Let's say the police come into your house with a search warrant. By now you know from my previous posts that the Fourth Amendment says a warrant must "particularly" describe the place to be searched and the items to be seized. You read the warrant and, sure enough, it contains a very specific list of things the police are looking for.
As the police go about their business, you see one of them is videotaping your entire house. You didn't see anything in the warrant about them being free to film the interior of your home. Can they do that?
As you can surmise from the TV news or YouTube videos, more and more police departments and sheriff's offices are outfitting their officers and deputies with body cameras. Law enforcement dash cam videos have been around for years and are also becoming more commonplace .
The law is pretty well-developed in this area, starting with the First Amendment. As long as the police are where they are allowed to be, they can generally record anything they can see or hear.
Here's the flip side. That same privilege applies to you!
As long as you are where you have a legal right to be and are not obstructing or delaying an officer in the performance of his/her duties, you can video and audio tape their activities. It doesn't make any difference what your reasons may be -- giving it to the local TV station, posting it on YouTube, using it for a class presentation, or selling it to TMZ.
As much as they might not like it, the police are becoming use to being filmed by regular citizens. They also have a job to do and have wide latitude in establishing a perimeter around crime scenes to protect evidence and allow detectives to work unhindered. They also are the ones who get to decide, at least at that moment, what constitutes "obstructing and delaying" them. If they tell you to back up, just do it. If they have to tell you more than once, you might find yourself handcuffed in the back of a police car.
The police cannot decide that the images or sounds you recorded are now "evidence" and take your phone, camera, or tape recorder away from you. That would be an unconstitutional seizure in violation of your Fourth Amendment rights.
New laws that went into effect on New Year's Day this year prohibit California law enforcement officers from detaining or arresting a person merely because s/he is taking a photograph or making an audio or video recording of an officer when s/he “is in a place he or she has a right to be.”
Use the Comment box if you have further questions about this subject or any of my previous blog posts.
In my prior blog entry about the No Trespassing signs not being a deterrent to police attempts to obtain consent to conduct a warrantless search, the appellate court used the terms "curtilage" and "open fields." I promised to explain those legal concepts in more depth and here it is.
Have you ever seen someone get too close to another person and Person 2 tells Person 1, "Hey, you're in my space!"?
In our culture, we all protect a certain "privacy zone" around our bodies. We'll make temporary exceptions for it on a crowded trolley, in a packed elevator, or during a mass exodus from a theater or stadium. The rest of the time we pretty much feel the area out to about arm's length is our "bubble" as we move about that others shouldn't invade it without some reason or excuse.
Naturally, we allow loved ones or others we trust inside our space without any problem. Think about it. If you saw a man and woman you didn't know standing within each other's "space," you would assume, probably correctly, that they were in some kind of very familiar maybe even intimate relationship.
Well, we have that same kind of "privacy zone" around our residences. It is even recognized by the law. Legally, this area is called the curtilage.
You're might be wondering, how big is the curtilage?
Like a lot of things in the law, there is no "fixed" standard. For one thing, it will depend on the type of residence. Are we talking about a single, detached dwelling or an apartment or a condo in a complex? Obviously, the former will have a larger curtilage than the latter.
Maybe that doesn't seem fair but the Fourth Amendment is all about reasonableness. It is reasonable that people in a detached dwelling would have a greater expectation of privacy than someone living in a multi-dwelling structure.
One thing they both share, however, is an expectation of privacy outside their windows. Anyone in the "Peeping Tom" zone outside a residence is certainly inside the curtilage.
Note, however, I said outside the windows. Unless you have built a fenced-in security "cage" around your front porch, the front walkway and the front door step are not inside the curtilage. Why is that? Because most people allow the letter carrier, the UPS driver, Girl Scout cookie sellers, and Halloween trick-or-treaters to come up to the front door without challenge.
Does your front door have a window in it? If you want to protect your privacy, you should cover that window, especially at night when inside lights are on.
Using the single, detached dwelling as an example, is their entire property within their curtilage. Probably not. Unless homeowners have taken steps to physically extend their curtilage, the normal curtilage probably extends only several feet around the house. Any property beyond that would be considered "open fields."
In modern America where the majority of the populace lives in urban or suburban areas, a term like "open fields" automatically conjures up images of Old McDonald and corn fields, or maybe pheasant hunting and bird dogs. Not so. Under the law, open fields are simply a person's real estate, whether owned, leased, or rented, outside the curtilage about the residence.
What about a fence? Would that extend someone's curtilage to the limits of their property? It depends on the fence. A short fence intended to keep a toddler or a dog in the yard but which any adult could step or leap over likely does not extend the curtilage to the fence line. A tall, chain link fence may deter trespassers but any fence that passers-by can see through, including the weathered wood fence whose boards have shrunk or have developed some knot holes, hardly qualifies as making the yard "private." Except for that zone around the house, the rest of it is just a fenced-in "open field."
No, the only "fence" for which an argument could be made that the curtilage extends to the fence line would be a solid brick or stone wall.
Why does the law even care about curtilage and open fields? Because it impacts your Fourth Amendment right to be safe from unreasonable governmental (i.e., police) searches?
Even though the police may be permitted to trespass in your "open fields" regardless of any No Trespassing signs, they are not allowed to violate the curtilage to examine areas or things near your house, or to look in your windows in order to develop probable cause to get a search warrant.
Keep in mind, however, that you must also take reasonable measures to protect your privacy. The police are allowed to use any ancient or modern devices to aid their vision and hearing. So, if you are going to leave your curtains or blinds open at night with the lights on inside and the police are somewhere they are legally permitted to be using binoculars, telescopes, or night vision goggles, bad news for you. Likewise, if you are going to talk about illegal activity in your backyard where the nosy neighbor can overhear you and call the police, foolish you.
If you have been arrested, whether or not the police violated the curtilage of your residence, you need an experienced attorney at the earliest opportunity. Call me, criminal defense attorney Rebecca Ocain at 619-431-1076, and do not talk to the police until I get there!
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.