"The Supreme Court has upheld the use of technology as a substitute for ordinary police surveillance," -Magistrate CallahanThere are actually two separate arguments to be made here. The first, is the Constitutional matter of the Fourth Amendment. The second would be to ask if the police have the right to vilate the law in order to enforce the law, which we will discuss below in a few moments.
Were the judge's wrong in stating that the rights of the defendant's had not been violated?
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." -4th AmendmentDebatable, but the Amendment does not specify property, other than to say "effects" which is also defined as moveable property. Land is not moveable (though it is transferable.) This interpretation is more than likely they basis of a 1984 Supreme Court case called Oliver v. United States, in which a majority of the justices said that "open fields" could be searched without warrants because they're not covered by the Fourth Amendment.
On the other hand, the word "houses" can be interpreted to include land in the common area immediately surrounding a home, any enclosed area of property adjoining a habitated building, and so forth. This is referred to as curtilage.
The word house is defined as: A structure serving as a dwelling for one or more persons, especially for a family.
In other words, once a fence is put up, the land could certainly be considered as part of the structure of the house and no longer an "open field." Again, in this particular case, the property was protected by a locked gate and signs notifying potential transgressors that they would be guilty of trespassing, should they cross the marked boundary.
So now we see that this land could indeed fall under the purview of the Fourth Amendment, through the word "house" if the enclosed property is a part of the dwelling of the property owner. Other examples might include your enclosed porch, a garage, a carport, a barn, and so forth.
Breaking the Law to Enforce It: Undercover Police Participation in Crime
However, in these cases, the breaking of the law is given special permission by operational commanders and may be specified by a court in individual cases or through "affirmative defense" clauses written in at the time a law is adopted. Statutory protections for law-enforcement are in place for run-of-the-mill police work, such as when a police officer makes a drug-buy from a criminal, and the drugs are turned over immediately as evidence, rather than taken home by the officer for personal use.Deception is permissible and cannot itself be said to be a violation of law.
Other more questionable but often approved activity might be deemed as necessary as part of peripheral concerns in an ongoing operation. An example of this might be when a narcotics officer operating in an undercover capacity is forced to ingest narcotics in order to maintain operational integrity and even his own personal safety.
While arguments could be made for or against these sanctioned violations of law by government agents, one place where we should certainly draw the line is when evidence is obtained through a direct violation of law. An extreme example of this might be to have a police officer carry out a killing at the behest of a mafia boss, in order to bring a murder-by-proxy charge against that mafia boss. Another example might be that a police officer can't buy a joint from a drug dealer, smoke it, and then arrest the drug dealer for selling him the joint. Yet nother example might be in a case where a police officer assaults a person in order to glean information. It is not and should not be allowed.
In essence, that is what we have here in this case though. Even if the defendants' Fourth Amendment rights were not violated the police still committed a criminal act against the property owner, in order to gather their information, and said information is a direct result of that violation. This is an important distinction. The police did not just violate a law, like maybe smoking a joint in order to get more information, they committed an act directly against the law in place to protect a citizen property owner.
If the police surveillance had been done from outside of the property and looking in, there might still be grounds for a Fourth Amendment defense. Do police need a warrant to use a telephoto lens to peer into the windows of your home? Do police need a warrant to fly overhead and take a heat-signature snapshot of your home and it's contents? Maybe, maybe not. Such evidence might be allowed or thrown out on a case by case basis.
But in this instance, we are talking about government agents actually breaking the law, not simply pushing back the boundaries of their legal purview to conduct a search. They did indeed knowingly pass onto private property. That is a violation of trespass law. The violation is elevated to a criminal trespass because the property was fenced. In some states, trespassing while armed is a felony, and it is more than likely that they were carrying firearms. The property owner might also be able to show that the placement of the surveillance equipment did damage to his property, which would constitute an additional charge of criminal mischief. Often too, each of these charges may be elevated when each act is committed while in the commission of another crime. In other words, their violation of law is no small thing, and if you as a civilian were to commit such an act, you would likely spend years in prison and be sued for extensive civil liability as well.
All in all, there is one final question you should ask yourself. Why should police and government agents have this power? Why didn't they just go get a warrant in the first place? The simple but scary answer is because the government is now setting the precedent that your private property is no longer private. That with or without cause, they can come onto your property and do whatever they want. Sounds like Communism to me, not the America I was raised to believe in.
How do you define police-state?
Court OKs warrantless use of hidden surveillance cameras- In latest case to test how technological developments alter Americans' privacy, federal court sides with Justice Department on police use of concealed surveillance cameras on private property.