The Wisconsin gaming authorities had the power under state law to unrestricted access to kennel areas at a racing dog track. The plaintiff leased her kennel, had the ability to exclude others and could have a locked file cabinet in the area. Covert video survellance was set up to see if plaintiff was doping the dogs, and she was. The surveillance exceeded the state’s regulatory power. However, the court granted summary judgment for the defendants because their conduct, while unlawful, was objectively reasonable at the time. Diercks v. Wisconsin Dep’t of Admin., 2006 U.S. Dist. LEXIS 92196 (E.D. Wis. December 20, 2006). As to the merits of the surveillance:
2. Necessity of Warrantless Video Surveillance
A warrantless inspection in a pervasively regulated industry must also be necessary to further the regulatory scheme. See Lesser, 34 F.3d at 1306 (citing Burger, 482 U.S. at 702). A random, unannounced inspection like those in Dewey and Burger would likely pass constitutional muster. However, this case is unique because the warrantless search continued uninterrupted for two months via video surveillance. Covert video surveillance, while not a Fourth Amendment violation per se, is subject to strict constitutional requirements. A warrant for video surveillance satisfies the Fourth Amendment only if normal investigative techniques were tried and either failed, appeared unlikely to succeed, or appeared to be too dangerous. See Torres, 751 F.2d at 883-84; see also United States v. Falls, 34 F.3d 674, 680, 682 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d 536, 542 (9th Cir. 1992); United States v. Mesa-Rincon, 911 F.2d 1433, 1438 n.5 (10th Cir. 1990).
Defendants argue that covert video surveillance was necessary because of the difficulty of detecting Boldenone in a greyhound’s system. That at least arguably rules out urine testing as a means to detect the suspected illegal behavior, but it is unclear why a random, unannounced physical search would have been presumptively ineffective. Defendants did not attempt to obtain a warrant for their video surveillance, and they did not even attempt a random, unannounced in-person search of Diercks’ kennel. Defendants have not argued, much less established, that a random, unannounced in-person search of Diercks’ kennel would have been unlikely to succeed if tried. Defendants make a vague reference to the element of surprise, but random and unannounced physical inspections are routine and expressly authorized by the statutory and regulatory scheme. The element of surprise could have been effectively maintained using less invasive procedures. Therefore, Defendants have failed to establish the necessity of covert video surveillance.
3. Adequate Substitute for a Warrant
Finally, a warrantless search of a pervasively regulated industry must provide an adequate substitute for a warrant. This is accomplished, in part, by limiting the discretion of the inspecting officers. See Lesser, 34 F.3d at 1306 (citing Burger, 482 U.S. at 702). In the context of covert video surveillance, the discretion of the officers must be limited to the type of communication sought to be intercepted and the particular offense to which it relates. See Torres, 751 F.2d at 883; Falls, 34 F.3d at 680; Koyomejiam, 970 F.2d at 542; Mesa-Rincon, 911 F.2d at 1438 n.5.
Defendants have provided no indication that the scope of the surveillance was limited in any manner. It is “unarguable that television surveillance is exceedingly intrusive . . . and inherently indiscriminate, and that it could be grossly abused to eliminate personal privacy as understood in modern Western nations.” Torres, 751 F.2d at 882; United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (“This type of surveillance provokes an immediate negative visceral reaction; indiscriminate video surveillance raises the spectre of the Orwellian state”). Hidden video surveillance “may be considered far more invasive than conventional investigative techniques — for the camera sees all, and forgets nothing.” Constitutionality of Secret Video Surveillance, 91 A.L.R. 5th 585, § 2 (2001). By all accounts, Defendants’ uninterrupted video surveillance was unlimited in scope and afforded the inspecting officers nearly unbridled discretion. Therefore, the manner of the Defendants’ surveillance failed to provide an adequate substitute for a warrant.
As to qualified immunity:
The Court’s concern, with respect to the constitutionality of the searches, is with the necessity and scope of the video surveillance. However, the “unrestricted access” “at all times” language in the lease agreement, mandated by Wisconsin statute and administrative code, supports the conclusion that Diercks waived any expectation of privacy in her kennel. While the Court finds, as a matter of law, that this language does not constitute a waiver of Diercks’ right to be free from covert video surveillance in her kennel unit, it was objectively reasonable for the Defendants to conclude that Diercks’ rights were waived based on the broad language in the lease agreement.
Bankrupt doctor had a reduced expectation of privacy in his records in a storage building. They were the property of the bankruptcy trustee. The FBI had served a subpoena duces tecum on the doctor, but he explained that the records were under the control of the trustee. A truck that had been used to transport the documents was padlocked by the FBI and seized later. United States v. Andujar, 2006 U.S. App. LEXIS 31427 (3d Cir. December 20, 2006) (unpublished):
Andujar did not carry his burden to show a reasonable expectation of privacy in the storage unit the government entered to seize documents related to Medi-One Stop. Andujar informed the FBI that the storage unit contained documents that were the subject of a lawful subpoena related to the investigation into his bankrupt medical practices. As a bankruptcy debtor, he had a reduced expectation of privacy in such documents. See In re Barman, 252 B.R. 403, 414 (E.D. Mich. 2000) (noting “debtors who have filed for bankruptcy relief must have a significantly reduced expectation of privacy in their ‘houses, papers, and effects’ that society is prepared to recognize as reasonable”).
Vehicle search incident for reckless driving and operating on a suspended license was valid. Officer did not need independent justification to believe the passenger was involved to order him out of the vehicle. Thornton was intended to create a bright line rule that was easy to follow. United States v. Tillman, 2006 U.S. Dist. LEXIS 92056 (E.D. Ky. December 20, 2006).*
An officer who made three attempts to determine the validity of a felony arrest warrant and was never told that the plaintiff had already surrendered on the charge and was instead told that the warrant remained valid had qualified immunity from suit. Also, when informed that the plaintiff had already posted bond, the officer quit looking for him. [Plaintiff also sued over the fact that she had entered various places, with consent, to look for him, to which he had no expectation of privacy, and he was never actually “seized.”] Daniel v. Wilson, 2006 U.S. Dist. LEXIS 92134 (W.D. Ky. December 19, 2006).
