorists, and I did not speak out—
Because I was not a terrorist.
Then they came for the pedophiles, and I did not speak out—
Because I was not a pedophile.
Then they came for the criminals, and I did not speak out—
Because I was not a criminals.
Then they came for me, and there was no one left to speak for me.
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Anonymous Coward, 16 Dec 2014 @ 7:58am

Why arrest an illegal alien that you suspect is breaking the law? Just deport them. They are here illegally, they are already breaking the law. Kick them out.
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John85851 (profile), 16 Dec 2014 @ 9:08am

Re: What's good for the goose
And when they complain, we can use the usual excuse:
If you've done nothing wrong, you have nothing to hide.
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Anonymous Coward, 16 Dec 2014 @ 10:06am

Re: What's good for the goose
...yet I imagine they would likely throw a huge fit if someone actually did that.

And they do, on a regular basis - http://photographyisnotacrime.com

Jeff Gray takes picture of publicly viewable government buildings and gets harassed citing "privacy concerns" and "national security."

So yes, they are exactly the hypocritical fucks that they appear to be.
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Rikuo (profile), 16 Dec 2014 @ 10:30am

Re:
Napping an illegal alien doesn't look as good as nabbing an illegal alien who also owns and fires guns illegally and possesses drugs.
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Rikuo (profile), 16 Dec 2014 @ 10:31am

Re: Re:
*Napping should be nabbing
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Casey, 16 Dec 2014 @ 10:47am

Re:
Because in this case (like many before it), they were looking not only for guns and drugs but for Vargas to talk about who he got them from. Looking for the supplier of said items. If they kicked Vargas out they would lose him as a point of reference.
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That One Guy (profile), 16 Dec 2014 @ 2:29pm

Re: Why is it so hard to get a warrant?
Two things:

1) A lot of their 'targets' are based upon little more than hunches, which don't satisfy the requirements for a warrant.

2) Warrants create paper-trails, documenting exactly what they are looking for and what evidence they had prior to that to justify a warrant. And if you don't know what you're looking for, because you don't have more than a hunch(see #1), then you can't describe just what you expect to find to a judge in order to get a proper warrant.
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Anonymous Coward, 16 Dec 2014 @ 2:59pm

"installed a video camera on a nearby utility pole and aimed it at Vargas' front yard"

So whats the punishment for accessing cameras, microphones, sensors, gps, cell data, broadband data, outside AND...... *inside* your house

Oh thats right, "what crime" /s
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