
Federal Court Throws Out Six Weeks of Warrantless Video Surveillance - pwg
https://www.eff.org/deeplinks/2014/12/federal-court-agrees-eff-throws-out-six-weeks-warrantless-video-surveillance
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PeterisP
It goes against the US tradition, but I'd prefer to _not_ have the 'fruit of
the poisoned tree' doctrine but instead direct penalties for violations by
police.

As it stands, it has the following effect:

1\. If illegal actions by policemen violates the rights of someone commiting a
crime, then the evidence obtained this way is discarded, letting a true
criminal go free, assuming that the evidence actually proves guilt.

2\. If illegal actions by policemen violates the rights and privacy of an
innocent person (e.g. me) then nothing happens.

In both cases, any benefit of the doctrine goes to people who don't deserve it
- the lawbreakers with or without badges and uniforms.

For most law-abiding people who value their rights and privacy it would be
rational to request that the doctrine is "violations by police in gathering
evidence get handled by existing law".

If a policeman obtains evidence by breaking down a door without a warrant and
taking some documents, despite being a professional with special training on
what their specific rights and duties are, then let the evidence stand but let
also the policeman stand trial (not disciplinary action, but a proper trial)
for breaking and entering. Just as for cases of policemen shooting people - at
least worldwide, given the recent events I'm not sure anymore how it's in USA.

~~~
mchannon
In the US, illegal actions by policemen (alleged or not) result in suppression
of that evidence less than 10 percent of the time (in actual courts). Judges
just don't like to suppress evidence, even in the face of what you and I would
consider overwhelming reasons.

Police in the US get an extreme amount of benefit-of-the-doubt from the public
and especially prosecutors' offices (police keep them in business and both
sides value their working relationships), as we've seen in recent newsworthy
court cases- this alternate approach you've suggested does not appear to be an
improvement except in theory.

~~~
PeterisP
Bribery laws also don't mean that every crooked official gets caught, but
still they have some positive effect as a deterrent.

I'm fairly sure that if a cop had a 'less than 10 percent of the time' risk of
permanently ending his career, then they would be much more careful than they
are now. Of course, there could be an argument that we as a society don't want
our cops to be _too_ careful with rights of criminals, we also have an
interest in them taking some risk and getting risky evidence; but that's a bit
different direction of values/morals/rights.

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moonshinefe
Needing a warrant for long term video surveillance of one's home--I can get on
board with that. Despite the defendant's bad reputation, the larger
implications here have the EFF defending the common man as per usual.

~~~
Sniperfish
Absolutely. The reputation of a suspect should not be grounds for erosion of
their rights.

~~~
pdkl95
To take this a bit further:

Concepts like "rights" and "freedom" are easy when it is people you like doing
things that you like. It is so easy, that it isn't even necessary to bother
with the formalization of those concepts in these _easy_ cases. The entire
point of "rights" and "freedom" is that they _must_ be upheld for the people
you _hate_ , doing things that you _hate_.

When judging the level of freedom in a society, you don't look at how the
normal citizen is treated; you look instead at how the underclass, criminals,
and other disliked groups. If their rights are overlooked and ignored, any
claims at being a "free society" is just marketing/PR.

~~~
abakker
Thank you for saying this.

If there is every a doubt in your mind, consider that at some point, your
actions, race, or lifestyle might make you the target of similar hate. It is
very bad for any majority group to be able to take the rights away from any
minority group.

I'd point to the overturning of CA Prop 8 as a major success of the equal
protection clause, and a good example of this concept in practice. -
[http://en.wikipedia.org/wiki/California_Proposition_8_(2008)](http://en.wikipedia.org/wiki/California_Proposition_8_\(2008\))

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lostcolony
Wow. Not only the obvious issues with this, but they used his shooting some
cans (not exactly a crime) with a rifle as grounds for a warrant to search his
house, for an unrelated crime (the one they really wanted to peg him on, drug
trafficking; a diatribe in itself). That's all -manner- of wrong.

~~~
rayiner
Shooting cans isn't a crime, but being an illegal alien and possessing a gun
violates federal law.

> 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.

If they had seen him shooting cans when walking by on the street, and then
gotten a warrant to search his house, this would've been totally legit.

Edit: don't get the down votes. Do we not like gun control or what?

~~~
lsaferite
If he was a known undocumented immigrant, why couldn't ICE step in and arrest
him and in the process find a valid reason to search the residence?

Mind you, I'm super glad the judgement was made in his favor, but only because
of HOW they did it, not why.

~~~
rayiner
I think evidence of illegal firearms possession is a hell of a better reason
to search his residence than his just being an undocumented immigrant.

~~~
lsaferite
I agree. However, the manner in which the evidence of the illegal firearm was
obtained is a serious issue.

So, my question was, if they had a reasonable suspicion he was a drug dealer
but not enough evidence to obtain a warrant, then why not let ICE handle the
matter since he was an illegal immigrant anyway?

And to be clear so people don't get it in their head I have something against
immigrants, I'm all for people immigrating to wherever they want to live, but
it's 100% unfair to those immigrants who did it legally to treat illegals like
anything other than an illegal immigrant who should be deported.

P.S. Is using the term undocumented immigrant supposed to be the PC way of
saying illegal immigrant?

~~~
Karunamon
If I had to guess, because it's problematic because they wouldn't have had
probable cause to determine his immigration status anyways. I.e. they can't
just walk up to the guy's house and demand to see his green card just because.

And yeah, that's pretty much exactly what it is. Some group of fools think
that referring to immigrants with the qualifier "illegal" is somehow a slight
against the person rather than their legal status.

~~~
refurb
_they can 't just walk up to the guy's house and demand to see his green card
just because._

Sure they can! All immigrants are required to have proof of status on them at
all times. It's rarely enforced, but it is the law.

Before I became a citizen I carried a copy of my green card with me at all
times.

~~~
Karunamon
Being required to carry it at all times and being hassled on the grounds of
your skin color because you _might_ be here illegally are two different
things. The reasonable suspicion standard and other rights don't stop applying
just because someone is an immigrant.

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iandanforth
So how do you go about applying this ruling? If I live in the suburbs do I
have this protection? What if I live in a city? There are likely to be
thousands of homes in view of existing cameras. Which ones of those are
collecting admissible evidence? If a police department doesn't aim the camera
at only one person's front door, but films several homes as a pretense, is
that ok?

Is two weeks too long to set up surveillance? What about two hours?

I really hate the "reasonable expectation" standard in general and this ruling
does nothing to clear the waters.

~~~
pavel_lishin
I would imagine that this sets the precedent of requiring a warrant to either
set up a camera, or to access an existing camera's records.

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mdda
It's also interesting that they might not have got a warrant to look at his
garden for a month. They weren't looking for any particular behaviour - just
something that would allow them to barge into his house and discover evidence
of drug-related wrong-doing. If they had spotted (say) public drunkenness,
they might also have argued that his house be searched. Putting up a camera to
spot 'any tiny thing that the person does wrong' would seem to be very flimsy
warrant-wise (I would hope).

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intopieces
My local news station likes to do these specials about the "supposedly
homeless" where they follow people who ask for handouts by the highway and
film them going in to their homes and also film them through their front
windows. I challeged the reporter on the ethics of this and she told me, 'It's
perfectly legal.' While technically true, is that really a good source of
justification?

~~~
emiliobumachar
If the beggars actually pretend to be homeless, I think they're fair game for
being exposed. But asking for handouts by itself is not pretending to be
homeless.

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justcommenting
i wonder if this will increase or decrease the use of 'parallel construction.'

in other words, will this reduce the unlawful use of surveillance tech, or
merely prompt officers/agents to walk by places 'by chance' to observe things
'serendipitously' because they're still using inadmissible surveillance tech
but also know they'll need to fabricate something plausible for the courts?

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Poiesis
If a human was watching the house in person, would a search warrant have
needed to be obtained? Not trying to incite anything here--I realize there are
differences--but I was curious about the legal implications of video vs. in-
person surveillance of a property's exterior.

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millerc
<sarcasm>Wow. Save (an alledged) drug trafficker from incriminating himself in
plain view. They really did the public a huge favour here. </sarcasm>

As much as I support the rule of law, there's no way I can interpret that as
benefiting mankind in any way.

~~~
sls
No civil libertarian is delighted to save criminals from prosecution just to
frustrate law enforcement. It often happens that the frontiers of acceptable
state conduct are tested in such cases, though. Here, EFF isn't interested in
making sure Vargas can shoot cans in his yard without interference. Rather,
they are concerned that the government not be able to put people's homes under
24/7 video surveillance without even probable cause (which is all that is
needed for a warrant).

~~~
millerc
Then, maybe the correct course of action for the EFF would be to work on
improving the warrant system, rather than working on keeping alleged drug-
dealing, unlicensed gun owners, illegal immigrants out of legal trouble?

~~~
pygy_
_> Then, maybe the correct course of action for the EFF would be to work on
improving the warrant system, rather than working on keeping alleged drug-
dealing, unlicensed gun owners, illegal immigrants out of legal trouble?_

That's what they are doing, this is how jurisprudence works.

Hadn't they challenged the warantless spying, it would have made a precedent
in court. The police could have relied on the acceptance of the evidence in
this case to do it again, anywhere in the US.

