Public Surveillance and Your Fourth Amendment Rights: An Evolving Understanding

By Criminal Defense Attorney Jennifer Zide www.Zidelaw.com ph: (805) 477-0327/ 477-8024

Contact us today for any questions about your constitutional rights and your criminal case.

Overview:

Generally, it is well-recognized that public areas, those in which citizens have no reasonable expectation of privacy, cannot be subject to a search or an intrusion on our privacy rights. However, as our technological abilities grow, so too does the potential risk to our freedoms. To what extent should our understanding of Fourth Amendment privacy rights evolve in response to technological developments which promise more public safety and protection, but which also result in more intrusion?

“The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — did live, from habit that became instinct — in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”

– 1984, George Orwell

I. Does Generalized Monitoring that is Not a Response to Any Individualized Suspicion of Criminal Activity Violate our Individual Privacy Interests Under the Fourth Amendment?

As the court made clear in the 1960s in Katz, “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967). However, as our technology has evolved over the last half-century, our interpretation of Fourth Amendment protections may also change. Today, when we journey outside of our old understanding of privacy and intrusions on that privacy, we confront a brave new world in which surveillance, whether it be that suggested by something as seemingly small as red light camera technology or another technology designed to meet a more serious, perceived public safety need, has become generalized. To the extent that surveillance is generalized and not geared to the investigation of a specific, suspected crime, there may be an issue as to whether the Fourth Amendment requirement of reasonable, articulable suspicion is met to justify such intrusions.

A. The Reasonableness Requirement

Under the Fourth Amendment, only “reasonable” seizures and searches are constitutional. The Founding Fathers highlighted this requirement specifically in response to their past experience and concerns. Should the government be able to stop people arbitrarily or should some justification be required? If there is no requirement of individualized suspicion, what are the ramifications for society? In the end, it conjures the specter of a government in total control and not responsive to the people, an image that strikes at the heart of our democratic ideals.

In an attempt to give life to these protections and make them real, courts have interpreted what is “reasonable” to require different levels of suspicion to justify varying restraints on our liberty. For a less extensive or serious type of intrusion, a “stop” as opposed to an “arrest” or similar restraint, a “reasonable suspicion” that the person targeted is engaged in criminal activity must exist and that suspicion must be supported by specific and articulable facts. For an arrest or comparable restraint, a higher level of suspicion known as “probable cause” must exist. This concept of “probable cause” is fluid and heavily based on the facts of each individual case. ”Probable cause” to arrest exists when the totality of the circumstances would cause a person of ordinary care and prudence to entertain an honest and strong suspicion that the person to be arrested is guilty of a crime. Terry v. Ohio, (1968) 392 U.S. 1, 27. To make a valid arrest without a warrant, the officer must therefore have sufficient factual information to make an average, reasonable person with the same training and experience believe or strongly suspect that the individual is guilty of a crime. Terry v. Ohio, (1968) 392 U.S. 1, 29. Probable cause to arrest requires more than the “reasonable suspicion” required for a stop, and is the same standard to obtain an arrest warrant or a search warrant. In re Marcellus L., (1991) 229 Cal.App.3d 134.

II. Is this kind of generalized surveillance, not motivated by any particular suspicion that you as an individual are doing something wrong, in keeping with the underlying theme of the Fourth Amendment?

The issue when it comes to generalized surveillance is an interesting one. Strictly speaking, there is no intrusion. We are not stopped even briefly. In fact, we pass by in our daily lives uninterrupted, only observed. There arguably is no “search” under our old understanding because we have no privacy interest or reasonable expectation of privacy in public areas. However, in such a hypothetical, the government is nevertheless still monitoring our activities. Is this kind of surveillance or monitoring, even when nothing physically is done and no areas of privacy invaded as in a search or a seizure, nevertheless an intrusion? And, where the underlying goal of the surveillance is the detection and investigation of possible criminal activity, is it really any different from stopping someone to investigate a possible offense, only without that particularized, individual suspicion that would otherwise be required? Although centuries, technologies, and life experiences separate us from the drafters of the Constitution, one theme remains constant: that the Fourth Amendment with its reasonableness requirement was designed to guard against unjustified or undifferentiated government intrusions on our liberty. Our modern technologies are capable of intrusions that are now very different in form from what the Founders imagined. Such technologies may also challenge us to come to terms with a new understanding of privacy and the areas in which we, as a society, expect that privacy. However the question remains: does that make the act of such generalized, public surveillance any less the kind of intrusion that the Fourth Amendment was designed to regulate?

A. The Camera as Witness: Science, Technology and the Confrontation Clause

In this Orwellian vision, the camera takes the place of an individual police officer with training, experience, discretion and individual judgment. If a camera “witnesses” an offense, who is there to testify to it? Such “testimony”, if offered, would be inadmissible hearsay and would violate our rights under the Confrontation Clause. At the heart of our democratic values and constitutional protections is our right to question the government and challenge the case against us. The right to confront and cross-examine is the light that illuminates our other rights. How will deficiencies in a case be exposed if not through critical examination? And if the defense is deprived of that right, how are we to preserve our core beliefs in the Presumption of Innocence and Proof Beyond a Reasonable Doubt?

This kind of situation, where a video and still shot camera photography is admitted for the truth but is not subject to any kind of effective cross-examination, is reminiscent of the scenarios that the courts found unconstitutional in Crawford, Melendez-Diaz, and Bullcoming v. New Mexico. In all these cases – whether dealing with a statement of an out of court witness now being offered to support the charges, a lab test result offered to prove that the substance tested was cocaine, or a lab test result on a blood sample offered without live testimony from the technician who actually performed the test – the court found that the Confrontation Clause guarantees the defendant’s right to fully explore and question the evidence offered against him. In Crawford, grandparent to both Melendez-Diaz and Bullcoming, the court made clear that the Confrontation Clause of the U.S. Constitution guarantees every person’s right to be confronted with the witnesses against him. In Crawford, the court held that to be true to the Confrontation Clause is to admit the “[t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to crossexamine,” 541 U.S. at 59. Even the apparent reliability of a testimonial statement does not make it immune from examination or mean that it is not to be questioned. As the court reflected on in Crawford, the “obviou[s] reliab[ility]” of a testimonial statement does not dispense with the Confrontation Clause. 541 U. S., at 62; see id., at 61 (Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing [the evidence] in the crucible of cross-examination”).

The Confrontation Clause, not as often visited as the Fourth or Fifth Amendments, still had special meaning to the Founding Fathers who crafted our Constitutional protections. Our right to effectively challenge the charges against us, to test the government’s case, or to make sure that allegations are based on fact not on rumor, prejudice or conjecture, is only kept alive when our ability to get at what lies under evidence and test results is preserved. In Bullcoming v. New Mexico, the United States Supreme Court held that the lab technician who actually tested the blood in a DUI case must testify in the trial or an objection based upon the Sixth Amendment’s Confrontation Clause should be sustained. The court there relied upon the principle highlighted by the court in its 2009 Melendez-Diaz v. Massachusetts decision, that the witness who did the testing in a laboratory must testify live in order to satisfy the Confrontation Clause. Just like in a the case of a tested drug or blood sample, the only way to get at whether the underlying result is reliable and accurate in the case of a photograph or a video is to scratch the surface of the test result, picture, or video and examine how that result was achieved. As the court made clear in Melendez-Diaz, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess “the scientific acumen of Mme. Curie and the veracity of Mother Teresa.” For the courts in Crawford and Melendez-Diaz, the concern is the journey, not the destination.

In Bullcoming v. New Mexico, the New Mexico Supreme court believed that the testimony of a fellow lab analyst would be sufficient to preserve the defendant’s important rights to confront and cross-examine. Specifically, the Court believed that the provision of another analyst who could set the stage for the test result itself, without knowing all the details that lay under the particular test, was adequate to meet Constitutional requirements. The New Mexico Supreme Court believed that Razatos could substitute for Caylor because Razatos “qualified as an expert witness with respect to the gas chromatograph machine and the SLD’s laboratory procedures.” However, the testimony of just any analyst, and not of the person with particular knowledge as to that test, the methods employed, and his specific certifications and qualifications, was found insufficient to meet the demands of the Confrontation Clause.

This scenario is comparable to the scenario we confront in the case of generalized public surveillance. In such cases, there may be no known accuracy checks on the cameras, no safeguards or maintenance protocols, and ultimately no live person with knowledge about the particular machine in question who can be questioned to expose any inaccuracies. In Bullcoming, how we were to see the result depended on live, in court testimony by a qualified analyst who could provide the background on all that went in to reaching that end result we see on paper or video. Even the armor of perceived “reliability” does not insulate the evidence from true, critical examination. It is that process of testing evidence in the “crucible of cross-examination” that, the Crawford court makes clear, is the real issue in preserving the defendant’s constitutional rights.

B. Surveillance in Response to Individualized Suspicion is Constitutional

As we grapple with this emerging issue, we can see that, where electronic surveillance monitoring has been upheld, such monitoring has taken place in response to a specific suspicion of criminal activity. In the case of United States v. Jackson, for instance, the use of silent video cameras installed without a warrant on telephone poles outside a drug defendant’s residence can be distinguished as an investigation based on particularized suspicion. Suspicion focused on that one individual and, in response to that reasonable suspicion based on specific, articulable facts, surveillance cameras were installed. Similarly in United States v McIver, where the 9th Circuit Court of Appeals upheld the warrantless placement of unmanned, motion-activated video and still surveillance cameras in a remote area of a national forest, such cameras were constitutional only because designed to target individuals suspected of harvesting marijuana plants. Such cameras were not designed to monitor the population as a whole, absent some individualized suspicion as to criminal activity.

C. Generalized Surveillance is Comparable to the Kind of Dragnet Approach Found to Violate the Fourth Amendment

In City of Indianapolis v. Edmond, the United States Supreme Court held that the city’s roadblock program to interdict drug offenders violated the Fourth Amendment. There, the city’s police department set up a roadblock and searched vehicles to look for drug offenders. The Court determined that this was a dragnet type investigation impermissible under the Fourth Amendment because it lacked individualized suspicion of a crime to justify the searches. Although the cameras themselves would not be as intrusive as a stop and search roadblock or as clearly involve a “search” of an area in which a defendant possessed a reasonable expectation of privacy, it seems clear from the Court’s opinion in Edmond that trying to discover criminal activity using dragnet type techniques is unreasonable under the Fourth Amendment.

D. Our Fourth Amendment Protections: A New Understanding

While generally we might accept that citizens do not have a privacy interest in public, should that be changeable when we are talking about generalized, law-enforcement monitoring of public spaces? Should we allow room for growth in both our understanding and application of Fourth Amendment protections? And, if so, how much? What are the implications of change and what are the risks of not changing?

As U.S. Supreme Court Justice Brennan argued, constitutional law should not be static and bound by historical precedent, but instead should “come alive as a living process responsible to changing human needs.” Justice Brennan, “How Goes the Supreme Court?” 36 Mercer L. Rev. 781, 787 (1985), cited in Boston College Law Review Volume 32, Issue 4, Number 4, “Justice Brennan’s Use of Scientific and Empirical Evidence in Constitutional and Administrative Law.” As Justice Brennan reflected unhappily on some recent cases that be believed had failed that test of respecting our Constitution, not just as something to be dusted off, looked at and returned unchanged and reverently to its pedestal, but as a living, breathing embodiment of our values and ideals as a society, he nevertheless remained optimistic. Writing in that same law review article, Justice Brennan reflected on the changing tides that bombard us and his faith that our quest for freedom and dignity remains constant.

“If we see last Term’s few decisions resolving conflicts between the individual and the government in favor of the state as a departure, nevertheless we know it is a departure that must be short-lived, for in our society the quest for the freedom, the dignity, and the rights of man will never end. The quest, though always old, is never old, like the poor old woman in Yeats’ play.

“Did you see an old woman going down the path? [asked Bridget]

I did not, [replied Patrick, who had come into the house just after the old woman

left it] but I saw a young girl and she had the walk of a queen.”

- Justice Brennan at 793-94 (quoting W.B. Yeats, THE HOUR-GLASS AND OTHER PLAYS (1916)).

Like the woman in the Yeats play, the Constitution is always young and alive with promise. What it is and will become, is all in how we see it.

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