Putting video camera over bathroom stalls of the Iowa Civil Commitment Unit for Sex Offenders violated the inmates' reasonable expectation of privacy. The recordings were not monitored in real time. Arnzen v. Palmer, 713 F.3d 369 (8th Cir. 2013):
A search occurs under the Fourth Amendment when, as relevant here, "the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 31-33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001); see also United States v. Jones, 132 S. Ct. 945, 950, 181 L. Ed. 2d 911 (2012). "[I]nvoluntarily civilly committed persons retain the Fourth Amendment right to be free from unreasonable searches that is analogous to the right retained by pretrial detainees." Beaulieu v. Ludeman, 690 F.3d 1017, 1028 (8th Cir. 2012). Although the expectation of privacy shared by involuntarily civilly committed persons and pretrial detainees is of a "diminished scope," see Bell v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), neither our court nor the Supreme Court has ever outlined exactly what expectation of privacy these persons reasonably have, outside of our holding that detainees do not have a reasonable expectation of privacy in their jail cells, see United States v. Hogan, 539 F.3d 916, 923 (8th Cir. 2008). We believe, though, that single-person bathrooms (intended for functions "'traditionally shielded by great privacy'") are inherently different from cells, and that a civilly committed person has a reasonable expectation of privacy in a single-person bathroom when there is no immediate indication that it is being used for purposes other than those ordinarily associated with bathroom facilities. ... We therefore believe that by capturing images of patients while they occupy single-user bathrooms, CCUSO violated its patients' reasonable expectation of privacy, thus conducting a search under the Fourth Amendment, irrespective of whether there is some chance that those images will not be viewed, see Kyllo, 533 U.S. at 31-33.
After we determine that the government's action is indeed a search, as we did here, we apply a so-called "balancing test" to determine whether the search or seizure of involuntarily committed individuals is reasonable, considering the "'scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.'" See Serna v. Goodno, 567 F.3d 944, 949 (8th Cir. 2009), cert. denied, 558 U.S. 972, 130 S. Ct. 465, 175 L. Ed. 2d 312 (2009) (quoting Bell, 441 U.S. at 559). We "must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of institutional security." Beaulieu, 690 F.3d at 1029 (internal quotation marks and citation omitted).
The administrators point to our precedents allowing strip searches of civilly committed individuals for the purpose of finding contraband, see id. at 1027-30; Serna, 567 F.3d 947-48, 952-56, and argue that their placement of the video cameras in the current circumstances is as necessary and justified as the strip searches in those cases. But the justification for those searches is quite different from the one offered for the video cameras here. In the cases the administrators rely on, the searches were meant to prevent dangerous contraband from entering the facilities, an immediate risk that was most easily prevented by strip searches. And we cautioned in Serna that if "the triggering evidence had been a prohibited but relatively benign object, ... it would have seemed, on balance, less reasonable to move quickly towards a method of searching that is so highly and personally invasive," id. at 951. Here, however, neither the "triggering evidence" nor the means to prevent its harms are analogous to those in the earlier cases. Although unmonitored cameras may sometimes deter illicit behavior and help with investigations, they do not provide the administrators with immediate alerts concerning patient safety or directly prevent assaults or dangerous acts. They are instead an after-the-fact investigative tool: By the time the video is viewed, the harm has already happened.
No Pingbacks for this post yet...
Fourth Amendment cases,
citations, and links
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts Opinions
FDsys: Many district courts
FDsys: Many federal courts
Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts (and some USDC opinions)
Advanced Google Scholar
Google search tips
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $
Most recent SCOTUS
2009 to date:
Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)
Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)
Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)
Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)
Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)
S. Ct. Docket
Solicitor General's site
Briefs online (but no amicus briefs)
Curiae (Yale Law)
Oyez Project (NWU)
"On the Docket"–Medill
S.Ct. Monitor: Law.com
S.Ct. Com't'ry: Law.com
General (many free):
Google Scholar | Google
LexisOne Legal Website Directory
Lexis.com (criminal law/ 4th Amd) $
Findlaw.com (4th Amd)
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Congressional Research Service:
Electronic Communications Privacy Act (2012)
Overview of the Electronic Communications Privacy Act (2012)
Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Electronic Privacy Information Center
Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog
"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)