Federal Court Throws Out Six Weeks of Warrantless Video Surveillance

Update: On December 15, Judge Edward Shea issued his written opinion in United States v. Vargas, which you can read here.

The public got an early holiday gift today when a federal court agreed with us that six weeks of continuously video recording the front yard of someone’s home without a search warrant violates the Fourth Amendment.

In United States v. Vargas local police in rural Washington suspected Vargas of drug trafficking. In April 2013, police installed a camera on top of a utility pole overlooking his home. Even though police did not have a warrant, they nonetheless pointed the camera at his front door and driveway and began watching every day. A month later, police observed Vargas shoot some beer bottles with a gun and because Vargas was an undocumented immigrant, they had probable cause to believe he was illegally possessing a firearm. They used the video surveillance to obtain a warrant to search his home, which uncovered drugs and guns, leading to a federal indictment against Vargas.

Vargas moved to suppress the evidence and Senior U.S. District Court Judge Edward Shea invited us to submit an amicus brief, which we filed late last year. After an evidentiary hearing, the judge wanted more information about the specific surveillance equipment the government was using, details the government was unsuccessful in keeping secret.

Today Judge Shea issued this brief minute order:

Law enforcement’s warrantless and constant covert video surveillance of Defendant’s rural front yard is contrary to the public’s reasonable expectation of privacy and violates Defendant’s Fourth Amendment right to be free from unreasonable search. The video evidence and fruit of the video evidence are suppressed.

Looking at these two sentences makes clear the court was convinced with our arguments that the invasiveness of constant video surveillance pointed continuously at one of the most sensitive and private places—the front of a person’s home—triggers constitutional protection. Relying on cases decided almost 30 years ago, the government argued that it’s unreasonable for people to expect privacy in an area visible to the public. But as we explained in our amicus brief, no one expects their house to be placed under invasive 24/7 video surveillance for a month. And as the U.S. Supreme Court recently reaffirmed in Riley v. California, the ability for technology to reveal a “broad array of private information” means courts must be particularly vigilant in protecting constitutional rights in the 21st Century.

Hanni Fakhoury writes for the Electronic Frontier Foundation, where this first appeared.