Can the FBI Monitor Your Web Browsing Without a Warrant?

[Tgace]

The threshold question for the discussion should be do you have a right to privacy for the electronic trail you leave while surfing in a public domain? Much of the recent 4th amendment case law makes a distinction between your house and elsewhere. A good analogy is warrantless measuring of heat exces from houses that might be engaged in marijuana growing operations. Since the police activity doesn't involve any real physical intrusion, coupled with readily available technology to measure the heat, the courts take a different approach. 4th amendment protections are not absolute.

In association with this point, heres a question for you guys. If I as a LEO were to use a pair of binoculars to look into your window and see you doing something illegal, would you say thats a 4th amendment violation? How about a thermal imager? A parabolic microphone? Where do you draw the "plain view" line?

 

[Tgace]

5. The person being stopped has nothing to hide but feels the stop and/or request was unreasonable and feels the officer had no valid reason for probable cause--this being complicated by a perception that he was politically, ethnically, or racially profiled.

If we have probable cause, we wouldnt be asking.

Not too long ago a pair of officers asked a driver for consent to search and found a murdered body in the trunk...you never know if you dont ask.

 

[OUMoose]

In association with this point, heres a question for you guys. If I as a LEO were to use a pair of binoculars to look into your window and see you doing something illegal, would you say thats a 4th amendment violation? How about a thermal imager? A parabolic microphone? Where do you draw the "plain view" line?

Unless you had a warrant on you, why are you looking/listening in my house with that equipment? That's not exactly "plain view".

If, as a LEO, you were walking by 2 guys standing on a porch talking about some illicit activity, I could see where that blurs the line a little.

 

[Tgace]

Unless you had a warrant on you, why are you looking/listening in my house with that equipment? That's not exactly "plain view".

If, as a LEO, you were walking by 2 guys standing on a porch talking about some illicit activity, I could see where that blurs the line a little.

You will find this site interesting. Some of those are fully legal, some are not (but may be)...

http://www.criminal-defense-colorado-springs.com/Surveillance.htm

BINOCULARS, TELESCOPE, TELESCOPIC LENS, PHOTO ENLARGEMENT

Use of a bifocals, binoculars, field glass telescope or a similar device to magnify does not constitute an illegal search. United States v. Lee, 274 U.S. 559, 71 L.Ed. 1202 (1927).

Under Katz, the focus will be whether one has an expectation of privacy, and if that expectation is reasonable. See:

1. State v. Abislaiman, 437 So.2d 181 (Fla. App. 1983) (hospital emergency room parking lot surveillance camera zoomed on automobile - man with gun - lawful - diminished expectation of privacy in vehicle.) A marijuana plant observed in the window would be different than a marijuana plant in a place in the interior where one would expect it to be secreted from view.
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2. United States v. Kim, 415 F.Supp 1252 (D.Haw. 1976). FBI agents 1/4 mile away, viewed defendant's reading material through a 60 mm opening via an 800 mm telescope - held to be a search.
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Use of illumination or binoculars to improve the visibility of an object already in plain view has been held constitutional. See Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion); Fullbright v. United States, 392 F.2d 432, 434-45 (10th Cir.), cert. denied, 393 U.S. 830 (1968). But see United States v. Taborda, 635 F.2d 131, 137-39 (2d Cir. 1980) (holding that telescopic observation of the home "impairs a legitimate expectation of privacy")

Held in Sundheim v. Board of Cty. Comm'rs, 904 P.2d 1337 (Colo. App. 1995): It is undisputed that some of the investigator's observations were made from a public road outside plaintiffs' property. Because there is no invasion of privacy involved in observing that which is plainly visible to the public, a person's real property is not protected from observations lawfully made from outside its perimeter. Hoffman v. People, 780 P.2d 471 (Colo. 1989). Neither are we persuaded that the use of a camera with a telescopic lens transforms this lawful observation into an unreasonable search. See United States v. Rucinski, 658 F.2d 741 (10th Cir. 1981); cf. United States v. Bassford, 601 F. Supp. 1324 (D. Me. 1985), aff'd, 812 F.2d 16 (1st Cir. 1987) (use of binoculars to enhance view of readily visible marijuana plants did not constitute unreasonable search); State v. Rogers, 100 N.M. 517, 673 P.2d 142 (N.M.App. 1983) (use of binoculars does not render aerial surveillance unconstitutionally intrusive).

See:

State v. Lewis, 296 Or. 57, 672 P.2d 708 (1983), where the court held that no invasion of any private interest occurred when the police used a telescopic lens to photograph the defendant through the living room window of his residence, merely amplifying the view that would have been visible from the public sidewalk.

State v. Wacker, 317 Or. 419, 856 P.2d 1029 (1993), the court held that the use of a starlight scope to observe the defendant's activities in a car in the parking lot of a tavern, where patrons of the tavern were regularly passing within a few feet, was not a search. The use of the light-enhancing device merely aided the police in seeing activities that otherwise could have been seen with the naked eye by a bystander. In each of those cases, the character of the scrutiny by the government was held not to be sufficiently intrusive so as to constitute a "search."

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A dissenting judge in United States v. Cusumano, 83 F.3d 1247 (10th Cir. 1996) stated: I recognize that the use of illumination or binoculars to improve the visibility of an object already in plain view has been held constitutional. See Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion); United States v. Lee, 274 U.S. 559, 563 (1927); Fullbright v. United States, 392 F.2d 432, 434-45 (10th Cir.), cert. denied, 393 U.S. 830 (1968). But see United States v. Taborda, 635 F.2d 131, 137-39 (2d Cir. 1980) (holding that telescopic observation of the home "impair a legitimate expectation of privacy").

Whether the search with visual aid is lawful without a warrant will depend upon the facts and circumstances

 

[hardheadjarhead]

If the object is in plain view, and the binocs are used to enhance the view...sure. That's reasonable. Unless of course you're watching my wife bathe.

But if you were going from house to house randomly, looking in with binoculars, that might be pushing the issue a bit. I'm not sure that would pass the same constitutional test. I don't doubt that issue will eventually pop up someday.


Regards,


Steve

 

[Simon Curran]

Hi HARDHEADJARHEAD,
and thanks for the food for thought, however, I must still insist that as long as a person has done nothing wrong then they have nothing to worry about, if it is something socially embarassing, then I am sure that it will be treated with sensitivity, and if it is something inadvertantly illegal, then I would say that common sense would prevail, and any law enforcement officer would use their discretion wisely, failing that the judicial system.
Simon

 

[PeachMonkey]

...however, I must still insist that as long as a person has done nothing wrong then they have nothing to worry about, if it is something socially embarassing, then I am sure that it will be treated with sensitivity, and if it is something inadvertantly illegal, then I would say that common sense would prevail, and any law enforcement officer would use their discretion wisely, failing that the judicial system.

The concept that "people who have done nothing wrong have nothing to worry about" is a classic tool of police states and dictatorships everywhere, and runs counter to everything we believe about freedom.

Moreover, the history of abuses of freedom and restriction on law enforcement in the United States alone will show you how the idea about common sense restraining socially embarassing data is fallacious.

 

[Simon Curran]

The concept that "people who have done nothing wrong have nothing to worry about" is a classic tool of police states and dictatorships everywhere, and runs counter to everything we believe about freedom.

Moreover, the history of abuses of freedom and restriction on law enforcement in the United States alone will show you how the idea about common sense restraining socially embarassing data is fallacious.

Perhaps so, but I am sure that there are more decent law enfocement personnel than otherwise.

 

[PeachMonkey]

Perhaps so, but I am sure that there are more decent law enfocement personnel than otherwise.

All it takes is the one less-than-decent law enforcement officer to ruin your life. That's why checks and balances are crucial.

 

[Bob Hubbard]

Checks and balances that are too often ignored, sadly.

 

[Simon Curran]

All it takes is the one less-than-decent law enforcement officer to ruin your life. That's why checks and balances are crucial.

Very true, but I went through a stage of getting pulled over about once per week about 10 years ago, because I was a young man with a fast car, just for routine checks (and I'm sure it isn't the same for everyone) but even though it was an inconvenience at the time, I thought about it later when my car got stolen, I wish they could have been around to stop the thieves.

 

[PeachMonkey]

Very true, but I went through a stage of getting pulled over about once per week about 10 years ago, because I was a young man with a fast car, just for routine checks (and I'm sure it isn't the same for everyone) but even though it was an inconvenience at the time, I thought about it later when my car got stolen, I wish they could have been around to stop the thieves.

When they were pulling you over, they were likely decent law-enforcement officers doing their jobs. When your car was stolen, they were likely decent law-enforcement officers that can't possibly be everywhere at once.

Neither point is relevant to the fact that checks and balances are required for the rare isolated case when a less-than-decent LEO can wreak havoc.

 

[Simon Curran]

When they were pulling you over, they were likely decent law-enforcement officers doing their jobs. When your car was stolen, they were likely decent law-enforcement officers that can't possibly be everywhere at once.

Neither point is relevant to the fact that checks and balances are required for the rare isolated case when a less-than-decent LEO can wreak havoc.

No arguement from me there, but in my personal experience (as maybe I should have said in the start) police officers are generally decent and honest enough.

 

[PeachMonkey]

No arguement from me there, but in my personal experience (as maybe I should have said in the start) police officers are generally decent and honest enough.

That's certainly been my experience as well.

The system of checks and balances is there to protect us from both aberrations and from a systematized police state.

 

[Simon Curran]

That's certainly been my experience as well.

The system of checks and balances is there to protect us from both aberrations and from a systematized police state.

And more the better for it.