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on an “effect” for the purpose of obtaining information constitutes
a “search.” This type of encroachment on an area enumerated in the
Amendment would have been considered a search within the mean-
ing of the Amendment at the time it was adopted (pp. 3–4).
b. This conclusion is consistent with this Court’s Fourth Amendment
jurisprudence, which until the latter half of the 20th century was
tied to common-law trespass. Later cases, which have deviated from
that exclusively property-based approach, have applied the analysis
of Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id. , at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable
expectation of privacy,” because Jones’s Fourth Amendment rights
do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyl o
v. United States, 533 U.S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular con-
cern for government trespass upon the areas it enumerates. The Katz
reasonable-expectation-of-privacy test has been added to, but not
substituted for, the common-law trespassory test. See Alderman v.
United States, 394 U.S. 165, 176; Soldal v. Cook County, 506 U.S. 56, 64. United States v. Knotts, 460 U.S. 276, and United States v. Karo, 468 U.S. 705—post- Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another
form of electronic monitoring—do not foreclose the conclusion that
a search occurred here. New York v. Class, 475 U.S. 106, and Oliver v. United States, 466 U.S. 170, also do not support the Government’s position (pp. 4–12).
c. The Government’s alternative argument—that if the attachment and
use of the device was a search, it was a reasonable one—is forfeited
because it was not raised below (p. 12).
California v. Ciraola, 106 S.Ct. 1809, 1810 (1986)
The Santa Clara, California, police received an anonymous tip that
the defendant was growing marijuana in his backyard. The investigating
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officers were unable to look into the backyard from the ground because it was shielded by a 6-foot tall outer fence and a 10-foot tall inner fence. Agents obtained the services of a private plane and had the pilot fly over the defendant’s backyard at an altitude of 1000 feet. A fellow officer accompanied the agent on the flight; both were trained in the aerial identification of marijuana. Viewing the defendant’s backyard with their naked eyes, the officers identified a garden of marijuana plants. The officers subsequently obtained a search warrant on the basis of an affidavit that described the anonymous tip and their observations. The police seized 73 marijuana plants, each 8–10 feet tall, from the defendant’s backyard garden.
The defendant pleaded guilty to cultivating marijuana after the trial court denied his motion to suppress the evidence seized in the search. The California Court of Appeals reversed, holding that the aerial observation of the defendant’s fenced-in backyard constituted a warrantless search violating the sanctity of the defendant’s home. The California Supreme Court denied the state’s petition for review. On certiorari to the U.S. Supreme Court, the court reversed state appeals court decision.
The court held that naked-eye aerial observations of areas within
the curtilage do not constitute an unreasonable search under the Fourth
Amendment.
U.S. v. Dunn, 480 U.S. 294, 107 S.Ct. 1134 (1987)
In 1980, the DEA discovered that Carpenter had purchased large quanti-
ties of chemical and equipment used in the manufacture of amphetamine and phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing instal ation of tracking beepers in an electric hot plate stirrer, a drum of acetic anhydride, and a container holding phenylacetic acid (a precursor to phenylacetone). All of these had been ordered by Carpenter. Aerial photographs of the 198 acres ranch showed Carpenter’s truck backed up to a barn behind the ranch house. The ranch was completely encircled by a perimeter fence. The property also contained several interior fences and was located about one-half mile from a public road. A fence encircled the residence and a nearby smal greenhouse. Two barns were located approximately 50 yards from this fence.
The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked gates barred entry into the barn and netting material stretched from the ceiling to the top of the wooden gates.
Law enforcement officials made a warrantless entry onto respondent’s
ranch property. A DEA agent crossed over the perimeter fence and one
interior fence. Standing approximately midway between the residence
and the barns, the DEA agent smelled what he believed to be phenylacetic
acid, the odor coming from the direction of the barns. He approached
the smaller of the barns, crossing over a barbed wire fence and look-
ing into the barn observed only empty boxes. He then proceeded to the
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larger barn, crossing another barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under
the barns overhang to the locked wooden gates and, shining a flash-
light through the netting on top of the gates, peered into the barn. They observed illegal narcotics.
Later, a federal magistrate issued a warrant authorizing the search of the respondent’s ranch. DEA agents and state law enforcement seized chemicals and equipment discovered in a closet in the ranch house. Carpenter and
Dunn were convicted.
Procedure: The Court of Appeals reversed the conviction, concluding that the search warrant had been issued based on information obtained during
the officers’ unlawful warrantless entry onto respondent’s ranch property, and therefore, all evidence seized pursuant to the warrant should have been suppressed. They held that “the barn in question was within the cartilage of the residence and was within protective ambit of the Fourth Amendment.”
On remand, the Court of Appeals reinstated the original opinion by asserting that “upon studied reflection, we now conclude and hold that the barn was inside the protected curtilage.”
Holding: The U.S. Supreme Court held that this area was not within the curtilage of the home and is not granted Fourth Amendment protection.
Rule: The court held that there are four factors that need to be raised in order to resolve a question regarding cartilage:
1. The proximity of the area claimed to be the cartilage to the home
2. Whether the area is included within an enclosure surrounding the
home
3. The nature of the uses to which the area is put
4. Steps taken by the resident to protect the area from observation by
people passing by
The court further held that the record discloses that the barn was located 50 yards from the fence surrounding the house and 60 yards from the house itself. Also the barn did not lie within the area surrounding the house that was enclosed by a fence. Furthermore, the barn was not being used for intimate activities of the home. Lastly, the respondent did little to protect the barn area from observation by those standing in the open fields. The majority rejected the argument that the erection of fences on an open field, at least of the variety involved in those cases and in the present case, creates a constitutional y protected privacy interests. The term open fi
elds may include an unoccupied or underdeveloped area outside of the curtilage. Final y, the court held that there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields.
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Dow Chemical Co. v. U.S. , 106 S.Ct. 1819 (1986)
The Dow Chemical Company owned and operated a 2000 acre manu-
facturing facility in Midland, Michigan. The facility consisted of numerous enclosed buildings, with considerable outdoor manufacturing equipment
and piping conduits located between the buildings. At all times, Dow maintained elaborate security measures to prohibit ground-level public viewing of its facility and to safeguard its industrial privacy.
In September of 1977, the Environmental Protection Agency (EPA)
began an investigation of Dow’s Midland facility, focused on whether emissions from two coal-burning power plants violated federal air quality standards. The EPA made one on-site inspection and then requested and received schematic diagrams of the power houses from Dow. Dow denied the EPA’s
request for a second inspection upon learning that as part of the inspection, the EPA would be taking photographs of Dow’s layout and facility. The EPA responded by informing Dow that it would consider seeking a search warrant to gain entrance to the plant.
The EPA decided to obtain aerial photographs of Dow’s facility and
hired a private commercial aerial photography firm to take the photos at
particular altitudes, locations, and directions. The private firm made at least six passes over the plant the next day at altitudes of 12,000, 3000, and 1200 feet. Approximately 75 color photographs of various parts of the Dow plant were taken.
The U.S. Supreme Court held that the aerial surveillance was not a search within the meaning of the Four Amendment. The decision upheld the Sixth
Circuit’s ruling that overruled the district court’s ruling that the flyover was an illegal search because the EPA did not receive a search warrant or Dow’s permission to do so.
United States Code
Title 18 U.S.C. § 2512(1)(a):
(a) sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications; Indiana
The recording or acquiring of the contents of a telephonic or telegraphic communication by someone who is neither the sender nor the receiver is a
felony and can be the basis for civil liability as well ( I.C. §35-33.5-1-5).
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Civil liability may require the payment of actual damages, $100 per day
for each day of violation or $1000—whichever is greater—and punitive dam-
ages, court costs, and attorney fees ( I.C. §35-33.5-5-4).
The Indiana Supreme Court held that the Indiana Wiretap Act requires the state to prove the eavesdropper acted with intent ( State v. Lombardo, 738
N.E.2d 653 [Ind. 2000]).
The Indiana Court of Appeals held in 2007 that the interception and
recording of calls made by prisoners from a jail did not violate the Wiretap Act, since recipients of calls were informed prior to accepting collect calls that the calls might be recorded or monitored and the recipients pressed zero, accepting the calls and indicating their consent ( Edwards v. State, 862 N.E.2d 1254 [Ind. Ct. App. 2007]).
Ohio
It is not a crime to intercept a wire, oral, or electronic communication if the person recording is a party to the conversation, if one party has consented to taping, or if the conversation is not taped for the purpose of committing a criminal offense or tort ( Ohio Rev. Code Ann. § 2933.52). Under the statute, consent is not required to tape a nonelectronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication ( Ohio Rev. Code Ann. § 2933.51(b)) defines oral communication.
The Ohio Supreme Court has held that prisoners do not have a reason-
able expectation in their communications, for purposes of the wiretapping law ( State v. Robb, 723 N.E.2d 1019 [Ohio 2000]).
Cordless telephone conversations purposely picked up by a neighbor’s
baby monitor were considered oral communications accompanied by a reasonable expectation of privacy ( Ohio v. Bidinost, 644 N.E.2d 318 [Ohio 1994]).
Illegal interceptions are felonies and also carry potential civil liabil-
ity for the greater of actual damages, $200 per day of violation or $10,000, along with punitive damages, attorney fees, and litigation expenses. There is a 2-year statute of limitations to bring a civil action ( Ohio Rev. Code Ann.
§ 2933.65).
Ohio also has antivoyeurism law that prohibits surreptitiously invading a person’s privacy for sexual purposes ( Ohio Rev. Code Ann. §2907.08).
Michigan
Any person who willfully uses any device to overhear or record a conver-
sation without the consent of all parties is guilty of illegal eavesdropping, whether or not they were present for the conversation. Illegal eavesdropping can be punished as a felony carrying a jail term of up to 2 years and a fine of up to $2000 ( Mich. Comp. Laws § 750.539c).
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In addition, any individual who divulges information he/she knows,
or reasonably should know, was obtained through illegal eavesdropping is guilty of a felony punishable by imprisonment for up to 2 years and a fine of up to $2000 ( Mich. Comp. Laws § 750.539e). Civil liability for actual and punitive damages also are sanctioned ( Mich. Comp. Laws § 750.539h).
The eavesdropping statute has been interpreted by one court as apply-
ing only to situations in which a third party has intercepted a communication. This interpretation allows a participant in a conversation to record that conversation without the permission of other parties ( Sullivan v. Gray, 324
N.W.2d 58 [Mich. Ct. App. 1982]).
The state supreme court stated in a July 1999 ruling that a participant in a conversation “may not unilaterally nullify other participants’ expectations of privacy by secretly broadcasting the conversation” and that the overriding inquiry should be whether the parties “intended and reasonably expected
that the conversation was private.”
Therefore, it is likely that a recording party may not broadcast a recorded conversation without the consent of all parties ( Dickerson v. Raphael, 601
N.W.2d 108 [Mich. 1999]).
It is a felony to observe, photograph, or eavesdrop on a person in a private place without the person’s consent ( Mich. Comp. Laws § 750.539d). A private place is a place where one may reasonably expect to be safe from intrusion or surveillance, but not a place where the public has access ( Mich. Comp. Laws
§ 750.539a).
Additionally, the Court of Appeals of Michigan held in 2006 that
neither the secretary to a school district superintendent who allegedly
circulated a facsimile sent to the superintendent nor those who saw the
facsimile were liable under the state eavesdropping statute, since the
facsimile machine was not used to record or access the messages sent to
the superintendent ( Vol mar v. Laura, 2006 WL 1008995 [Mich. Ct. App.
2006] [Unreported]).
Illinois
In Illinois, an eavesdropping device cannot be used to record or overhear a conversation without the consent of all parties to the conversation ( 720
Il . Compiled Stat. Ann. 5/14-1, -2). An eavesdropping device is defined as anything used to hear or record a conversation, even if the conversation is conducted in person.
In addition, it is illegal to discl
ose information one knows or should
have known was obtained with an eavesdropping device. Violations of the
eavesdropping law are punishable as felonies, with first offenses catego-
rized as lesser felonies than subsequent offenses ( 720 Il . Compiled Stat.
Ann. 5/14-4). Civil liability for actual and punitive damages is authorized
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as well ( 720 Il . Compiled Stat. Ann. 5/14-6). However, not disclosing the contents of the illegally obtained communication is an affirmative defense to the charge.
Standard radio scanners are not eavesdropping devices, according to a
1990 decision from an intermediate appellate court ( Illinois v. Wilson, 554
N.E.2d 545 [Ill. App. Ct. 1990]). A camera is not an eavesdropping device ( Cassidy v. ABC, 377 N.E. 2d 126 [Ill. App. Ct. 1978]).
It is also illegal for any person to “videotape, photograph, or film another person without that person’s consent in a restroom, tanning bed or tanning salon, locker room, changing room or hotel bedroom,” or in their residence without their consent ( 720 Il . Compiled Stat. Ann. 5/26-4(a)).
The eavesdropping provisions do not prohibit private citizens from elec-
tronically recording the proceedings of any meeting subject to the Open
Meetings Act.
Under Illinois law, when communications with individuals acting as
agents or representatives of a company are taped in violation of the Illinois eavesdropping statute, claims under the eavesdropping statute belong to the company ( International Profit Associates, Inc., v. Paisola, 461 F.Supp.2d 672
[N.D. Ill. 2006]).
Emerging Technology and Intelligence
Intelligence requirements in the future will depend upon how society and
technology develops and what trends emerge. It is a symbiotic relationship—
intelligence analyzes technology for future trends and future trends in technology influence how intelligence is gathered in the future.
Eric Schmidt, executive chairman of Google, and Jared Cohen, director
of Google Ideas, write about the influence of future technology in their book, The New Digital Age: Reshaping the Future of People, Nations, and Business: And as adoption of these tools increases, so too will their speed and computing power. Moores Law, the rule of thumb in the technology industry, tells us that processor chips—the small circuit boards that form the backbone of every computing device—double in speed every eighteen months. That means