Long-term pole camera surveillance over the fence surrounding defendant’s junkyard violated his reasonable expectation of privacy where the average person couldn’t see over the fence merely walking by. The court differentiates the flyover cases because long-term video surveillance is unusual and not a normal occurrence. United States v. Castro-Valenzuela, 2018 U.S. Dist. LEXIS 99102 (D. Ariz. May 23, 2018) (R&R):
The Court must examine more closely whether Defendant Castro-Valenzuela had a reasonable expectation of privacy in what took place behind the wall of the junkyard when the gate was closed. Although the fence and gate were only 5’4″ tall, they were set back from the road. Therefore, a person walking along the public road or driving by could not see anything directly behind the wall or view all the activities in the junkyard.
The gate almost always was closed when no one was using it to enter or exit. Similarly, the gate to the private business next door was closed for most of the day. The signs on the gate and the trailer indicate that the junkyard was not a business open to the public. In light of all these details, and the fact that Defendant and his invited guests engaged in private behavior in the junkyard, the Court finds he had a subjective expectation of privacy in the junkyard when the gate was closed.
The Court is not aware of any cases in the Ninth Circuit or this District involving a pole camera positioned to allow round-the-clock observation of a privately-owned outdoor area not fully visible from the street. Both parties cite the Brooks case from this District — the government to support its position and Defendant to distinguish it. United States v. Brooks, 911 F. Supp. 2d 836 (D. Ariz. 2012). This Court does not rely on Brooks because, in that case, the area captured by the camera was fully visible to anyone that entered the apartment complex through the unlocked pedestrian gate or from the adjoining open-air arena parking lot. Id. at 843.
The Supreme Court holds that a person does not have a reasonable expectation of privacy from aerial surveillance in lawful airspace (used to identify marijuana plants), even if the area is obstructed from street view. See Ciraolo, 476 U.S. at 213-14; Florida v. Riley, 488 U.S. 445, 450 (1989). The Court relied, in part, upon the fact that “private and commercial flight in the public airways is routine.” Ciraolo, 476 U.S. at 215; see Riley, 488 U.S. at 451 (noting that helicopters flying over at 400 feet are not “sufficiently rare” that a person can reasonably rely on not being observed from that perspective). In contrast, constant video surveillance of private property is not routine. Further, a one-time flight over a property is substantially less invasive than constant video surveillance. See United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (noting that the minimal intrusion of a fly-over does not authorize all possible surveillance). The Ninth Circuit has instructed that when evaluating a person’s expectation of privacy, courts must consider “the severity of the intrusion to which they were subjected” and “hidden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement.” United States v. Nerber, 222 F.3d 597, 602-03 (9th Cir. 2000) (citing Cuevas-Sanchez, 821 F.2d at 251). Defendant Castro-Valenzuela did not knowingly expose the activities of the junkyard, occurring with the gate closed, to constant video surveillance. His expectation to be free from such monitoring in his backyard is one society would recognize as reasonable. See id. at 604 (finding reasonable privacy interest when alone in another person’s hotel room even though a person cannot expect “total privacy” in that space); Cuevas-Sanchez, 821 F.2d at 251.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"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
property."
—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
Amendment."
—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
"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)