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Matthew A. Radefeld and Daniel A. Juengel

Court approves long-term video surveillance, but worries about privacy

On Behalf of | Aug 16, 2021 | Criminal Law |

Technology has reshaped numerous aspects of society over the past few decades, including law enforcement. Police today can take advantage of devices that their predecessors just twenty or thirty years ago could have only dreamed of: license plate readers, real-time cellphone location tracking, and thermal cameras that can see through walls, to name just a few. 

Technology poses challenges

For criminal defense lawyers, their clients and the courts, law enforcement’s use of new technologies poses an ever-evolving challenge. The Fourth Amendment to the U.S. Constitution says police aren’t allowed to conduct a search of areas where citizens have a reasonable expectation of privacy without first getting a warrant. That’s a relatively straightforward principle to apply when it involves police physically entering a building or patting down a suspect. But it gets a lot more complicated when technology comes into play. 

Increasingly, criminal defense attorneys are asking the courts to consider whether using technology that “sees” things that no human police officer could ever see constitutes a search. So far, the courts have struggled to come up with a clear answer.

A recent case about video surveillance illustrates the point

Recently, a criminal defendant in an Illinois drug trafficking case asked the federal Seventh Circuit  Court of Appeals to decide whether around-the-clock video camera surveillance of the exterior of his home for 18 straight months, which police accomplished by installing remote-controlled video cameras on nearby telephone poles, constituted a search for which police should have gotten a warrant.

The defendant argued that the prolonged video surveillance was an unconstitutional search because it went too far in using technology to intrude on his life. Courts have approved the warrantless use of technology by police when it merely improves officers’ innate human senses of sight, smell, or hearing, such as the use of a directional microphone or a sensor that picks up trace chemicals. However, courts have shown far less comfort with technologies that give police superhuman capabilities, such as thermal imaging cameras that can, quite literally, see through walls. 

The Court of Appeals saw 18 months of 24/7 video surveillance as falling somewhere in the middle of those two extremes. On one hand, no human police officer could stake out a house continuously for 18 months. On the other, cameras are now so common in police work and everyday life that it’s difficult to imagine that anyone really has an expectation of privacy in the exterior of their home. 

A warning about tech’s effect on privacy rights

Ultimately, the appeals court sided with the police: it was not a “search” under the Fourth Amendment for police to stake out the suspect’s house virtually, using video cameras, for 18 months straight. But, the court also sounded a note of caution. “As technological capabilities advance…confidence that the Fourth Amendment…will adequately protect individual privacy from government intrusion diminishes.” Someday soon, the court predicted, we might have to redefine just what it means for police to conduct a search.