DEA within rights to engage in surveillance sans warrant

By Richard A. Ries
Guest Columnist, Central Florida Future
Published: Sunday, January 27, 2013
Updated: Wednesday, January 30, 2013 10:01

A surveillance case from northern Wisconsin has caused some ripples of interest on the Internet. The Magana family had a farm that was apparently harvesting something a little more lucrative than corn, wheat or soybeans. Deep inside the woods, and surrounded by signs that read, “No Trespassing,” the Maganas grew a sizable amount of marijuana.
Evidence of the activity came about from surveillance cameras installed surreptitiously on the land by the Drug Enforcement Agency. The DEA sought no warrant to install the cameras; they only sought one after reviewing footage of the film. Since the properties were heavily wooded and posted with signs, the owners were entitled to an expectation of privacy, the Magana’s attorneys said.

No one disputes that marijuana was grown. What is at stake is whether evidence procured in such a manner is legal. Visions of federal agents walking over no trespassing signs and installing cameras can seem harrowing and evocative of an Orwellian Thought Police, so let’s try to understand why the courts — including the Supreme Court — will likely side with the DEA.

The case is about expectations of privacy as citizens. We have learned in the 21st century that we shouldn’t reasonably expect too much privacy on the Internet. We know that our digital footprints are easily tracked, that texts are stored in servers and that our cellphone calls are logged.

We have also learned not to expect too much privacy outside. A great deal of our driving is caught on videotape, not only at red lights and toll booths, but increasingly on highways. Some high schools have cameras in hallways and cafeterias. Now there is much talk of implementing them in classrooms as well, with Indiana University beginning to film some final exams to prevent cheating.

What right to privacy did the Maganas genuinely expect when they chose to grow pot in a field? Does merely posting a no trespassing sign free us up to engage in illegal activity? It is easy to think that “my property is mine to do with as I please.” The Internet outrage has more to do with senses of personal liberty many feel about growing or smoking marijuana — and less to do with an understanding of property rights. Land ownership is not absolute. There is no magic shield that protects you from zero surveillance on a large tract of land.

The Fourth Amendment is a check against abuse of power. It guarantees that citizens are protected against unreasonable search and seizure. The Founding Fathers certainly lived in an agrarian nation and knew that individuals often owned large farms and estates, but extended no right to privacy in such open spaces. An important Supreme Court case, U.S. v. Oliver (1984) established an “open fields” doctrine, which established that police entering private property does not create a police state.

In other words, a field being filmed is not the same as getting randomly frisked or a police officer rummaging through your refrigerator without a warrant.

While it is understandable for libertarians or legalization of marijuana proponents to be outraged about the DEA’s actions, we have to again return to a term that guides the philosophy of many of our laws: reasonableness. It would be more than unreasonable if the DEA (or any law enforcement agency) secretly installed a camera inside of a house, particularly a bathroom or a bedroom. The cameras that were installed on the Magana’s property were not done so randomly but occurred because of a reasonable tip from a logger. They were not spied on in an unreasonable manner, particularly when an airplane or satellite photo could easily demonstrate that marijuana was being grown.
While it is too sweeping to embrace Mark Zuckerberg’s maxim that “privacy is dead,” we should expect it to be protected in the four hemispheres the Constitution guarantees it: in our homes, on our bodies, in our papers and in our effects.

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