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DOJ Won't Pursue Appeal in WebCam on a Pole Surveillance Case

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By Casey C. Sullivan, Esq. on May 14, 2015 10:54 AM

The Department of Justice has withdrawn its appeal of a district court ruling that excluded evidence gathered by a webcam nailed to a utility pole across the street from a suspected drug dealer's house. After the district court for the Eastern District of Washington found that the surveillance violated the defendant's constitutional right to privacy, prosecutors appealed.

The DOJ had argued in earlier filings that "the webcam on a pole" surveillance was legal, since it was similar to an officer's observations on the street. Call it the "bootleg Robocop" theory of surveillance. They may no longer stand by that contention, however, having abandoned their appeal in a brief filing with the Ninth Circuit yesterday.

Just A Modern Day Stakeout?

In December, Leonel Vargas won his motion to suppress evidence gathered from the webcam. The Kennewick man -- Vargas, not the famous, ancient skeleton -- had been charged with drug, immigration and weapons related crimes. In their investigation, government officers attached the webcam to a utility pole outside his house, using off site computers to zoom in, pan and record.

The officers never obtained a warrant for the surveillance. They argued that the monitoring of Vargas's house was similar to an in-person "plain view" or "open field" observations. Those observations, such as when an officer glances from the sidewalk into one's yard or through a window, do not require warrants. The district court disagreed, however, finding that the hidden, continuous, remote surveillance violated Vargas' Fourth Amendment rights and was illegal without a warrant.

Not Yet the End of CCTV

The DOJ has now dropped its appeal from that ruling. The department has not explained the reasoning behind that withdrawal, however. It would be premature to assume that they have abandoned the view that such warrantless surveillance is constitutional or are ready to stop using webcams on poles.

Similarly, the end of the appeal does not mean that evidence from similar warrantless public surveillance will be inadmissible in future cases. While the district court found that Vargas had a reasonable expectation of privacy in his front yard, the decision emphasized the rural, isolated location of the home. The same reasoning may not be applicable, for example, to a stoop in Brooklyn or even a suburban home.

For now, however, the district court's ruling will stand as good law, at least in Eastern Washington.

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