Can the DEA Hide a Surveillance Camera on Your Land? [FEATURE]

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

A case that began with reports of suspicious activity in northeast Wisconsin forest land last spring may be headed for the US Supreme Court. That's because a US district court judge ruled in the case last fall that it was okay for the DEA to enter the rural property without a warrant and install surveillance cameras that were used to help convict five members of a family on charges they were growing marijuana.

http://stopthedrugwar.org/files/dea-camera.jpg
surveillance camera (shutterstock.com)
The ruling last October came in a motion to suppress the evidence obtained by the warrantless video cameras. After that ruling, the defendants, five members of the Magana family, pleaded guilty to possession with intent to distribute marijuana and now face up to life in prison and up to $10 million in fines. But as part of the plea deal, they retained their right to appeal the ruling.

And their attorneys say they are prepared to take the case all the way to the US Supreme Court.

In their motion, they had asked the court to suppress evidence because of the property's locked gate and "No Trespassing" sign. Since the properties were heavily wooded and posted with signs, the owners were entitled to an expectation of privacy, the attorneys say.

"After sentencing, the first round of appeals will go to the Seventh Circuit and if there's no favorable ruling there, the cases will be filed into the US Supreme Court," Wisconsin attorney Stephen Richards told the Chronicle last week.

"That one's action could be recorded on their own property even if the property is not within the curtilage is contrary to society's concept of privacy," said Green Bay attorney Breet Reetz, who represents Marco Magana.

Curtilage is a term of legal art referring to the area of a property immediately surrounding a house or dwelling. Past Supreme Court jurisprudence, particularly US v. Oliver, had held under the "open fields" doctrine that areas outside the curtilage are not subject to the same Fourth Amendment protection as a home itself. "An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home…," the court held in Oliver. (Perhaps not coincidentally, Oliver was another marijuana cultivation case, in which Kentucky deputies walked a mile onto the property before spotting a marijuana field. Their search was upheld.)

It all began in rural Marinette County last May, when a fishermen reported to local authorities that he had been run off the land by two men who told him "fishing is closed" and that he had observed trees cut down and power lines running across the property. Authorities investigated and found the property and two more adjacent properties were owned by members of the Magana family, which had purchased them months earlier.

Authorities left it at that until the following month, when a logger reported that when he had gone to check on a timber stand at one of the properties, he stumbled over a marijuana cultivation operation with more than 30 plants in a 50' x 50' clearing. The DEA then was called in and entered the Magana's properties without a warrant. Agents installed video cameras that eventually captured incriminating evidence of vehicles traveling in and out of the properties.

It wasn't until the DEA observed some of the men handling what believed to be marijuana did they go and request a warrant. A warrant was signed and the agents, accompanied by several local sheriff officers, executed the warrant and arrested the men at separate addresses near Green Bay.

The bust was big news in Marinette County.

"You've got thousands of plants, and as healthy as they look, this is a big operation," Sheriff Jerry Suave told local reporters at the time. The grow is probably "the largest I've seen," he added.

Before trial, set for the fall, counsel for the Maganas filed a motion to suppress the evidence, informing the court that videos from the surveillance camera showed dates that indicated that the camera had been running for 79 consecutive hours before DEA agent Steven Curran obtained a search warrant for the property.

"It is undisputed that the government trespassed without a warrant upon private property with visible 'No Trespassing' signs" posted," Reetz wrote in the motion, noting that the camera had operated from July 12 to July 15, but the warrant wasn't issued until July 17. Nor were there any "exigent circumstances" that would have allowed officers to enter the property without a warrant.

Federal prosecutors were ready with a response.

"Officers entering an 'open field' is not an area enumerated as protected under the Fourth Amendment," countered Assistant US Attorney for Eastern Wisconsin James Santelle. "'Open fields,' woods, and private lands are not 'persons, houses, papers, and effects' protected under the Constitution."

That was good enough for Eastern Wisconsin US District Court Chief Judge William Griesbach, who dismissed the defense motion and ruled that it was legal for the DEA to go onto private property without a warrant to install multiple covert digital cameras, and to use the evidence they obtain that way to obtains warrants and in court. Citing US v. Oliver, Griesbach held that the rural properties were curtilage and not protected by the Fourth Amendment.

But the Maganas' attorneys and other legal experts argue that even though "open fields" are not considered curtilage, if "No Trespassing" or "Private Property" signs are posted on the land, the property owner should still be entitled to an expectation of privacy under the law. And they are willing to take their argument to the highest court in the land.

"We have become a nation of men and not a nation of laws, which, is what our founding fathers didn't want us to become," Reetz said.

After formal sentencing, the case heads for the US 7th Circuit Court of Appeals. If Reetz and Richards don't prevail there, it is on to the Supreme Court. If the court were to take up the case, it would once again have the opportunity to try to untangle the dilemmas that result when the Fourth Amendment runs up against new technologies, for better or worse.

Green Bay, WI
United States
Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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They did that on my property

They did that on my property for ten years.  When they could not find a crime, they manufactured crimes, manufactured the illusion of crimes; all to steal the property so that they could make a profit. Scandalous, it has reached the White house.

THEY TRESPASSED IN NIGHTTIME TO STEAL ITEMS FROM BACKYARD AND

then they wrote up their report to state that they discovered the items in my trash that had been placed outside at the curb so that the charges would stick. it's shameful what they do to arrest individuals in drug crimes. they break the law in order to wrongfully arrest otherwise innocent individuals. i ended up accepting 6yrs suspended after 3yrs prison and 3 years probation or else i would've gotten like 9-12yrs if i had lost trial fighting it all the way. they basically committed burglary during torrential downpours in the cover of darkness then falsified their reports to nail me for sure.

unacceptable.      it almost ruined my life.    it has taken me over 3 years to even come to terms with it all and keep from going crazy over it.

YOU WONT BELIEVE OR UNDERSTAND WHAT THEY DO UNTIL IT HAPPENS TO YOU!!!!

After all, I went to Switzerlands, and now teaching football for their national team in the world cup!!! Switzerland's football national team, known as the Schweizer Nati (Germany), La Nati (France) squad is led by Switzerland Football Association (SFV-ASF). Timnas swiss piala dunia 2014 best performance in the World Cup that never reached the quarterfinals three times, in 1934, 1938 and when the country hosted in 1954.

Sorry to hear what happened

Sorry to hear what happened to you.  Even if it's too late to help with your past prison time, let me say I was impressed with Marc Emery's account of how he has adjusted to the bad times by learning bass guitar (which he hadn't tried before) and playing in a band, right in prison (see the Cannabis Culture website).  Maybe you have a rebound story you can share (it "almost" ruined your life, meaning not quite?).  Cannabis users can and must demonstrate to the bigoted and the ignorant that they are superior learners/survivors.

Sad but true

The justice system has become a law unto themselves,This power they have needs to be taken away, there are many cases where it has been proven police plant evidence so the onus must be on the police to prove beyond doubt that someone has committed a crime, they need to lose all of the powers they have to arrest innocent people and they need to have a written court order for every time they start investigating anyone for a crime, if evidence is not in a victims hands then the DOJ can not use it.

 

There are just too many cases like yours where innocent people have accepted plea bargains because they fear having to spend much longer in jail, it is not acceptable and gives DOJ too much power, one thing that would resolve this is that there is no more plea bargaining unless a judge is involved and accepts the bargain, and even then if the defendant  still claims he is innocent that must be taken into account when the court case is heard and evidence is produced, all evidence must be suspect.

Scooter's picture

I Understand More Than I Wish

I, too, had my rights violated. The police falsified reports and did all the evil, nazi-like things you never think would happen, let alone to you. It scarred me and my family for life, and changed how all of us see the United States. I now live with video cameras constantly, and some are even hidden so they cannot be tampered with. This offers me the only security that can protect anyone in this day, and they are attempting to ban us from using video cameras now. Afraid? You bet I am. And with good reason. They can destroy you with little effort.

Interested

I'm quite interested in your case. Is it written up in detail anywhere? I may know of it, as I have been readinf about BS asset forfeiture.  -Mike

I don't see how they couldn't

I don't see how they couldn't have got a warrant to walk the property, than they could have got a warrant to post the surveillance camera. Otherwise, this sounds like BS to me since a private citizen couldn't even walk onto the property without fear of trespassing charges. Private citizens have way more "leeway" with respect to invasion of privacy rights. These people sound dumb any ways since they probably knew their properties had traffic- why grow by where known logging occurs? Also, why not post their own motion activated surveillance systems.

The 4th Amendment says no

The law uses some twisted ideology to include new technologies. A search is a search is a search.  if you use your eyes to look it's a search. It doesn't matter what's between them an the place searched. It's still a search.

 A drug test is a search, paragliders,airplanes ,balloons,eyeglasses,optical lenses,cameras, microscopes,binoculars,magnifying glasses,infrared-thermal imaging,photographs,film, opening a door ,looking through a window from 250 yards or 5 feet, forensics, fingerprints,license checks,stepping over property lines,driving by and looking ,phone taps,cell phone pinging, auto tracking are all searches.

Each of these is a "look" to see. Surveillance is technically illegal under the original intent of the Constitution. The police are supposed to witness a crime to even approach you. We have been duped by 70s and 80s cop shows showing invasion of the privacy of the known guilty. We have come to accept cops watching us and waiting or collecting evidence of a crime first. All illegal. Read it for yourself.

You know you are talking to the Devil when,

He talks out of both sides of his mouth. They went on the land to set up cameras to get a warrant to be on the land? That's what I'm reading and that was accepted and used to legally convict. That's talking out of both sides. That's freedom for the gov't to come and go as they please. That's not 4th amendment protection. The idea that they can drive ,walk or fly for miles beyond your property lines until they get to your lawn before they are violating you is just absurd.

The idea is that they are violating you if they search your pockets during a drug test but, not by taking a cup full of DNA? Washington and all of their laws are starting to come out both sides. It's your body if you want to violate the unborn child you irresponsibly brought into the world but, it's not your body to medicate if , you have a disease in which you had no responsibility.

Can you hear the wisdom that controls you? Does it sound wise?

Scary...

I almost hope this doesn't go to the US Supreme Court for this particular trial.. because of the stigma of marijuana.. even if public opinion has changed... probably the opinion of the Supreme Court, all of them probably old men and women of the generation that helped start and escalate the drug war.. they're likely to rule for the state just out of spite.. but this action is a terrible breach on due process and needs to be shut down...

Continued...

I wonder if things will ever change. Is the new judge going to be like the old judge for personal gain and advancement?

Counter-Surveillance in a Police State

Had the growers set up their own secret, closed circuit surveillance cameras, they would’ve detected the police intrusions on their property and probably relocated.  Camera signal detection equipment can be purchased at many spy shops.  A new mindset of ‘spy versus spy’ is emerging as people take their own security and fears of a police state into account.  In this case, technical problems often have technical solutions.

Expecting the J. Edgars to obey surveillance laws and privacy rights isn’t going to work in modern America.  What’s being complained about in this case was done openly by the police, whereas before it might have been done secretly, with trumped-up claims allegedly made by unrevealed informants. 

The surveillance authority in this matter certainly deserves to be bludgeoned to death.  Without a warrant, the police were technically trespassing on posted, private land.  The drug exception to the Constitution remains.  The Supreme Court will probably act as little more than the corporatist tool it usually is.  Stopping police invasions of this type is ultimately going to require an end to prohibition. 

True

One of the reasons that people are coming up with new and better methods to hide their activity on line is because of the law overreaching in so many cases, take MEGA the new file saving site. If the DOJ had not illegally gone after and closed a business down that was abiding by the law to the best of their ability there would not be a situation where even criminals can get away with hiding their illegal activities on line. And with technology and the wider online population their are technologies becoming available that hide all your activity online.

 

The problem is that these technologies are in retaliation to illegal seizures and this is the fault of the DOJ, all anonymous software developed from now on can be laid at their doors for their breaking of the laws of privacy online that everyone expects and demands.

 

If they had gone the route of getting warrants where needed and not attacking innocent people then they would not be in a position now where any evidence is locked up and not available to them even with a court order.

Anti-cannabis-grow invasions are pro-tobacco, period.

Never forget, though it is true that the Blaw Enforcement officers are out after Confiscation booty etc., the main driving force remains the Big Money power of Big 2WackGo-- (a)  R. J. Reynolds website brags that $igarette taxes provide $44.5-bil. to fed/state/county/muni taxing authorities, and (b) government obligingly reciprocates by spending (NORML-estimated) $20 billion on anti-cannabis drug war. 

Destruction of cannabis plantations is designed to increase the PRICE DIFFERENTIAL between cannabis and $igarette tobacco, influencing the "choice" exercised by youngsters in tough urban schools where you have to smoke something to be kool... $200/ounce for real herb, or under $20 for two packs (28 grams) of lifetimeaddictive niggotine??   $igarette corporations see themselves as slave-owners (work your ass off for $20k a year and spend $3k of it on coffinjoes) and that includes POTENTIAL "addict property" they have any chance of roping in by closing off the cannabis substitution option.

hmmmm hardy har har

ok if they have the right to come into my yard without a warrant and plant spying equipment which violates my rights, then I say its high time we work to disband the DEA. DEA go away

DEA and No Trespassing Sign

You know What there are some cops that would of hidden the camera so u would not know. They got off easier than some people. There are uncovered cops that would kill you, destroy your life, and tell no one.

In Florida, if the cops

In Florida, if the cops suspect a grow house, they will stage a pursuit of a suspect that happens to pass across the property. That gives the the right to search
Scooter's picture

Sure They Can.

They can if they want a destroyed piece of equipment. My property=my property. If it's on my property, then it is my property. My property to do with as I see fit...

Scooter's picture

George Orwells Prophecy Bears Fruit Again

How can there be justification of entering private property and conducting illegal surveillance, then obtaining a warrant. This was obviously the only way they could legitimize anything, but it would be too little too late in the eyes of the Law of the Land. Yet again, the Federal government makes up its' own definitions as it sees fit, and the Vote of The People be damned. So, private property only extends as far as your personal abode? Then of what use are property lines? To restrict the Public, but not the Powers That Be? Again, a terrifyingly Orwellian thought becomes reality.

As long as you pay property

As long as you pay property taxes TO the federal government,YOU do not own the property. Despite being called a 'property owner', our inalienable rights to 'own' our land has been taken away from us by our own government,and WE allowed it. Why? Because the govt uses property taxes to fund 'needed' services such as 911,EMS and other necessary services that people demand. The govt didn't simply decide to pay these services with property taxes,this was intentionally designed with only 1 purpose. The USG has always wanted ALL of America's land,but our inalienable constitutional rights to own land is what held them back. However,if they could only get people to 'voluntarily' sacrifice their rights to actually own the land....and THAT is how property taxes came to fund those EMS and police services. Most people tell me that they'll gladly pay property taxes,never owning the land their investment sits on as long as there's police and EMS services.

Our government has changed the rules now and out constitution is mostly nullified now thanks to the so-called Patriot Act,the 'war on terrorism' and the 2012 NDAA. America has traded our freedoms for 'security', and what we got was a Nazi police state nation. Cameras and mics everywhere,on our cars,homes,in the skies and other places,even our so called Smart meters are surveillance devices. So, yes,our govt CAN put cameras on your property because,in all reality,it's THEIR property that WE rent from them via property tax.

 

People who trade liberties and freedoms for security,deserve neither.

Unbelievable but I do know of

Unbelievable but I do know of a couple cases where this has happened! A close friend who moved into a not so nice part of town had this happen to him, it's about time this was exposed!

Tom

My point is that just because

My point is that just because pot is illegal in most places does not mean that people don't do stupid stuff while high, likewise just because a substance is legal (alcohol) does not mean it is OK to operate a forklift drunk. So the classification of pot as legal or illegal is irrelevant to operating a forklift Mary J.

I think that is an invasion

I think that is an invasion of one's privacy. That's too much already. I would never allow that in my property

 

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