Can Government Secretly Tape Police Conducting Raids?

| by The Volokh Conspiracy

(Eugene Volokh)

No, says the district court in United States v. Wells, 2011 WL 2259748 (N.D. Okla. May 12, just posted on Westlaw). Here’s the situation: A Tulsa police officer is being investigated for supposedly stealing money and drugs. The FBI sets up a sting, in which an undercover officer plays a drug dealer. The officer and his colleagues show up to the motel room where the sting is happening, arrest the undercover officer, take him outside, get his consent to search the room, and then search it. In the meantime, they are videotaped and audiotaped searching the room. Their lawyers seek to exclude the videotapes, because the videotapes supposedly violated the officers’ Fourth Amendment rights.

The court doesn’t buy it. Even though guests sometimes have Fourth Amendment rights to be presumptively free of surveillance when they’re staying at a friend’s home — or in a motel — these weren’t ordinary guests:

Defendants obtained access to the room not as guests, but as law enforcement officers using the power of the state to obtain consent from the room’s occupant. Defendants cannot be considered guests, either social or commercial, of their target, the undercover officer. This is an important point under Supreme Court jurisprudence. When an individual claims an expectation of privacy in someone else’s residence, hotel room, or other premises, the Supreme Court has required that the individual demonstrate some type of societal recognition of the value of the individual’s privacy rights in that particular situation.

And beyond that,

[T]he ultimate question in any determination concerning the existence of a reasonable expectation of privacy involves a societal value judgment. This is inherent in the second prong of the expectation-of-privacy test, whether a particular expectation is one that society would accept as reasonable. There are many instances of courts refusing to recognize an expectation of privacy because to do so would contravene societal interests. See id. at 1004 (refusing to recognize an expectation of privacy in a storage shed that had been rented under a name obtained by identity theft, as that would in effect make the court a party to the fraud); see also United States v. Ward, 561 F.3d 414, 417–18 (5th Cir.2009) (escapee from prison had no reasonable expectation of privacy in his motel room; recognizing such an expectation would offer judicial encouragement to the act of escape); United States v. Caymen, 404 F.3d 1196, 1200-01 (9th Cir.2005) (defendant had no reasonable expectation of privacy in laptop he had fraudulently purchased using another’s financial information). The circumstances of this case are not such that a reasonable expectation of privacy should be recognized by society.

At oral argument and in subsequent briefing Defendants emphasized the fact that they had obtained exclusive dominion and control over the motel room, which is one factor discussed in expectation-of-privacy cases. However, the only reason Defendants were able to obtain such exclusive dominion and control was their status as law enforcement officers.

Defendants and/or other officers detained the undercover officer and kept him out of the room for a number of minutes after obtaining consent to search. Both the detention of the undercover officer outside the room, and the ability to obtain consent to search, were made possible only because Defendants and the other police officers were law enforcement officers carrying out the authority of the state.

It would be incongruous to allow police officers to use their authority to obtain exclusive control of someone else’s premises, and then allow them to be protected from governmental scrutiny, clandestine or otherwise, of their activities while they exercise such state-authority-derived exclusive control. Police officers are public officials and are thus expected to carry out their duties openly and subject to the reasonable scrutiny of the citizens they serve. [Footnote: Several courts have recognized that citizens have a First Amendment right to videotape officers who are performing their duties in a public location, as long as the citizen does not interfere in those duties. See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000); Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D.Pa.2005).] This should be especially true where, as here, the officers have divested a citizen of his rightful control over certain premises, in order to conduct their state-authorized activities.

Put another way, the purpose of the Fourth Amendment is to shield citizens from overreaching by government officials. If law enforcement officers are granted a reasonable expectation of privacy while they are carrying out searches of citizens’ property, and are thus not subject to surreptitious oversight, such overreaching would be encouraged, or at least protected. As a result, all manner of Fourth Amendment violations could be committed without repercussions for the law enforcement officers.

This case in fact is a good example. Defendants are accused of planning to steal money from a private citizen while they carried out a search of that citizen’s premises. No expectation of privacy should be recognized that would allow Defendants, or any other law enforcement officers, to carry out such alleged activities in secret. Instead, while exercising the authority granted them by the state to enter other persons’ premises, officers should expect to be monitored to ensure they use this great power in a manner that strictly comports with the requirements of the Fourth Amendment. In sum, the Court can conceive of no constitutional or societal interest that would be served by allowing Defendants to claim a reasonable expectation of privacy in the motel room rented by the undercover officer....