Due Process

In high school many of us read the classic 1984, in which George Orwell posited a society where citizens were subject to constant surveillance by the omni-present Big Brother. Advocates of civil liberty often pointed to Orwell’s classic as the end result of a society where individual privacy rights were subordinated to the public “good.” In 1967 the United States Supreme Court issued its landmark privacy decision in U.S. v. Katz, ruling that the Fourth Amendment to the Constitution grants each of us an expectation of privacy in certain aspects of our lives. That expectation triggers the need for a judicial warrant to justify police or governmental intrusion into those private areas.

Technology has evolved and in its evolution law enforcement has been provided with multiple investigative tools. In November of this year the Supreme Court will once again consider the extent of the Fourth Amendment’s expectation of privacy when it reviews a decision from the Circuit Court of Appeals for the District of Columbia, United States v. Jones. The issue is the extended surreptitious use of a GPS tracking device to track the movements of Jones’ automobile 24 hours per day for a month. A court had previously granted agents the use of the device but for a limited period of time. The agents continued the tracking after the expiration of the court order. The information gleaned aided the Government’s proof in Jones’ trial for conspiracy to distribute narcotics.

To trigger the Fourth Amendment’s warrant requirement the first issue for that court was whether the use of a GPS tracking device on a vehicle that is traversing the public streets is a search within the meaning of the Amendment. Other Courts of Appeals have ruled that this does not constitute a search. An exception to the Amendment’s expectation of privacy right exists when citizens do not act in a manner suggesting that they do not expect government intrusion. A person in his home clearly has this expectation of privacy. When that same person places his garbage on the street he has abandoned that expectation of privacy in the contents of the garbage bag. Thus police seizures of trash and subsequent discovery of evidence hidden within does not violate the Fourth Amendment.

In Jones case the Government argued that there is no expectation of privacy in tracking a vehicle moving on the public streets as that can be observed by anyone at any time. Despite the public nature of such movement the court in Jones ruled that no one would anticipate that their movements would be tracked constantly, for a month. Video surveillance cameras are everywhere in our cities. Inspection of these videos has become an important tool for law enforcement investigating street crime. Defense lawyers as well have learned to seek information from street surveillance cameras. In a highly notorious case I defended of a man accused of being a serial stalker, video surveillance from a gas station’s camera actually demonstrated that the “victim” had set up my client, and, was actually the stalker, not him, leading to the dismissal of all charges.

The Fourth Amendment does not apply to private citizens or merchants utilizing video surveillance to protect their property and its surrounding curtilage. The Amendment is only applicable to those situations where there is government involvement. Private citizens violating another’s expectation of privacy may lead to a civil lawsuit for the invasion but may also provide the fruits of that surveillance to the police. Use of these cameras on a public street, since they are limited in what they view does not constitute the wholesale invasion of the expectation of privacy that concerned the Jones‘ court

Increased vigilance since September 11th and the advances in surveillance technology continue to challenge courts. Yes, George Orwell, Big Brother is watching.