On Bears With Video Cameras and Fourth Amendment Law

Ilya recently flagged the civil suit recently filed in federal court in which the complaint alleged that Connecticut officials violated a couple's Fourth Amendment rights by releasing camera-carrying bears in the area that came within 200 yards of their home.

Commentators are having lots of fun with the case, and that's great.  And to the extent some readers have strong views of putting video cameras on wild bears as a matter of policy, I am glad this case gives them an opportunity to voice those concerns.  But if some are wondering if the suit has legal merit, I don't think it does. Among the problems:

1. The bears did not enter a space that the Fourth Amendment protects.  The Fourth Amendment is not a roving protector of all property interests.  It's pretty specific about the kinds of property it protects: "persons, houses, papers, and effects."  A bear 200 yards from a home has not searched a person, house, paper, or effect, so it hasn't triggered the Fourth Amendment.  It's true that the Supreme Court has adopted a rule that some space immediately outside of a physical home can count as a "house" — the so-called "curtilage" doctrine, which extends the home to area around the home that is used like parts of the home, such as a front porch — but I am not aware of caselaw that says the curtilage can extent 200 yards from a home. The cases just don't extend the house concept that broadly to cover so much land in the area around the home, whether under the so-called "reasonable expectation of privacy" theory or the so-called "property" theory of searches. (Some commentators suggest that the curtilage doctrine wrongly takes away Fourth Amendment rights by artificially limiting the Fourth Amendment to the space around the home, but I think that is textually backwards; it's the text of the Fourth Amendment that limits protection, and the curtilage doctrine that extends the home beyond the four walls of the building.)
2. There's reason to doubt the bears are covered by the Fourth Amendment.  Does putting a camera around a bear's neck make the bear a state actor, like a person?  This isn't necessarily a new question.  There's lots of lower-court caselaw on drug-detection dogs that are brought to a car and then jump into the car and sniff for drugs, alerting to drugs inside. Most (but not all) of that caselaw holds that, if the dog jumped into the car unprompted by a human officer, then it's not action attributable to the government. If that caselaw applies here, then it seems dubious that the bears are covered by the Fourth Amendment at all.
3. The plaintiffs are seeking a remedy that is not available to them, at least based on the complaint.  The plaintiffs are seeking an injunction ordering the state officials to turn off all cameras on bears within 10 miles of their property, for all video taken from the cameras to be destroyed, and to stop bears from having cameras (or at least from coming on to their property). But under City of Los Angeles v. Lyons (1983), injunctive relief is not available in federal court against state officials unless the plaintiff can show "a sufficient likelihood that he will again be wronged in a similar way." Here, I take it that would require some showing that the state's tagged bears are going to come up to their home with the video cameras on again (assuming the cameras were on before). If there is specific reason to think that, it is not in the complaint.

There are other arguments the state could make, such as that the bear-tagging program, if it's a search, is part of a reasonable non-law-enforcement program under the "special needs" exception. Certainly plausible, but it would help to have more facts about the program to say more.

Anyway, I realize that discussing current law draws the ire of some readers, who prefer we discuss what the law of camera-carrying wild bears should become, not merely what the rulings of small-minded courts would suggest it now is. But I figured I would at least offer the latter.

Comments

[Unicorn Abattoir]

"The bears did not enter a space that the Fourth Amendment protects."

Like the trunk of a car?

[mse326]

I am OOTL. What are these comments regarding a car trunk in reference to?

[Noscitur a sociis]

I believe Unicorn Abattoir's point is that looking into the trunk of a car can implicate the Fourth Amendment, even though the trunk is (usually) not someone's home, and that accordingly entering into someone's property can too. But as Prof. Kerr notes, this isn't an open question that needs to be resolved by analogical reasoning: the Supreme Court has directly and unambiguously resolved the matter.

[Gandydancer]

No, the point is that Kerr’s argument that the trespass in this case isn’t covered by the “persons, houses, papers, and effects” verbiage is undermined by the fact that they somehow including the trunk of a car was equally unexpected. SCOTUS can decide that the bear’s employment as a search tool violates the 4A without increasing the arbitrariness of its decisions to any notable degree.

[Intelligent Mr Toad]

Why only the Fourth Amendment? Doesn't the Second Amendment say something about arming bears?

[Jerryskids]

Didn't SCOTUS limit that to Kodak and Polaroid bears?

[Dr. Ed 2]

The search of a motor vehicle is different from the search of private property.

[Noscitur a sociis]

A motor vehicle isn’t private property?

[Michael P]

Presumably he meant real property.

[Gandydancer]

The point is that Adler’s recitation of “current law” is incomplete bullshit. How is the trunk of a car “persons, houses, papers, [or] effects”?
Some of us are unconvined that “the law” is what a temporary majority of SCOTUS has most recently pulled from its collectives ass.

Then there's the moronic idea that no injunction can be issued unless the owners can prove the government will direct bears at them again. As if Kerr has never heard of "capable of repetition". A real knob-licker we have here.

E.g., the sniffer dogs wouldn’t jump into cars if they were trained not to. The government is responsible for the predictable results of using its tools. And the bears will not remain outside of the curtilage of a house if they think there might be food accessible inside of it.

[Sarcastr0]

Some of us are unconvined that “the law” is what a temporary majority of SCOTUS has most recently pulled from its collectives ass.

Good luck following the law in your heart, versus the one actually being enforced!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

So all lawyers should go home and stop arguing cases.

[Sarcastr0]

Lawyers should argue based on what the law is - including precedent.

Even if they want to change the law, they need to understand where they are as well as where they want to go.

Bullheaded 'the law is what I think it is' will make you a bad lawyer, and probably get you put in jail in the citizen.

[Gandydancer]

Pretending that what a temporary majority of SCOTUS has most recently pulled from its collectives ass is and must remain "the law" is a clownish pretense that you only engage in when you don't want the law changed. But Dobbs, Bruen, etc., still happened for all that.

[Orin S. Kerr]

I wondered if my poking fun at the silliness I expected to come in the comment thread ("draws the ire," etc.) was too pessimistic. But clearly not.

[Sarcastr0]

Eh, one dude.

Mostly people are taking this tale in stride.

[Orin S. Kerr]

Fair. 🙂

[Brett Bellmore]

Well, "effects" probably meant personal property in general, and you own your car, don't you?

[Voize]

Byrd v. United States 138 S.Ct. 1518 (2018)
Lawful possession of a vehicle entitles the possessor to 4th Amendment protection.
Borrow a car -> protected.
Steal a car -> not protected.

[Gandydancer]

As a response to the false claim that "effects" meant "personal property in general" in 1789 a 2018 case is not really on point.

[Gandydancer]

Adler Kerr

They are peas in a pod, as far as I've noticed.

[PeteRR]

So the property owner who can place a 10 foot high wall around their land is afforded more 4th amendment protections than those who can't.

[Noscitur a sociis]

Yes?

[PeteRR]

Shouldn't the law be everybody has that (virtual) 10 foot wall around their property?

[Michael P]

I think the better argument is that somebody who has hundreds of yards of forest and hills around their home has the legal equivalent of a fence, although I suspect that only applies to directed surveillance. Wildlife wanders, even if it has a camera on a collar.

[Brett Bellmore]

Items 6 and 7 establish that the defendant knew their actions would result in photos inside the complainant's property; They'd used a bear known to frequent that property, and released it near said property.

So it's hardly like where the bear went couldn't have been foreseen.

[Michael P]

Alleging something in a complaint does not make it legally relevant. What does "vicinity" mean in point 7? Is it significant whether a public road runs right in front of the house, as Google Maps suggests one does? As OK points out, even if the property includes 200 yards in each direction, the curtilage probably does not extend so far. Typical cameras do not have the kind of magnification or angular resolution that would reveal much about a house's small details -- much less its interior -- from 200 yards away, so what actual infringement is being alleged?

[Brett Bellmore]

You said, "wildlife wanders", like that was relevant to the situation. Wildlife doesn't wander randomly. They might not have been steering the bear, but they damned well knew where it was going to go, if the complaint is true.

So, who cares if "wildlife wanders"?

[Michael P]

The complaint more hand-waves that the wandering was foreseeable, as if that is relevant. I’m pretty sure there is no 4A doctrine of stochastic searches.

[Gandydancer]

Nonsense. The government is responsible for the predictablee results of using the tools it uses. In this case that the bear will go looking for food and take pictures from inside the curtilage. Mounting the camera on a random-walking cross-country Zoomba wouldn’t make the resultant search legal either.

[Michael P]

So your position is that a stochastic search doctrine should totally be a thing, because otherwise bullshit and nonsense.

[Gandydancer]

It’s hard for you not to be a complete moron, especially when motivated to be one, but what I said quite clearly was that “[t]he government is responsible for the predictable results of using the tools it uses.” No special “stochastic search doctrine” is needed.

[Life of Brian]

I’m pretty sure there is no 4A doctrine of stochastic searches.

As others have mentioned, hungry animals released in the vicinity of a centralized stash of food do not ignore their senses and just wander around like oversized Brownian particles.

[Sorcer23]

What about the right to privacy? In a city or town, there is little expected privacy on one's land, unless there are acres and acres of it. In the country, and especially in or around a forest, one that is natural enough to allow for bears to wander, should indicate that the residence was sought to a degree, due to its privacy, and hence the expectations of such should be respected.

[Gandydancer]

Kerr is here pretending that the whole "reasonable expectation of privacy" doctrine doesn't exist and that only the words "persons, houses, papers, and effects" matter because.... reasons. This fell apart with the very first response, which reduced Kerr immediately to being unable to make an argument more compelling than asserting that criticism of his tendentiousness was "silliness".

[Noscitur a sociis]

Why?

The Fourth Amendment protects persons, houses, papers, and effects, not property. Someone who ones multiple big houses will have much more space that is protected than someone who owns one small house, and they’ll both have more protection than someone who is sleeping in their car.

[Brett Bellmore]

What are "effects", if not property?

[Noscitur a sociis]

I can certainly tell you what they're not: real property.

[Rev. Arthur L. Kirkland]

So the property owner who can place a 10 foot high wall around their land is afforded more 4th amendment protections than those who can’t.

More, but not nearly as much an anti-government cranks would prefer.

For example, if a "sportsman" were unlawfully killing birds of a particular feather, and the government responded by placing cameras at the bellies of those birds, and recordings from those cameras (transmitted from the bellycams as shot birds plummeted toward the killer's 10-foot-walled property) identified the killer's location, would the government be entitled to use those recordings to convict the killer, and would the "sportsman" and his fans object to use of that evidence?

[MWAocdoc]

At the very least the plaintiffs would have to show that the video from the camera bears was used by law enforcement as an unwarranted search. I can imagine a situation where video obtained by LEOs was used as probable cause to get a search warrant for, say, illegal drugs. I think that's called "tainted fruit" or something like that. Otherwise a "Ring" doorbell camera aimed in the general direction of your neighbor's house would be unconstitutional or whatever.

[Michael P]

A camera set up for private use by a private actor cannot violate the Fourth Amendment, even if they later give that footage to the government. This follows from the long established "private search" doctrine, and is distinguished from the less settled cases of cameras mounted on utility poles by government agents to surveil a house from across a property line. (Different circuits have ruled different ways on that, but it's not clear whether there is a split or just different facts, such as whether the cameras looked over a security fence.)

[Gandydancer]

Whether a search is legal doesn’t depend on whether the evidence it produces is used in court. The Constitutional violation occurs when the search is conducted.

The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

[Jarndyce]

I do not address the 4th Amendment, but rather what seems to me common sense. Of course the bears are state actors—the state was employing them to its end. If the bears weren’t state actors, then the cameras were the instruments of the human state employees who attached them to the bears.

[Dr. Ed 2]

Good point about human actors.

What if there were a fast-moving stream going through the property and they put a camera on a log upstream and sent it floating into the property?

[Gandydancer]

Is the "stream" navigable waters? Then it's like a helicopter flying over.

[jimc5499]

You have that right. There is a large stream in our area. The State stocks it with trout. The stream flows through a person's property. He owns land on both sides of the stream. He has these posted "No Trespassing" and "No Fishing". He's had several people charged for fishing from his property. Last year two people were fishing in a small boat in the section of the stream running through his property. He tried to have them charged with trespassing and the Judge cited the stream as "navigable waters" and threw out the charges. This year there's two or three boats there almost every day.

[Brett Bellmore]

In most places, even on private property, you can walk down the stream bed. Along the coast, everything from the high tide line down is publicly accessible.

My old place had a river running through the back. I routinely had people walking along it to the back of my property, and hunting my land without permission. Wasn't much I could do about it except putting up that shot up sign stating that it was downrange from my rifle range.

[VinniUSMC]

There's reason to doubt the bears are covered by the Fourth Amendment. Does putting a camera around a bear's neck make the bear a state actor, like a person? This isn't necessarily a new question. There's lots of lower-court caselaw on drug-detection dogs that are brought to a car and then jump into the car and sniff for drugs, alerting to drugs inside. Most (but not all) of that caselaw holds that, if the dog jumped into the car unprompted by a human officer, then it's not action attributable to the government. If that caselaw applies here, then it seems dubious that the bears are covered by the Fourth Amendment at all.

When bears evolve cameras, then Orin might have a point.

[Mr. Bumble]

What was the legitimate state interest in placing a camera on a bear?

[Michael P]

Probably similar to putting cameras on polar bears: It gives insight into the behavior and diet of bears, along with threats to and challenges for them. It also helps inform the state how to effectively manage human-wildlife interactions to balance the various factors that affect public interests. https://www.nytimes.com/2018/02/01/climate/polar-bear-cameras.html

[Mr. Bumble]

Wonder just how many camera bears there are in CT. Is it a common practice?

[Gandydancer]

Just given the identity of the defendant it doesn’t seem to have been a cop camera, though the possibility of pretext is still in play.

[Rev. Arthur L. Kirkland]

What was the legitimate state interest in placing a camera on a bear?

Determination of which criminal was feeding bears, for starters.

[Gandydancer]

The point is that Adler's recitation of "current law" is incomplete bullshit. How is the trunk of a car "persons, houses, papers, [or] effects"?

Some of us are unconvined that "the law" is what a temporary majority of SCOTUS has most recently pulled from its collectives ass.

E.g., the sniffer dogs wouldn't jump into cars if they were trained not to. The government is responsible for the predictable results of using its tools. And the bears will not remain outside of the curtilage of a house if they think there might be food accessible inside of it.

[Gandydancer]

Then there’s the moronic idea that no injunction can be issued unless the owners can prove the government will direct bears at them again. As if Kerr has never heard of “capable of repetition”. A real knob-licker we have here.

nb - lost connectivity to route while posting this.

[Brett Bellmore]

The car, being your property, is one of your 'effects'; It was a catchall for personal property.

[Gandydancer]

Not buying that. It's a location, not an "effect".

[Michael P]

The plural is a term of art. https://www.law.cornell.edu/wex/personal_effects -- 4A "effects" certainly include personal effects, but case law has not really developed how much farther the constitutional protection extends.

[Gandydancer]

From your link: “The term “personal effects” refers to a person’s personal property, usually items of particular significance that are carried or worn. According to the Revised Code of Washington, personal effects normally include jewelry, clothing, toiletries, or other such items.”

It also links to 16 CFR § 444.1, which includes: “(i) Household goods. Clothing, furniture, appliances, one radio and one television, linens, china, crockery, kitchenware, and personal effects (including wedding rings) of the consumer and his or her dependents…”

This corresponds with my understanding, and doesn’t include vehicles, IMHO.

The singular, “personal effect”, seems unproblematic.

Why vehicles are covered by the 4A remains unexplained.

This might be relevant, but the editing window will close on this comment before I review it:
https://www.yalelawjournal.org/article/the-lost-effects-of-the-fourth-amendment

[Gandydancer]

Still reading, but ran across: “In one recent case, United States v. Jones, officers acting without a warrant installed a GPS device on a suspect’s vehicle and tracked it for four weeks.24 The Supreme Court declared it “beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment”25 and held that a “trespass on ‘houses’ or ‘effects’ . . . to obtain information” is a search.26”

So maybe there's a persuasive argument therein. Or not.

[Gandydancer]

Adler Kerr

They are peas in a pod, as far as I’ve notice

[Krayt]

Why not get a bum from The Streets of San Francisco, attach a camera to his neck, and set him in the woods?

If a computer repair man sees something illegal and reports it, that's fine. But not if he's in cahoots with the government to do search-and-reports. I don't see how this is any different. Attaching the camera makes the bear be in cahoots. And since the bear can't be in cahoots, it's all state action. This does not strip it of such, but confirms it.

[Dino Sore]

One significant fact is being ignored. Did the state have a reasonable expectation that the bear might actually enter the home? There were 67 instances last year of black bears entering homes in Connecticut.

[Gandydancer]

It DID come within 200 yards, according to the complaint.

And see McAlpine v Secretary of State (1995)
I understand that the curtilage in that case was deemed to be circa 12 acres.

Can't check now, gotta run.

[Michael P]

Can you provide a more specific identification for the case you are citing? The only one I can find by that name and year is from the UK, so it doesn't speak to the Fourth Amendment.

[Mr. Bumble]

UNITED STATES v. DUNN, 480 U.S. 294 (1987)
This seems to set the parameters for claims of curtilage.

[Gandydancer]

for convenience: https://en.wikipedia.org/wiki/United_States_v._Dunn

[Gandydancer]

Right you are. I didn’t get beyond the search engine page excerpt before I had to run, and the England and Wales bit wasn’t obvious. Unless I'd looked at the url. https://swarb.co.uk/mcalpine-v-secretary-of-state-for-the-environment-and-another-qbd-6-dec-1994/`

[OtisAH]

Iirc, this is all tied to an investigation re: the owner feeding bears, which is a really dumb thing to do long term. And while there are bears in the area and some of them will surely cross the property regardless, a way to minimize the number of surveillance bears coming to the property is to stop feeding them. Of course that opens up new self-created problems.

[Brett Bellmore]

I'm not going to assume that, just because the local government accuses him of feeding bears, that he's actually doing so, or deliberately. Maybe he just doesn't lock up his garbage well enough, or he's feeding the deer, and the bears come by to eat, too.

[Michael P]

He owned an apparently now-defunct business where people pay to watch wildlife from the property in question, and you think he's just not locking up his trash securely?

https://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=19885425

[OtisAH]

As ridiculous as that scenario is, if that is somehow indeed the case, then he’s an even bigger idiot than if he was feeding them intentionally.

[Mr. Bumble]

Well there is no shortage of idiots when it comes to dealing with wildlife, wild being the operative word.
Look at the morons try to feed or pet a bison out west.

[Gandydancer]

“12. On or about September 23,2020, a hearing concerning the Cease and Desist was held before a Hearing Officer for the Town. 13. During course of the hearing, Mark Brault testified under oath that that neither he nor anyone affiliated with Nature Havens was feeding bears on the Property and expressly confirmed under oath that he would not do so in the future. 14. At the conclusion of the hearing, the Hearing Officer announced his decision that the Ordinance had been violated…. [which, it seems, was correct — but on what evidence?] 15. … in direct contravention of his sworn testimony … on or about October 12,2020, Mark Brault was recorded on a Connecticut Department of Environmental Protection camera feeding two bear cubs on the Property.”

So it seems this was a search, not just a chance observation via a camera placed on the bear to track the activity of the bear, which I might feel more tolerant about. It seems it’s not within the areas protected by the 4A, but it’s still a trespass by law enforcement authorities based on mere suspicion, IMHO. Like the sniffer dogs mentioned in the post I’m not buying the idea that the authorities are not responsible for the predictable results of using their tools and if they couldn’t get a warrant to trespass on the property (which maybe ought to exclude the house anyway, as presumably no one would suppose that the bears were being fed in the house) they ought not have sent a bear to do so.

[Gandydancer]

.