By Tamara Bogosian.
Best Best & Krieger LLP.
The world of law enforcement is changing rapidly. In the last few years, technology has advanced by leaps and bounds altering the way police officers do just about everything. New technology being used in law enforcement includes body worn cameras, dashboard cameras, drones, smartphones, automated license plate readers and handheld radar devices.
Officials say these types of tools are critical to keeping officers safe while allowing them to do their job. Privacy advocates and judges have nonetheless expressed concern about the circumstances in which law enforcement agencies may be using the new technology— and the fact that they have done so with limited public scrutiny.
What have the courts ruled already? Here’s what we know so far.
Handheld radar devices require a search warrant. These devices use radio waves to zero in on movements as slight as human breathing from a distance of more than 50 feet. They can detect whether anyone is inside of a house, where they are and whether they are moving. Certainly, such information could be vital to the protection of police officers who are executing search warrants. But, the Constitution accords people a reasonable expectation of privacy in their homes, and a device that can “see” through walls fits the definition of the type of search that is protected by the Fourth Amendment.
There have been no legal challenges, yet, to body worn cameras under the theory they violate the Fourth Amendment or other privacy laws. California law requires the consent of both parties to a recording of confidential communication, either in person or electronically. Penal Code sections 631 and 632 criminalizes the state’s prohibition on unauthorized wiretapping, eavesdropping and recording. However, officers are exempt from these prohibitions. Courts have ruled that if a police officer is lawfully in a home or other private place in the course of his or her official duties, then any audio or video recording does not a violate a person’s Fourth Amendment right against unreasonable search and seizure.
Cell phone searches require a search warrant. Digital content of cell phones do not fall within the search-incident-to-arrest exception of the Fourth Amendment. In two recent Supreme Court cases (Riley v. California and United States v. Wurie), the court made it abundantly clear that a peace officer cannot search an arrestee’s cell phone without first obtaining a warrant. Historically, officers were permitted to conduct a search “incident to arrest” to protect officers’ safety and preserve evidence. However, the Electronic Frontier Foundation and the Center for Democracy & Technology, among other interested parties to the action, argued that once a cell phone is seized, the police need a search warrant to search the data on the phone. In June 2014, the Supreme Court unanimously ruled that the search-incident-to-arrest exception does not extend to a cell phone and that police must first obtain a search warrant prior to searching an arrestee’s phone.
When it comes to license plate readers, a court ruling found that a law enforcement agency can withhold LPR records under the investigatory record exemption found in the California Public Records Act.
Attaching a GPS device to a vehicle constitutes a search under the Fourth Amendment. If law enforcement officers place a GPS tracker on an individual, a vehicle or any personal item, it constitutes as a search— and is therefore protected by the Fourth Amendment.
Current federal case law allows warrantless observation of property by drones if they are in publicly navigable airspace. The increasing domestic use of drones and the Federal Aviation Administration’s efforts to develop regulations to integrate them into national airspace implicates sensitive constitutional privacy issues. In response, several states are enacting, or have recently enacted, statutes that regulate drone use.
When it comes to using these technological devices, it is important to keep in mind that, unless policies, procedures and protections are put into place preserving the confidentiality of audio recordings and video images of police officers’ contact with the public, these items can, and will, end up on the Internet. What have the courts said about releasing video recordings captured by police? What is the law when it comes to how the video is captured and released? The answers to these questions are discussed in a video presentation recently given at the University of Southern California Price School of Public Policy’s Executive Education Forum for Policy and Administration. Click here to view.
Tamara Bogosian is an of counsel attorney at Best Best & Krieger LLP in the firm’s Irvine office, where she is a member of the public safety group. A former county prosecutor and supervising deputy city attorney, Bogosian represents public agencies in litigation involving civil rights, police liability, code enforcement and other law enforcement matters. She can be reached at Tamara.Bogosian@bbklaw.com.