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Peering through windows

That there has been a steady erosion of Fourth Amendment rights over the past thirty-some years long ago ceased being disputable.  So it's good to see a court step in and attempt to staunch the bleeding, as the 2nd District did last week in State v. Peterson

The facts of the case were simple.  They involved the use of a new police weapon in the war against drugs, the "knock and advise":  as the officer explained to the trial court,

a knock and advise is a procedure used by the police department to investigate drug complaints. This type of investigation is done by knocking on the door and advising the occupants that there have been complaints of drug activity and then seeking consent to search. 

This, it turns out, is a team effort; a "standard practice" is to have other officers take up positions around the sides and back of the house "to ensure that no one runs out the back or throws anything out a window."  In this case, as the officers at the front knocked on the door, those in the back approached the house, looked through the basement window, and saw someone "running down the stairs holding a glass jar cupped in both hands as if the jar was hot."  They suspected it was crack cocaine that had just been cooked, and ran into the house and down the stairs.  Turns out they were right.

The defense presented numerous witnesses to say that the windows in the basement were covered with foil, but the trial court overruled the motion to suppress, finding the witnesses not credible.  As the appellate court noted, though, the trial court "did not address the question of whether Detective House had a right to be where he was when he observed the activity in the basement that prompted the police officers to enter Peterson's residence without a search warrant."

There are a lot of cases out there which the appellate court could have relied on in upholding the search, cases holding the owner had no expectation of privacy that would have precluded somebody from looking through an open window.  In fact, the Ohio Supreme Court's decision of State v. Buzzard in February of this year upheld a search in similar circumstances:  the officer had peered through a quarter-inch crack in the door to a garage. 

To its great credit, the 2nd District went further, focusing on several California decisions which had struck down several such searches.  In one of them, the California court pretty much nailed it:  allowing the police to use what they find by going up to a house and peering through windows

too closely resembles the process of the police state, too dangerously intrudes upon the individual's reasonable expectancy of privacy, and thus too clearly transgresses constitutional principle; the prosecution cannot introduce into evidence, and the courts cannot be tainted with, that which the intrusion yields.

As I said, you may not want to break out the party hats just yet.  For every decision like Peterson, you're going to find five or more like Buzzard in which the consideration of what's a reasonable expectation of privacy gets short shrift.  In fact, it seems that court decisions on what constitutes a "reasonable expectation of privacy" are in a race to define the term downward:  the police can look anywhere, so it's not reasonable to expect that they won't. 

That was brought home to me this past week when I did some research for another lawyer on whether police need a warrant in order to place a GPS tracker on a car.  There's not a lot of law on that issue, but all that there is says that the cops don't need one.  Why?  Because of a Supreme Court case a few years back which says that one does not have a reasonable expectation of privacy about where he is when one is driving on the public highways.

There's certainly a kernel of truth to that.  Well, more than a kernel:  if I get on the road, I know perfectly well that I can encounter police on the road, and in fact they can follow me if they want.  My whereabouts are hardly secret.

But it's one thing to say that I should expect the police to be able to follow me, and another to say that it's reasonable for me to expect that there's somebody sitting in front of a giant map monitoring every move I make.  That's where that "police state" stuff comes into play.

Snaps to the 2nd District for deciding that we haven't quite reached that point yet.


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