Search & Seizure, can a camera user standing on public ground use a lense to see evidence not in plainview?

Question

example: An informant "looking" for particular evidence drives up the road, parks the car, but can not see in plain view the evidence in question inside of a garage window, (with no enhancements, by the naked eye) He then returns to the car to retrieve a zoom-lense camera to use as a sight enhancement, He then can see the evidence, looking through the garage window, he gets back into the car and drives to the magistrate office, completes an application & affidavit for probable cause, stating that "looking through his camera, he was able to see... " the warrant for the seizure is approved by the magistrate. later, the seizure warrant was presented to me and the items were seized. Important: No place on public, or invited ground could a person have a plain view of inside the garage window. Does anyone know of any case law examples of a situation as described above? Was it a legal search or was it tainted because of the rules under the 4th Amendment? Should the evidence be suppressed?

The subject s "evidence" was not an auto, and was not capable of being moved quickly. The cameraman DID NOT take any photos of the evidence, just used the "opportunity" as a reason for probable cause to have the warrant approved. On the probable cause admitted that he had to "look through his lense" ..... Any idea on how many feet away is the normal "plainview" to look through a 24 inch by 24 inch window to see an object that was no bigger than 12 inches x 12 inches, sitting over 4 ft away from the window? This window was over 75 foot away from the road, with no lighting in a dark building. Anyone know of any case law that I can present this fact. I'm without legal help, presenting the case on my own.

Answer 1

Disclaimer: I am not an attorney, and I do not hold a license to practice law. With that being said, I'll continue, and you can take my opinion at your own risk.

The facts as you've laid them out would support a supression of the evidence, it being declared inadmissable, and all sorts of other not-goodness. In the scenario you've laid out, everything violated the 4th Amendment.

In the past, the Supreme Court has made decisions on the kind of scenario you're talking about. For example, in a case with a drug dog, even sniffing cars almost at random without any probable cause, looking for drugs; the Court held that was a valid search. In a different case, a police helicopter was flying around with infrared heat-sensing equipment, looking for the heat signature of lamps used in growing marijuana hydroponically. The Supreme Court said that was a completely illegal search. Their reasoning would take more space to explain here than we have. The only suspicion I have for the differences in these outcomes is that a dog has natural senses, but the infrared scanner was completely artificial, and therefore somehow more intrusive. It's late, I'm not in my office, so I can't give you the exact citations on these cases now. Feel free to e-mail me on Monday.

Another big issue is that this is an informant who gleaned the information in the first place, not a police officer. That plays into an arena of the credibilty and sufficiency of the informant's testimony. The informant could have gathered that information with the camera in the way you described, but it is much more likely that the police would have staked-out that garage to observe more evidence before arresting anyone or making any warrants. It would have taken a really bad magistrate to grant a warrant in the first place with what little they had to go on.

Hope that gave you some clues to flesh out the answer.

Skylor Williams

Answer 2

First, informants don't fill out the applications -- that's the task of law enforcement officials. Also, because the Fourth Amendment does not apply to private actors, the informant's search is not in violation of the Constitution and the evidence will not be suppressed.

If the informant in your hypothetical, however, is not a private actor (as is usually the case) but a law enforcement official, the question is whether the sense-enhancing technology is in general use. If it is not, then the Fourth Amendment has been violated and the evidence should be suppressed

The facts you've laid out here are similar to those in Kyllo v. United States (agents used thermal imaging device instead of a camera).

Answer 3

To be a 4th Amendment issue, it must have been state action. From your account of the facts, it is not clear that the cameraman was a governmental entity or that he waa acting at the state's bidding. If he was a private informant who gathered the evidence and then gave it to the police, and then they acted on it, it won't matter for 4th Amendment purposes if the way the private citizen gathered the evidence was "illegal." The Fourth Amendment only protects from certain privacy infringements by state actors.
Even if the cameraman was a state actor, his using the sense-enhancing technology he did was not unconstitutional under the controlling case, Kyllo (which involved using infrared technology to detect heat lamps used to grow marijuana). Justice Scalia in that opinion makes it clear that using sense-enhancing technology that was not available in 1791 to obtain information that couldn't otherwise be discernable is unconstitutional (by state actors), but he makes an exception for technology in "general public use." Otherwise, eyeglasses may not be allowed. So, it seems that a camera or pair of binoculars would fall under this exception.
These are the twop biggest obstacles to a motion to suppress in this case.

Answer 4

If you know that he purposely used the lens for that specific purpose, it would be considered an unlawful search. The warrant must be obtained for 'probable cause', then the search can be conducted. There must also be individual items listed on the warrant as well. In other words, what they are looking for must be specific. No warrant for a search, NO search. The defense attorney will state to the judge that an unlawful search was conducted, and by what means. The case will be dismissed on the grounds of not having the search warrant in advance.

HOWEVER, if the property in question is a automobile or means of transportation, whoever shot the picture was doing so under time constraints. Meaning that the property would be easily removed and hidden somewhere else. In that case, the judge would consider it.

Answer 5

if the "informant" was acting as an agent for law enforcement, where as he was told to go to your house and look in the window to see if he can see "evidence" then he is held to the same level as a law enforcement officer. but if that person was acting on his own without law enforcement instruction then the case may be held up in court.

Answer 6

I would think it would have to be with the naked eye. In plain sight. Using a camera is not in plain sight, I wouldn't think. You could use an x-ray machine or something of the like and say it was in plain sight if that was the case.

Answer 7

in accordance to the Exclusionary Rule, any illegally obtained evidence won't have the capacity to be utilized in court docket. that's a contravention of the Fourth exchange. that's an important component of yank Jurisprudence.

Answer 8

if he is not on your property but in a public streey, just because he uses a camera does not mean it is illegal. there were no curtins up so it should hold up in court, just depends on the prosecution and defense.

Answer 9

Sounds like a big invasion of privacy to me. Of course they can go through your trash so maybe I am wrong

Answer 10

good luck. the constitution does not hold up in court.