Blaes: Cop-arrazi

15

NOTE

Cop-arrazi: Why Body Cameras Are Incompatible with the Fourth

Amendment

ZACHARY R. BLAES

ABSTRACT

The idea of outfitting police officers with body cameras in order to increase officer accountability has been around for some time. Recent events have fueled the call for outfitting officers with body cameras as our national conversation has turned toward police accountability. Although body cameras are primarily used as a means of preventing police misconduct, the possibility that citizens can now be watched at all times is concerning. In fact, body cameras conflict with Fourth Amendment principles as they create privacy concerns for citizens in both public and private settings. Specifically, body cameras have the ability to permanently memorialize any encounter between a citizen and a police officer, thereby capturing the intimate details of a citizen’s everyday life.

*Candidate for Juris Doctorate, New England Law | Boston (2016). B.A., Political Science,

University of Colorado at Denver (2010). Thank you to my wonderful parents and family for

all of their love and support. I would also like to thank Professor Natashia Tidwell for all of

her help and guidance. I would like to thank my colleague Ted Sisk for coming up with my

title. Lastly, I want to thank the entire New England Law Review staff for their hard work in

editing this article for publication.

16 New England Law Review On Remand Vol. 50 | 15

INTRODUCTION

think everything and everyone should be seen. And to be seen, we need to be watched. The two go hand in hand,” said Mae, the main character in Dave Egger’s recent novel “The Circle.”1 The novel tells the story of a

social media company that begins to track everything and everyone—at times through cameras that are worn around the characters’ necks.2 The reaction to the statement, however, is the most important line from the novel—“But who wants to be watched all the time?”3

An increasing number of police departments are outfitting their officers with body cameras as our national conversation has turned toward police accountability.4 Recent events, such as the officer-involved shooting in Ferguson, Missouri, demonstrate how valuable video evidence of such incidents can be.5 The very different accounts of the circumstances surrounding Michael Brown’s death and the perceived unwillingness of the St. Louis Police Chief to believe witnesses over the officer demonstrate this value.6 Other officer-involved killings7 and grand jury failures to indict the officers involved, have further fueled the call for greater police accountability.8

Although body cameras are primarily used as a means of preventing police misconduct, the possibility that citizens can be watched at all times is troubling.9 This Note argues that body cameras conflict with Fourth

1 DAVE EGGERS, THE CIRCLE 485 (2014). 2 See generally id. 3 See id. at 485. 4 Daniel J. Gross, Use of Body Cameras in Law Enforcement Surging in Wake of Ferguson

Shooting, GOUPSTATE (Jan. 3, 2015, 6:05 PM), http://www.goupstate.com/article/20150103

/ARTICLES/150109933. 5 See Martina Kitzmueller, Are You Recording This?: Enforcement of Police Videotaping, 47

CONN. L. REV. 167, 178 (2014). 6 See id. 7 See Jamelle Bouie, Shoot First: When Cops’ First Instinct Is to Use Force, We Shouldn’t Be

Surprised that People Will Die, SLATE (Dec. 4, 2014 3:55 PM), http://www.slate.com/articles

/news_and_politics/politics/2014/12/eric_garner_daniel_pantaleo_and_cop_training_police_de

partments_must_explain.html (discussing Eric Garner’s death and other incidents of police

escalation of force that lead to death). 8 See Gross, supra note 4. 9 See J. David Goodman, New York Police Officers to Start Using Body Cameras in a Pilot

Program, N.Y. TIMES (Sept. 4, 2014), http://www.nytimes.com/2014/09/05/nyregion/new-york-

police-officers-to-begin-wearing-body-cameras-in-pilot-program.html.

I

2015 Cop-arrazi 17

Amendment privacy principles. Part I provides a background on police body camera programs and discusses results from jurisdictions that have implemented such programs. Part II provides a background on relevant Fourth Amendment principles. Part III argues that body cameras implicate Fourth Amendment privacy concerns because they have the ability to capture, and intrude upon, the intimate details of an individual’s life.

I. Background

Filming police officers during the course of their official duty is an important means of holding government officials accountable.10 The availability of new technology has led to an increasing number of police departments outfitting their officers with dashboard and body cameras.11 Such video recording devices, particularly body cameras, provide important video evidence: documenting police misconduct and protecting officers from false allegations.12 Although sometimes shocking, video evidence of officer-involved shootings is helpful in determining whether an officer engaged in any wrongful conduct.13

Recent developments have brought the discussion of filming police officers to the forefront of our society.14 While not new, programs requiring police officers to wear body cameras are becoming increasingly popular.15 In fact, many people are calling for widespread implementation of such programs.16 Body cameras prevent police wrongdoing while also protecting officers who are falsely accused.17 For instance, the video footage can offer important evidence in “he-said she-said encounters” with the public.18

10 See Glik v. Cunniffe, 655 F.3d 78, 82–83 (1st Cir. 2011). 11 Kitzmueller, supra note 5, at 167, 169 (discussing video footage captured from an officer’s

head camera showing the fatal shooting of a homeless person by Albuquerque police officers).

Without the video it is unlikely that the incident could have been recreated as completely and

accurately. Id. 12 See id. at 167. 13 See id. at 169. 14 See Bouie, supra note 7; Gross, supra note 4. 15 See Matt Stroud, The Big Problem with Police Body Cameras, BLOOMBERG BUS. WK. (Jan. 15,

2015, 8:22 AM), http://www.businessweek.com/articles/2015-01-15/police-body-camera-

policies-wont-work-if-cops-dont-turn-cameras-on. 16 See German Lopez, Police Body Cameras, Explained, VOX (July 30, 2015, 10:35 AM),

http://www.vox.com/2014/9/17/6113045/police-worn-body-cameras-explained. 17 See generally Goodman, supra note 9 (noting “studies have suggested their use reduces

both citizen complaints and officers’ use of force”). 18 Id.


A. Body Camera Programs: Benefits and Results from Programs Instituted Thus Far

The principle benefits associated with recording police activity are: ensuring accountability and transparency, reducing complaints against officers, and resolving officer-involved incidents.19 These categories are not mutually exclusive, as the idea of increasing officer professionalism affects all three categories.20 A Department of Justice report identifies a major benefit associated with body cameras: they help prevent issues from arising in the first place.21 This is accomplished by: increasing officer professionalism, helping evaluate officer performance, and creating a vehicle to identify and address problems within police departments.22 Recording officers’ actions increases professionalism by forcing officers to rigorously follow their guidelines when dealing with citizens, and even suspects.23 Additionally, body cameras are said to increase accountability and transparency because there is a video record of the officers’ encounter with the public.24 The result is that agencies that generally handle police officer complaints receive fewer complaints when there is video record of the interaction.25

Despite recent events bringing the body camera discussion to the forefront of our society, the idea of outfitting police officers with cameras is not new.26 In fact, various jurisdictions in the United States are already experimenting with the technology.27 As early as 2010, police departments in Cincinnati, Ohio and San Jose, California, experimented with outfitting officers with small cameras worn on the officers’ heads.28

19 See UNITED STATES DEP’T OF JUSTICE, IMPLEMENTING A BODY-WORN CAMERA PROGRAM:

RECOMMENDATIONS AND LESSONS LEARNED 5 (2014), available at http://www.justice.gov

/iso/opa/resources/472014912134715246869.pdf. 20 See id. (explaining that an increase in officer professionalism from the use of body

cameras resulted in fewer officer complaints). 21 Id. 22 Id. 23 David A. Harris, Picture This: Body-Worn Video Devices (Head Cams) As Tools for Ensuring

Fourth Amendment Compliance by Police, 43 TEX. TECH L. REV. 357, 360 (2010). 24 UNITED STATES DEP’T OF JUSTICE, supra note 19, at 5. But see Melissa Gregg & Jason

Wilson, The Myth of Neutral Technology, THE ATLANTIC (Jan. 13, 2015),

http://www.theatlantic.com/technology/archive/2015/01/the-myth-of-neutral-

technology/384330/ (stating that one reason for the reduced complaints could be “that citizens

with a grievance are intimidated by the fact that police possess a record of their encounter to

which the complaining citizen has no access”). 25 See, e.g., UNITED STATES DEP’T OF JUSTICE, supra note 19, at 5. 26 See Harris, supra note 23, at 361 (discussing police departments in Great Britain that

began experimenting with police officers wearing cameras as early as 2005). In fact, a report

2015 Cop-arrazi 19

1. Results from Jurisdictions that Have Implemented Body Camera Programs

The city of Rialto, California, was one of the first jurisdictions in the country to implement a body camera program.29 The body camera program was introduced in February 2012 and saw positive results soon after.30 After the cameras were introduced, complaints against officers fell by over 80% as compared with the previous year.31 As part of the program, the police department randomly assigned body cameras to various police officers over the course of nearly 1,000 shifts.32 Generally, members of the public who interacted with the officers tended to be more polite when informed they were on camera.33 “[T]here was a 60[%] reduction in officer use of force incidents following camera deployment, and during the experiment, the shifts without cameras experienced twice as many use of force incidents as shifts with cameras.”34 These figures demonstrate that officers are less likely to use force when wearing the cameras.35 The Rialto police chief, Tony Farrar, spoke positively of the program stating, “When you know you’re being watched you behave a little better . . . [a]s an officer you act a bit more professional, follow the rules a bit better.”36

issued on the subject by the U.K. Home Office found that the officers who participated in the

trials experienced significant benefits. Id. 27 See id. 28 See Russ Mitchell, Police Head Cameras Capture Action, Evidence, CBS NEWS (Apr. 14, 2010,

7:26 PM), http://www.cbsnews.com/news/police-head-cameras-capture-action-evidence/. 29 Rory Carroll, California Police Use of Body Cameras Cuts Violence and Complaints, THE

GUARDIAN (Nov. 4, 2013, 12:00 PM), http://www.theguardian.com/world/2013/nov/04

/california-police-body-cameras-cuts-violence-complaints-rialto. 30 Id. 31 Eileen Shim, 3 Years After this City Made Cops Wear Cameras, Here’s What Happened to Police

Violence, NEWS.MIC (Nov. 25, 2014), http://mic.com/articles/92777/3-years-after-this-city-made-

cops-wear-cameras-here-s-what-happened-to-police-violence. 32 UNITED STATES DEP’T OF JUSTICE, supra note 19, at 5. 33 Carroll, supra note 29. It is not clear whether the officers in Rialto were required to inform

members of the public they were being recorded. See generally POLICE FOUNDATION, SELF-

AWARENESS TO BEING WATCHED AND SOCIALLY-DESIRABLE BEHAVIOR: A FIELD EXPERIMENT ON

THE EFFECT OF BODY-WORN CAMERAS ON POLICE USE-OF-FORCE, available at

http://www.policefoundation.org/wp-content/uploads/2015/06/The-Effect-of-Body-Worn-

Cameras-on-Police-Use-of-Force.pdf (explaining the methodology and the way the study was

conducted, however, nothing in the study states that officers were required to inform

members of the public they were being recorded). 34 UNITED STATES DEP’T OF JUSTICE, supra note 19, at 5. 35 See Carroll, supra note 29. 36 Id.


A similar one-year pilot program was instituted in Mesa, Arizona, in 2012.37 The Mesa Police Department outfitted fifty officers with body cameras and created a control group with fifty officers not wearing the cameras.38 The results, again, were promising: during the first eight months the non-camera officers received nearly three times as many complaints as the officers with cameras.39 Additionally, the officers outfitted with the cameras received 45% fewer complaints, including 75% fewer use of force complaints, as compared with the previous year when the officers had not been wearing cameras.40 The study also found that officers equipped with cameras were involved in far fewer stop-and-frisks and arrests.41 Officers, aware they were being filmed, likely put more thought into whether there was reasonable suspicion in a stop-and-frisk situation and whether there was probable cause for an arrest.42 On the other hand, the officers outfitted with cameras wrote significantly more tickets, likely because they were concerned about the repercussions of not issuing a ticket where video footage showed a violation.43

2. Jurisdictions that Have Recently Decided to Implement Body Camera Programs

Last fall the New York City Police Department began a body camera pilot program with the intention of eventually outfitting its entire force, the largest in the nation, with the technology.44 The program consisted of deploying sixty cameras in five high-crime precincts.45 Interestingly, the City was actually ordered to implement such a program by a federal judge as remedial action for the City’s unconstitutional stop-and-frisk policy.46

37 See UNITED STATES DEP’T OF JUSTICE, supra note 19, at 5. 38 Id. 39 Id. at 6. 40 Id. 41 Justin T. Ready & Jacob T.N. Young, Three Myths About Police Body Cams, SLATE (Sept. 2,

2014, 12:54 PM), http://www.slate.com/articles/technology/future_tense/2014/09/ferguson_

body_cams _myths_about_police_body_worn_recorders.html. 42 Id. 43 Id. 44 Goodman, supra note 9. 45 Id. 46 See Floyd v. City of New York, 959 F. Supp. 2d 540, 562, 660 (S.D.N.Y. 2013) (determining

that New York City’s stop-and-frisk policy violated the Fourth and Fourteenth Amendments

and ordering the City to implement a body camera program). In discussing why a body

camera program would serve as a good remedy, Judge Scheindlin stated:

In making these decisions I note that evaluating a stop in hindsight is an

imperfect procedure. Because there is no contemporaneous recording of

2015 Cop-arrazi 21

Despite this order, the City stated that it was proceeding both independently and unilaterally because the issue was too important to wait.47

Similarly, Chicago recently decided to implement a body camera pilot program.48 The Chicago Police Department intended to evaluate the program after a forty-five to sixty day period.49 The program is said to be a cornerstone of the Mayor’s anti-crime agenda.50 Officers will be instructed to turn their cameras on during high-risk situations as well as during routine stops.51 In fact, the hope is that the cameras will record a wide range of police activity from investigatory and traffic stops, to foot and vehicle pursuits, and simple routine calls.52

Additionally, Los Angeles recently purchased 7,000 body cameras for widespread use amongst its police force.53 As mentioned above, body camera programs are being implemented more and more frequently, but Los Angeles will be the first major city to implement the cameras on a wide scale.54 Similar to the purpose behind Chicago’s plan, Los Angeles’ Mayor stated that the purpose behind the effort is to repair the trust between the community and the police department.55 Supporters of the program claim visual recordings of officer interactions will prevent officer misconduct and clear officers that are falsely accused of misconduct.56

the stop (such as could be achieved through the use of a body-worn

camera), I am relegated to finding facts based on the often conflicting

testimony of eyewitnesses. This task is not easy, as every witness has an

interest in the outcome of the case, which may consciously or

unconsciously affect the veracity of his or her testimony.

Id.

47 Goodman, supra note 9. 48 Megan Crepeau, Some Chicago Police Will Start Wearing Body Cameras in Next Two Weeks,

CHI. TRIB. (Jan. 20, 2015, 2:35 PM), http://www.chicagotribune.com/news/local/

breaking/redeye-police-to-test-body-camera-pilot-program-20150120-story.html. 49 Id. 50 Fran Spielman, Emanuel Launches Body-Cam Pilot to Rebuild Trust Between Citizens and

Police, CHI. SUN TIMES (Jan. 20, 2015, 1:13 PM), http://chicago.suntimes.com/news-

chicago/7/71/306307/emanuel-unveil-second-term-crime-agenda. 51 Crepeau, supra note 48. 52 Id. 53 Kate Mather & Richard Winton, LAPD’s Plan for 7,000 Cameras Comes with Challenges, L.A.

TIMES (Dec. 16, 2014, 7:14 PM), http://www.latimes.com/local/lanow/la-me-ln-lapds-plan-for-

7000-body-cameras-comes-with-challenges-20141216-story.html. 54 See id. 55 See id. 56 Kate Mather, LAPD Moves One Step Closer to On-Body Cameras for Officers, L.A. TIMES


II. Relevant Fourth Amendment Principles

The Fourth Amendment commands that people shall be free from unreasonable searches and seizures, and provides that warrants shall only be issued upon probable cause.57 Although the right to privacy is not explicitly mentioned in the Constitution, it is alluded to in several Bill of Rights provisions, especially the Fourth Amendment.58 The Fourth Amendment does not grant a general right of privacy, but does protect an individual’s privacy by prohibiting certain types of governmental intrusion.59 Picking up on this point, the Supreme Court has stated “the Fourth Amendment protects people, not places,” and whatever a person “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”60 Thus, the Fourth Amendment provides individuals with a certain level of privacy protection when they are in public.61 In order for the Fourth Amendment protections to attach, however, there must be some state action that constitutes a search or seizure within the meaning of the Fourth Amendment.62 Justice Harlan’s concurrence from Katz v. United States embodies the test courts use for such an inquiry today—an individual must exhibit an actual (subjective) expectation of privacy, and that expectation must be one that society recognizes as reasonable.63

(Nov. 4, 2014, 6:49 PM), http://www.latimes.com/local/lanow/la-me-ln-lapd-body-cameras-

20141104-story.html. 57 U.S. CONST. amend. IV. 58 See, e.g., Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (stating that various Bill of

Rights provisions create “zones of privacy”). These zones of privacy include: the Third

Amendment’s command against quartering soldiers during peace time, the Fourth

Amendment’s affirmation that people shall be “secure in their persons, houses, papers and

effects, against unreasonable searches and seizures,” the Fifth Amendment’s protection

against self-incrimination, and the Ninth Amendment’s statement that rights enumerated in

the Constitution shall not be used to deny the people other non-enumerated rights retained by

the people. Id. 59 Katz v. United States, 389 U.S. 347, 350 (1967). 60 Id. at 351. 61 See id. 62 Wayne D. Holly, The Fourth Amendment Hangs in the Balance: Resurrecting the Warrant

Requirement Through Strict Scrutiny, 13 N.Y.L. SCH. J. HUM. RTS. 531, 536 n.22 (1997) (“While

‘reasonableness’ is certainly central to Fourth Amendment analysis, the threshold Fourth

Amendment inquiry is whether a ‘search’ has occurred within the meaning of the

Amendment.”). 63 Id. at 361 (Harlan, J., concurring). In Katz, the state was permitted to introduce evidence

of a defendant’s phone conversation that was overheard by FBI agents who had attached an

electronic listening device outside a phone booth. Id. at 348. The Court determined that the

2015 Cop-arrazi 23

A. Expectation of Privacy in Words Conveyed to Third Persons

Generally, individuals have no expectation of privacy in public conversations capable of being overheard.64 Likewise, individuals have no expectation of privacy in words conveyed to third persons that are ultimately turned over to law enforcement.65 For example, in On Lee v. United States, the Supreme Court held that an informant’s electronic transmission of statements to a nearby narcotics agent was not a search.66 The Court reasoned that although a transmitter device was used, the effect of such a device was the same as if the agent had simply listened to the defendant’s conversation through an open window.67 The defendant assumed the risk of what he was saying by “talking confidentially and indiscreetly with one he trusted.”68 Similarly, in Lopez v. United States, the defendant consented to a known IRS agent’s presence in his office and subsequently made incriminating remarks that were recorded by the agent.69 On the defendant’s Fourth Amendment claim, the Court stated that the agent’s recording merely served as a memorialization of the conversation—a conversation to which the agent could, and did, testify. According to the Court, “the risk that [the defendant] took in offering a bribe to [the agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.”70

Likewise, Hoffa v. United States addressed whether the Fourth Amendment protects the contents of an individual’s conversation made to an informant in a hotel room.71 The defendant invited the informant into the hotel room on several occasions, and the informant relayed the details of the conversations to a government agent.72 These reports and the

state action was a search within the meaning of the Fourth Amendment because the defendant

justifiably relied on an expectation of privacy when he entered the phone booth and shut the

door behind him. Id. at 353. 64 Donald L. Doernberg, "Can You Hear Me Now?": Expectations of Privacy, False Friends, and

the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence, 39 IND. L. REV.

253, 270 (2006) (“Conversations in the open would not be protected against being overheard,

for the expectation of privacy under the circumstances would be unreasonable.”). 65 See Hoffa v. United States, 385 U.S. 293, 302 (1966). 66 343 U.S. 747, 749 (1952). 67 Id. at 753–54. 68 Id. 69 See 373 U.S. 427, 429–31, 438 (1963). 70 Id. at 439. 71 See, 385 U.S. 293, 302 (1966). 72 Id. at 296.


informant’s testimony contributed to the defendant’s conviction.73 The Court determined that the Fourth Amendment was not implicated in this case because the defendant was not relying on the security of the hotel room; rather, “he was relying upon his misplaced confidence that [the informant] would not reveal his wrongdoing.”74 It was further stated that no court “has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”75

Lastly, in United States v. White, the defendant was monitored through a radio transmitter device carried by an informant, and these conversations were used as evidence against the defendant at trial.76 The Court of Appeals reversed the district court holding that the Fourth Amendment is violated when a conversation is recorded and instantaneously broadcasted to government agents.77 The Supreme Court, however, determined that the proper inquiry was whether the defendant had a reasonable expectation of privacy when conversing with the informant.78 According to the Court, the prior holdings in Hoffa and Lopez are clear—an individual engaged in illegal activity assumes the risk that the information revealed to a companion will neither now, nor later, be revealed to law enforcement.79 In dissent, Justice Harlan noted that permitting law enforcement to instantaneously record conversations would cause individuals to limit what they say to one another in public, and reduce spontaneity in everyday conversations.80 According to Justice Harlan, such spontaneity is important because:

one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record.81

B. Expectation of Privacy in Public Movements

Individuals also have an expectation of privacy in their public

73 Id. 74 Id. at 302. 75 Id. 76 401 U.S. 745, 746–47 (1971). 77 Id. at 747, 749. 78 Id. at 749, 752. 79 Id. at 752–53. 80 Id. at 787 (Harlan, J., dissenting). 81 Id. at 788 (Harlan, J., dissenting).

2015 Cop-arrazi 25

movements and the places they visit.82 The visual surveillance of a person in public generally does not implicate the Fourth Amendment because there is no expectation that one’s public movements are to remain private.83 Whether extended visual surveillance and electronic tracking violate expectations of privacy is another question, and one that the Supreme Court addressed for the first time in United States v. Knotts.84 The Court held that visual surveillance and monitoring through an electronic tracking device did not constitute a search within the meaning of the Fourth Amendment.85 The Court reasoned:

A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the defendant] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.86

Likewise, in United States v. Jones, the Court addressed whether attaching a GPS monitoring device to a defendant’s car constituted a search within the meaning of the Fourth Amendment.87 The Court held that attaching the GPS to the defendant’s car constituted a search because it was a trespass.88 While the majority did not analyze the case under the Katz expectation of privacy standard, five justices addressed whether individuals have an expectation of privacy in preventing the government from monitoring their movements in public.89 Justice Alito’s concurrence, joined by Justices Ginsburg, Breyer, and Kagan, determined that the long-term GPS monitoring of the defendant’s car was a search because “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”90 In a

82 See United States v. Jones, 132 S. Ct. 945, 950 (2012) (stating the government’s argument

that the defendant did not have a reasonable expectation of privacy in the places he visited

because he was driving on public roads visible to all). 83 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §

2.7(g), at 1016–17 (5th ed. 2014). 84 Id. § 2.7(g), at 1017–18. 85 Id. § 2.7(g), at 1018. 86 United States v. Knotts, 460 U.S. 276, 281–82 (1983). 87 United States v. Jones, 132 S. Ct. 945, 949 (2012). 88 Id. at 949, 950–51. 89 See LAFAVE, supra note 83, § 2.7(g), at 1018 & n.271. 90 Jones, 132 S. Ct. at 964 (Alito, J., concurring).


separate concurrence, Justice Sotomayor noted that both long-term and short-term GPS monitoring could violate expectations of privacy.91 This is so because “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”92

ANALYSIS

III. Body Cameras Are Incompatible with Fourth Amendment Protections

The Fourth Amendment protects a certain amount of privacy and prohibits unwarranted governmental intrusion, but it does not grant a general right of privacy.93 Police worn body cameras designed to capture a range of encounters with the public will violate citizens’ expectations of privacy.94 The body cameras create privacy concerns for individuals in both public and private settings.95 The search threshold inquiry is important when determining whether an individual memorialized by an officer’s body camera is entitled to Fourth Amendment protection.96 Body cameras will record a significant amount of innocent activity, thereby affecting individual privacy—especially when officers enter an individual’s home.97 An officer capturing video evidence of an individual engaged in criminal activity could constitute a search within the meaning of the Fourth Amendment.98 Under Katz, if an individual is exhibiting an actual expectation of privacy, and that expectation is objectively reasonable, an

91 Id. at 955 (Sotomayor, J., concurring). 92 Id. (Sotomayor, J., concurring). 93 See Katz v. United States, 389 U.S. 347, 350 (1967). 94 See Crepeau, supra note 48 (explaining that body cameras will capture a range of police

activity including: investigatory stops, traffic stops, foot and vehicle pursuits, and even

routine calls). 95 Matt Pearce, Growing Use of Police Body Cameras Raises Privacy Concerns, L.A. TIMES (Sept.

27, 2014, 6:00 AM), http://www.latimes.com/nation/la-na-body-cameras-20140927-

story.html#page=1. 96 See Afsheen John Radsan, The Case for Stewart over Harlan on 24/7 Physical Surveillance, 88

TEX. L. REV. 1475, 1475 (2010) (arguing that physical surveillance by police officers can reach

the point where it becomes a search). 97 JAY STANLEY, POLICE BODY-MOUNTED CAMERAS: WITH RIGHT POLICIES IN PLACE, A WIN

FOR ALL 3 (2013), available at https://www.aclu.org/files/assets/police_body-

mounted_cameras.pdf. 98 See, e.g., Katz, 389 U.S. at 350 (stating that Fourth Amendment protects against certain

types of government intrusion).

2015 Cop-arrazi 27

officer equipped with a body camera conducts a search.99 Such a search must comply with other Fourth Amendment strictures, such as probable cause and reasonableness.100

A. Privacy Expectations When an Officer Outfitted with a Body Camera Enters an Individual’s Home

An officer outfitted with a body camera entering a home creates serious privacy implications.101 A police officer can enter a home for a variety of reasons including consensual entry or in response to a domestic violence call.102 Individuals have a heightened privacy interest in the sanctity of their homes because physical entry into one’s home is the chief evil the Fourth Amendment protects against.103 More to the point, “[i]t is accepted at least as a matter of principle, that a search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable . . . .”104 In fact, a search warrant fundamentally protects individuals’ interest in the privacy of their homes against unjustified government intrusion.105 An officer outfitted with a body camera who enters an individual’s home, even for a benign purpose, will intrude on that individual’s privacy because the officer could reproduce the intimate details of the home with complete accuracy.106

Under the plain view doctrine, an officer is permitted to seize evidence of a crime without a warrant if the officer is lawfully present in a place where the object can be seen, and the incriminating nature of the object is immediately apparent.107 However, an officer lawfully entering an

99 See Marc Jonathan Blitz, Video Surveillance and the Constitution of Public Space: Fitting the

Fourth Amendment to A World That Tracks Image and Identity, 82 TEX. L. REV. 1349, 1408 (2004)

(explaining that public video surveillance conducted by law enforcement “presents

a deep threat to core liberty and privacy interests in a number of ways”). 100 U.S. CONST. amend. IV. 101 See STANLEY, supra note 97. 102 Id. 103 United States v. United States Dist. Ct., 407 U.S. 297, 313 (1972). 104 Coolidge v. New Hampshire, 403 U.S. 443, 474–75 (1971). 105 Steagald v. United States, 451 U.S. 204, 213 (1981) (“[a] search warrant . . . is issued upon

a showing of probable cause to believe that the legitimate object of a search is located in a

particular place and therefore safeguards an individual's interest in the privacy of his home . .

. against the unjustified intrusion of the police”). 106 Cf. Quin M. Sorenson, Losing A Plain View of Katz: The Loss of a Reasonable Expectation of

Privacy Under the Readily Available Standard, 107 DICK. L. REV. 179, 179–80 (2002) (explaining

that new technologies may one day allow the government to reproduce intimate details of a

person’s home without actually seizing any items). 107 Horton v. California, 496 U.S. 128, 135–36 (1990).


individual’s home with an active body camera may capture incriminating details without those details being immediately apparent.108 In fact, a Department of Justice report on body cameras specifically states that “[m]any law enforcement agencies have taken the position that officers have the right to record inside a private home as long as they have a legal right to be there.”109 Because body camera footage remains under police department control, there is nothing to stop an officer from viewing the footage in an in-depth manner at a later time to identify incriminating details.110 Therefore, permitting officers to use body cameras while entering an individual’s home is incompatible with the plain view doctrine.111

Likewise, body cameras may embolden officers to enter an individual’s home in a pretextual manner in order to capture incriminating evidence on film.112 The exigent circumstances exception to the warrant requirement may serve as a vehicle for such pretextual searches.113 It is easy to imagine a scenario in which an officer develops probable cause outside of an individual’s home leading to a valid arrest.114 From this point, the officer may arguably search the individual’s home under an exigent circumstances theory.115 The scope of such a search is substantially limited

108 See UNITED STATES DEP’T OF JUSTICE, supra note 19, at 15 (“[When] enter[ing] a home in

response to a call for service, pursuant to a valid search warrant, or with consent of the

resident, officers can record what they find inside.”). 109 Id. (emphasis added). 110 See id. at 17–19 (explaining that if footage is deemed “evidentiary” the police

department generally keeps the footage, which is not subject to public disclosure, until the

investigation is over). 111 This situation is similar to Arizona v. Hicks, in which the Court held that the

incriminating nature of a stolen speaker was not immediately apparent because the officer

had to move the speaker to reveal the identification number. 480 U.S. 321, 328 (1987). 112 Cf. Steagald v. United States, 451 U.S. 204, 215 (1981) (stating that an officer may use an

arrest warrant as a pretext for entering an individual’s home with only a reasonable suspicion,

rather than probable cause, that criminal activity is taking place). 113 See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 299 (1967) (stating that the scope

of an exigent circumstances search must be reasonably necessary to prevent the danger of the

suspect either resisting or escaping). 114 This scenario is similar to Vale v. Louisiana, in which officers were conducting

surveillance outside an individual’s home, and after witnessing the individual engage in an

apparent drug transaction, the officer’s arrested the individual and subsequently searched his

home. 399 U.S. 30, 32–33 (1970). 115 While the Court in Vale v. Louisiana held that the arrest on the street did not create an

exigent circumstance, that holding could very well be confined to specific facts of the case. See

id. at 34 (stating that the exigent circumstances destruction of evidence rationale was

inapplicable because the officers were aware that there was no one currently in the house

when the defendant was arrested).

2015 Cop-arrazi 29

by the exigent circumstances doctrine itself.116 However, that limited scope would be thrown out the window if an officer equipped with a body camera were able to record and reproduce the intimate details of the individual’s home.117 Thus, an officer outfitted with a body camera entering a home creates serious privacy implications.118

B. Privacy Implications Associated with Officer Body Camera Use in Public Places

Generally, individuals have no expectation of privacy in the movements they make in public, or in the places they go while using public roads and walkways.119 The principle is that a person voluntarily conveys such information to anyone interested in looking.120 Body camera use by police officers will capture more than mere information concerning where a person is at a particular time—the cameras will capture intimate details of a person’s life.121 Additionally, an individual does not have a reasonable expectation of privacy that the words conveyed to another will not be turned over to law enforcement.122 While there is no reasonable expectation of privacy in a person’s public movements or conversations, there is an expectation of privacy that a person’s movements, conversations, and daily conduct will not be memorialized in video form by a police officer.123

The cases stating that individuals have no expectation of privacy in their conversations are distinguishable from the way in which a body

116 Hayden, 387 U.S. at 299 (“The permissible scope of search must, therefore, at the least, be

as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the

house may resist or escape.”). 117 See supra note 106 and accompanying text. 118 See STANLEY, supra note 97, at 3. See also Matthew Feeney, Police Body Cameras Raise

Privacy Issues, CATO INST. (Feb. 12, 2015, 1:27 PM), http://www.cato.org/blog/police-body-

cameras-raise-privacy-issues-cops-public (“It is not hard to imagine a situation in which

police officers wearing body cameras enter someone’s home and leave without making an

arrest. Footage of that encounter could reveal embarrassing or private information about the

homeowner.”). 119 See United States v. Knotts, 460 U.S. 276, 281 (1983) (explaining that an individual

“travelling in an automobile on public thoroughfares has no reasonable expectation of privacy

in his movements from one place to another.”). 120 See id. 121 See United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring). 122 See Hoffa v. United States, 385 U.S. 293, 302 (1966). 123 See Blitz, supra note 99, at 1407 (explaining that a person’s private life is not always

carried out in a private place, and merely because a person is in a public space does not mean

that the private details of their life are no longer private).


camera would capture a public conversation.124 In On Lee, the defendant’s incriminating words were electronically transmitted to a nearby narcotics agent and the Court determined that the defendant assumed the risk that what he said would not be kept confidential.125 The conversations that would be captured by a body camera are not the type of confidential conversations at issue in On Lee.126 Rather, they are everyday conversations simply revealing the personal details of an individual’s life.127 While some consider body cameras merely an extension of dashboard cameras, the body cameras capture everything an officer sees as opposed to the limited vantage point of a dashboard camera.128

Lopez, on the other hand, concerned a defendant who invited a known IRS agent into his office and assumed the risk that the agent was not recording his conversation.129 In a sense, this is similar to a scenario in which an officer informs a member of the public that he or she is being recorded by the officer’s body camera.130 In fact, the body camera program instituted in Rialto indicated that when members of the public were informed that they were on camera, they generally responded in a more polite manner.131 Once they knew they were being recorded, the difference in the way these individuals responded is instructive.132 They changed the way they acted—by being more polite—meaning they were less likely to converse openly and in their normal manner.133 But this is a different situation than Lopez, because the individuals in Rialto, and people in general, are not consenting to the officer’s presence.134 Rather, a police officer has free range to approach and record individuals in public, with or without their consent.135

124 See United States v. White, 401 U.S. 745, 752–53 (1971); Hoffa, 385 U.S. at 302; Lopez v.

United States, 373 U.S. 427, 439 (1963); On Lee v. United States, 343 U.S. 747, 754 (1952). 125 On Lee, 343 U.S. at 749, 753–54. 126 See id. at 753–54. 127 See Blitz, supra note 99, at 1408 (explaining that public video recording could capture

intimate details of a person’s life such as a medical condition or status of a personal

relationship). 128 Rachel Weiner, Police Body Cameras Spur Privacy Debate, WASH. POST (Nov. 10, 2013),

http://www.washingtonpost.com/local/crime/police-body-cameras-spur-privacy-

debate/2013/11/10/7e9ee504-2549-11e3-b75d-5b7f66349852_story.html. 129 See 373 U.S. at 429–31, 439. 130 See Carroll, supra note 29. 131 Id. 132 See id. 133 See id. 134 See Lopez, 373 U.S. at 429–31, 439. 135 It is not clear whether the officers in Rialto were required to inform members of the

2015 Cop-arrazi 31

Additionally, Hoffa concerned a defendant who invited an informant into his hotel room on several occasions and then made incriminating remarks to the informant that were later used against him at trial.136 The Court explicitly stated that the Fourth Amendment does not protect individuals engaged in illegal activity when they voluntarily confide about such illegal activity to another person.137 The issue with a body camera is not that it will record an individual conversing about illegal activity, but rather that it will record individuals engaged in their everyday affairs—possibly revealing intimate details of their life.138 Video surveillance by law enforcement generally does not violate the Fourth Amendment, but it is not the act of video surveillance itself that is an issue—it is the intimate details of a person’s life captured by a body camera that is an issue.139

Additionally, there are similarities between United States v. White and a police officer outfitted with a body camera memorializing an individual’s public conduct.140 In White, an informant transmitted the defendant’s conversation—which took place in public—directly to a government agent.141 The Supreme Court determined the instantaneous transmission of the defendant’s words did not violate his expectation of privacy because the defendant assumed the risk that information he was revealing would not be turned over to law enforcement.142 In dissent, Justice Harlan focused on the chilling effect this would have on conversation in public.143 Such a practice by law enforcement would “undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society.”144

public they were being recorded. See generally POLICE FOUNDATION, supra note 33 (explaining

the methodology and the way the study was conducted, however, nothing in the study states

that officers were required to inform members of the public they were being recorded). 136 385 U.S. 293, 296 (1966). 137 Id. at 302. 138 See id. 139 See Blitz, supra note 99, at 1378 (2004) (explaining the courts generally consider the

Fourth Amendment inapplicable to instances where a defendant complains of video

surveillance by law enforcement); see also United States v. Taketa, 923 F.2d 665, 677 (9th Cir.

1991) (stating that “[v]ideo surveillance does not in itself violate a reasonable expectation of

privacy” because “the police may record what they normally may view with the naked eye”).

The Taketa court, however, went on to note that it is possible for an individual to create a

“temporary zone[] of privacy,” where they may “not reasonably be videotaped.” Id. 140 See 401 U.S. 745, 746–47 (1971). 141 See id. at 746–47. 142 Id. at 752–53. 143 Id. at 787 (Harlan, J., dissenting). 144 Id. (Harlan, J., dissenting).


This confidence and sense of security will be undermined to an even greater extent when citizens’ everyday conversations are subject to being recorded by a police officer’s body camera.145 Although it is permissible for a police officer to listen in on such a conversation, the difference is that recording the conversation creates a permanent record for law enforcement purposes.146 A recording removes the difficulty associated with remembering a statement, or event, and attempting to piece the information together after the fact.147 This flows into another point Justice Harlan made in his dissent, namely that our system of government, and particularly the Constitution, should not “impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.”148 According to Justice Harlan, “[f]or those more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of Fourth Amendment liberties, I am of the view that more than self-restraint by law enforcement officials is required and at the least warrants should be necessary.”149

The risk of a video observer creates an even greater impact on a citizen’s sense of security in a public area.150 The privacy interest of individuals in public should be protected at least to the extent that their conversations are not subject to being recorded by video without the protection of a warrant.151 Lastly, as Justice Sotomayor noted in United States v. Jones, monitoring individuals to the extent that it creates a precise record of their movements could violate expectations of privacy even though such monitoring takes place in public.152 Body cameras capture the same “wealth of detail” about an individual’s “familial, political, professional, religious, and sexual associations” that Justice Sotomayor stated could violate expectations of privacy.153

145 See id. (Harlan, J., dissenting). 146 See Blitz, supra note 99, at 55 (arguing that public video surveillance by law enforcement

allows the “authorities to sift through sensitive information about our movements and

activities. A recording transforms an ephemeral event into a permanent record.”). 147 Id. 148 White, 401 U.S. at 786 (Harlan, J., dissenting). 149 Id. at 786–87 (Harlan, J., dissenting). 150 See id. (Harlan, J., dissenting). 151 See id. (Harlan, J., dissenting); see also Rebecca G. Van Tassell, Walking a Thin Blue Line:

Balancing the Citizen's Right to Record Police Officers Against Officer Privacy, 2013 BYU L. REV.

183, 189 (2013) (analyzing whether an officer has a reasonable expectation of privacy to not be

recorded in public while conducting their official duty). 152 See 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring). 153 See id. (Sotomayor, J., concurring).

2015 Cop-arrazi 33

CONCLUSION

At first glance, outfitting police officers with body cameras seems like a great way to curb police misconduct. However, body camera studies reveal that the only consistent result is a reduction in citizen complaints. Not only do body cameras have less of a positive impact than expected, they implicate Fourth Amendment privacy concerns because they have the ability to capture the intimate details of an individual’s home and everyday life. Accordingly, individuals should have an expectation of privacy that their movements, conversations, and daily conduct will not be permanently memorialized by an officer wearing a body camera.

Documents

Blaes: Cop-arrazi