Warrants

Court OKs Undercover Warrantless Home Video Surveillance

Be careful who you let into your house

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Can law enforcement enter your house and use a secret video camera to record the intimate details inside? On Tuesday, the Ninth Circuit Court of Appeals unfortunately answered that question with "yes."

U.S. Fish and Wildlife agents suspected Ricky Wahchumwah of selling bald and gold eagle feathers and pelts in violation of federal law. Equipped with a small hidden video camera on his clothes, a Wildlife agent went to Wahchumwah's house and feigned interest in buying feathers and pelts. Unsurprisingly, the agent did not have a search warrant. Wahchumwah moved to suppress the video as an unreasonable search under the Fourth Amendment, but the trial court denied his motion. On appeal before the Ninth Circuit, we filed an amicus brief in support of Wahchumwah. We highlighted the Supreme Court's January 2012 decision in United States v. Jones — which held that law enforcement's installation of a GPS device onto a car was a "search" under the Fourth Amendment—and specifically focused on the concurring opinions of Justices Alito and Sotomayor, who were worried about the power of technology to eradicate privacy.

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  1. It sounds like for the purposes of the interaction that was recorded, his home was a place of business. Don’t know if that changes the legal situation, but he did invite the undercover agent in to transact business.

    How does it work if you are wearing a wire while on an undercover drug buy? Do you have to get a warrant to be invited in with your video/audio rig on? What about a back-room poker game? Can you just buy your way in, or do you have to get a warrant before doing so?

  2. No, this and other decisions say it is not a search requiring a warrant as long as the officer is invited in, even if the officer is pretending to be something else.

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