COURT UPHOLDS USE OF BODY CAMERA BY CI IN SUSPECT’S RESIDENCE
by Brian S. Batterton, Attorney
©2016 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On February 1, 2016, the Seventh Circuit Court of Appeals decided the United States v. Thompson [i], which serves as instructive concerning the law related to a confidential informant wearing a body camera while engaged in a controlled drug buy inside the drug dealer’s residence. The relevant facts of Thompson, taken directly from the case, are as follows:
Investigators enlisted the informant to arrange and carry out a drug transaction in La Crosse, Wisconsin. The informant called a telephone number investigators knew to be associated with the Knox brothers. (The police were investigating the four Knox brothers for drug-related crimes and had identified the apartment from which they were dealing drugs.) The informant told the male who answered the phone that he had four bills—$400—and wanted to buy drugs. The man on the other end of the line told the informant to come over. Investigators equipped the informant with three devices: an audio-video recorder positioned at neck height (commonly referred to as a "button cam"); an audio-video recorder that stayed at waist height (the camera appears to be attached to a set of keys); and an audio recorder. Investigators also gave the informant $400 in marked bills.
The video recordings showed what happened next. The informant approached the apartment building where the transaction was set to take place and knocked on the door of Apartment 4. Thompson opened the door and invited the informant into the apartment. The informant handed Thompson $400. Thompson turned and walked across the room to what the informant thought was the bathroom. Thompson cracked open the door, and reached inside. A person inside the bathroom handed an item to Thompson.
At the same time, another man in the living room told Thompson that he was leaving. Before he departed he turned on the microwave. He told Thompson to "let that shit cook all the way" and to ice it down and let it cool after the microwave stopped. The man then left the apartment.
A short while later, Thompson handed the informant what he said was "twelve." The informant then left the apartment.
Afterward when the police officers discussed the encounter with the informant, he added several details not captured on video or audio. He said he had heard two men in the bathroom when Thompson opened the door and passed the $400 inside. What Thompson had received in return, the informant explained, was a sandwich bag holding several smaller plastic bags of crack, from which he removed 12. (Lab tests confirmed that the smaller bags contained a total of 2.6 grams of crack.) The informant also said that the item placed in the microwave was a large "soup bowl" filled halfway with what he believed to be cocaine. The informant also saw a box of baking soda sitting next to the microwave. The informant believed that the man was cooking crack in the apartment.
At no point during the transaction did the informant move from the spot where he was standing directly inside the front door. From that vantage point the entire living room and kitchen, as well as the bathroom door, were within sight of the informant and his two video cameras. Two other doors, both open, led off the living room, but the videos are too grainy to see inside those rooms, and the informant did not mention what, if anything, he could see through those doorways.
After the informant returned from the apartment, one of the investigators applied to a state judge for a search warrant. The officer relayed what the informant had told him during the debriefing. The officer disclosed the fact that the encounter was recorded on video, but recounted only the informant's observations rather than the content of the videos. Nothing in the record indicates that the state judge watched those videos before issuing the search warrant. The search warrant was executed shortly after it was issued, and 8.3 grams of crack were found in the apartment. Thompson was arrested at the scene. [ii]
Thompson was subsequently charged under federal law with violations related to selling narcotics. He filed a motion to suppress the video recordings made by the confidential informant during the controlled buy. The district court denied the motion and Thompson pleaded guilty with the right to appeal the denial of the motion to suppress. He then filed a timely appeal with the Seventh Circuit Court of Appeals.
On appeal, Thompson raised two arguments. First, he stated that the confidential informant (CI) was essentially a trespasser in his residence when he used a body camera because Thompson did not give him permission to do so; therefore, the CI exceeded the scope of his “license” to be in the residence. Second, Thompson argued that making the video recordings violated his reasonable expectation of privacy under the Fourth Amendment because the information revealed was not voluntarily disclosed.
The court of appeals sought to address each of Thompson’s arguments. First, they addressed whether the CI exceeded the scope of his “license” to enter Thompson’s residence when he entered and recorded with the body camera. The court noted that:
A search occurs either when the government physically intrudes without consent upon "'a constitutionally protected area in order to obtain information,'" Jones, 132 S. Ct. at 951 (quoting United States v. Knotts, 460 U.S. 276, 286 (Brennan, J., concurring), or "when an expectation of privacy that society is prepared to consider reasonable is infringed," United States v. Karo, 468 U.S. 705, 712 (1984) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). [iii]
The crux of Thompson’s argument was that, while he did willingly allow the CI into his residence for the purpose of a drug purchase, he did not consent to the CI making a video recording. As such, he exceeded his license and therefore, “physically intruded without consent” into his residence. He argued that this was similar to the Supreme Court’s holding in the Florida v. Jardines [iv] in which the court held that an officer exceeded the scope of permission that society was willing to recognize when he took his narcotics K9 onto Jardines’ front porch for the purpose of sniffing for drugs. The Seventh Circuit disagreed that Thompson’s case was analogous to Jardines’ and stated:
Thompson's reliance on Jardines is unconvincing. It is firmly established that the government may use informants and that an informant's failure to disclose his true identity does not render consent to his presence invalid. See Hoffa v. United States, 385 U.S. 293, 302 (1966); Lewis v. United States, 385 U.S. 206, 208-09 (1966); United States v. Scherer, 673 F.2d 176, 182 (7th Cir. 1982). Moreover, "[t]he mere purpose of discovering information in the course of engaging in ... permitted conduct does not cause it to violate the Fourth Amendment." Jardines, 133 S. Ct. at 1416 n.4 (internal quotation marks and citation omitted); see Kyllo v. United States, 533 U.S. 27, 32 (2001) ("[V]isual observation is no 'search' at all."). And when the informant discovers information from where he is lawfully entitled to be, the use of a recording device to accurately capture the events does not vitiate the consent or otherwise constitute an unlawful search. See Jones, 132 S. Ct. at 952 (citing On Lee v. United States, 343 U.S. 747, 751-52 (1952), for the proposition that no search or seizure occurs "where an informant, who was wearing a concealed microphone, was invited into the defendant's business"); Lopez v. United States, 373 U.S. 427, 439 (1963) (explaining that recording by undercover agent is permissible where "the device was not planted by means of an unlawful physical invasion ... and it neither saw nor heard more than the agent himself"); United States v. Eschweiler, 745 F.2d 435, 438 (7th Cir. 1984) ("We know from Lopez that in order to be effective the consent did not have to extend to [the informant's] being wired."). [v] [emphasis added]
The court also noted that the Second, Fifth, and Ninth Circuit Courts of Appeal have previously held that covert video surveillance by a CI does not violate a person’s reasonable expectation of privacy under the Fourth Amendment. [vi]
In consideration of the principles above, the Seventh Circuit stated that since Thompson invited the CI into his apartment for the purpose of conducting a drug transaction, the informant did not see, hear or record anything that was not part of that transaction. The court then held that the mere recording of the CI’s observations on video did not transform the CI’s consensual entry into the apartment into a search.
The Seventh Circuit then addressed Thompson’s second issue particularly that the videos constituted a search because he had a reasonable expectation of privacy under the Fourth Amendment in the information that was captured on video. Regarding this argument, the court stated:
This argument is frivolous. The expectation of privacy does not extend to "[w]hat a person knowingly exposes to the public, even in his own home or office." Katz, 389 U.S. at 351; see Scott, 731 F.3d at 664. Nor does a person have a privacy interest in what he voluntarily discloses to an informant. See Hoffa, 385 U.S. at 300-02; United States v. White, 401 U.S. 745, 749 (1971) ("[H]owever strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities."). Thus, once Thompson invited the informant into the apartment, he "forfeited his privacy interest in those activities that were exposed to [the informant]." Davis, 326 F.3d at 366; see Wahchumwah, 710 F.3d at 867; Brathwaite, 458 F.3d at 380-81; see also United States v. Lee, 359 F.3d 194, 201 (3d Cir. 2004) ("The principle underlying the governing Supreme Court cases is that if a defendant consents to the presence of a person who could testify about a meeting and is willing to reveal what occurs, the defendant relinquishes any legitimate expectation of privacy with respect to anything the testimony could cover."). [vii] [emphasis added]
The court then stated that the video recording in Thompson’s case captured nothing more than what the informant could see himself. As such, Thompson had no reasonable expectation of privacy in the areas of his residence captured on camera.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 15-2008 (7th Cir. Decided February 1, 2016)
[ii] Id. at 2-4
[iii] Id. at 7
[iv] 133 S.Ct 1409 (2013)
[v] Thompson at 8
[vi] Id. at 6 (see United States v. Wahchumwah, 710 F.3d 862, 866-68 (9th Cir. 2013); United States v. Brathwaite, 458 F.3d 376, 379-81 (5th Cir. 2006); United States v. Davis, 326 F.3d 361, 364-67 (2d Cir. 2003).
[vii] Id. at 9-10