Published by The Lawfare Institute
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The first duty of government is the safety of its people—by Constitutional means and methods. Technology, including the means for covert surveillance of individuals through the use of a hidden video camera that wirelessly transmits images to an offsite computer of a law enforcement officer, can be an important tool in investigating crime. Here, in April and May 2013, law enforcement officers obtained permission from a utility company to install, and did install, a disguised video camera on a utility pole more than one hundred yards from Defendant Leonel Michel Vargas' rural eastern Washington home. It continuously recorded activity in the front yard of Mr. Vargas' property for more than six weeks and transmitted those images to a law enforcement officer's computer. This permitted the officer, when viewing live footage, to pan and zoom the camera and, when the officer was off duty, to record the footage for later viewing. Mr. Vargas argues this constant surreptitious video viewing and recording of the activities at the front of his home and yard violated his Fourth Amendment right to be free from unreasonable search. For that reason, he asks the Court to suppress the evidence obtained as a result of this prolonged surreptitious video viewing and recording. The U.S. Attorney’s Office (USAO) opposes suppression, contending that the video feed simply permitted law enforcement to remotely observe what any law enforcement officer could have observed if he passed by Mr. Vargas’ front yard on the public gravel access road in front of Mr. Vargas’ home. After reviewing relevant Fourth Amendment jurisprudence and applying such to the facts here, the Court rules that the Constitution permits law enforcement officers to remotely and continuously view and record an individual’s front yard (and the activities and people thereon) through the use of a hidden video camera concealed off of the individual’s property but only upon obtaining a search warrant from a judge based on a showing of probable cause to believe criminal activity was occurring. The American people have a reasonable expectation of privacy in the activities occurring in and around the front yard of their homes particularly where the home is located in a very rural, isolated setting. This reasonable expectation of privacy prohibits the warrantless, continuous, and covert recording of Mr. Vargas’ front yard for six weeks. Mr. Vargas’ motion to suppress the evidence obtained as a result of the video feed is granted. The Court provides a more detailed articulation of the factual circumstances and its ruling below.