Posted On: December 31, 2012 by Marc Neff

Police Can Record Video Inside Your Home Without A Warrant

In United States v. Wahchumwah, 2012 U.S. App. LEXIS 24296 (9th Cir. Nov. 27, 2012), Defendant contended that his Fourth Amendment rights were violated when an undercover agent who was invited into his home used a concealed audio-video device to record an illegal transaction defendant conducted in his home.

United States Fish and Wildlife Service agents began an undercover investigation of Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero began developing a rapport with Wahchumwah in April 2008, at a powwow in Missoula, Montana. Romero claimed to have an interest in eagle feathers, and showed Wahchumwah a Golden Eagle tail he had brought with him. Later that evening, Romero bought a set of eagle wings from Wahchumwah for $400.

On October 7, 2008, Romero sent Wahchumwah a text message stating that he would be visiting family who lived near Wahchumwah the following week and would like to stop by Wahchumwah's home. Wahchumwah agreed, and a week later Romero visited Wahchumwah in his residence wearing a concealed audio-video recording device. During the visit, Wahchumwah showed Romero a blue spiral notebook containing a number of eagle plumes. Romero examined the plumes and purchased a pair for $100. During the visit, Wahchumwah mentioned to Romero that Wahchumwah had previously bought eagle tails from a friend.

On March 11, 2009, a team of Fish and Wildlife Service agents executed a search warrant on Wahchumwah's home and its outbuildings. Wahchumwah was arrested and later convicted by a jury.

Wahchumwah appealed, contending that his Fourth Amendment rights were violated when the agent recorded the secret video. The Court of Appeals disagreed, noting that the Fourth Amendment's protection did not extend to information that a person voluntarily exposed to a government agent, including an undercover agent. The Court wrote, “When Wahchumwah invited Agent Romero into his home, he forfeited his expectation of privacy as to those areas that were “knowingly expose[d] to” Agent Romero. Wahchumwah cannot reasonably argue that the recording violates his legitimate privacy interests when it reveals no more than what was already visible to the agent.”

If you have been charged with a crime and believe your rights may have been violated, please contact the Law Offices of Marc Neff for a confidential consultation: 215-563-9800 or via email at marc@nefflawoffices.com.