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Secret Home Surveillance Video Doesn't Violate Fourth Amendment

By Robyn Hagan Cain | Last updated on

A Ninth Circuit panel ruled on Tuesday that it's no big deal for an undercover agent to walk into a suspect's home with a hidden camera to record an illegal transaction, as long as the agent was invited.

The appellate court based its decision on the Supreme Court's 1966 Hoffa v. U.S. opinion, holding that the Fourth Amendment's protection does not extend to information that a person voluntarily exposes to a government agent, including an undercover agent.

U.S. Fish and Wildlife Service agents began an undercover investigation of Ricky Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero developed a rapport with Wahchumwah, claimed to have an interest in eagle feathers, and bought a set of eagle wings from him.

Later that year, Romero sent Wahchumwah a text message stating that he would be visiting family near Wahchumwah and would like to stop by Wahchumwah's home. Wahchumwah agreed.

Romero visited Wahchumwah in his residence wearing a concealed audio-video recording device. During the visit, Wahchumwah showed Romero a blue spiral notebook containing a number of eagle plumes. Wahchumwah also mentioned a previous eagle tail purchase during the visit.

In 2009, a team of Fish and Wildlife Service agents executed a search warrant on Wahchumwah's home and its outbuildings. Wahchumwah was arrested, and a jury ultimately convicted him of conspiracy, Bald and Golden Eagle Protection Act violations, and Lacey Act violations. Wahchumwah appealed.

In a Fourth Amendment challenge, the question is whether an individual has exhibited an actual expectation of privacy, and whether the individual's expectation of privacy is recognized as reasonable. The expectation of privacy does not extend to "what a person knowingly exposes to the public, even in his own home or office."

The Supreme Court says that a defendant generally has no privacy interest in that which he voluntarily reveals to a government agent. A government agent may also make an audio recording of a suspect's statements. Those audio recordings, made with the consent of the government agent, do not require a warrant.

Wahchumwah lost his challenge, but the Electronic Frontier Foundation (EFF) says that the Ninth Circuit got it wrong.

In Theofel v. Farey-Jones, the Ninth Circuit held that a person's consent to a trespass is ineffective if he is "mistaken as to the nature and quality of the invasion intended." The EFF explains, "What that means here is that when the undercover agent concealed his identity and purpose, making Wahchumwah 'mistaken as to the nature and quality' of the home visit, the government trespassed onto Wahchumwah's property. Since that trespass was done for the purpose of obtaining information -- to get evidence of bald and gold eagle feather and pelt sales -- the government 'searched' Wahchumwah's home. And it needed a warrant to do that."

Based on the concurring justices' skepticism about technological invasions of privacy in last term's U.S. v. Jones, we'd like to see the Supreme Court's take on this case.

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