Can the DEA Hide a Surveillance Camera on Your Land?Clarence Walker The ruling last October came in a motion to suppress the evidence obtained by the warrantless video cameras. After that ruling, the defendants, five members of the Magana family, pleaded guilty to possession with intent to distribute marijuana and now face up to life in prison and up to $10 million in fines. But as part of the plea deal, they retained their right to appeal the ruling. And their attorneys say they are prepared to take the case all the way to the US Supreme Court. In their motion, they had asked the court to suppress evidence because of the propertys locked gate and No Trespassing sign. Since the properties were heavily wooded and posted with signs, the owners were entitled to an expectation of privacy, the attorneys say. That ones action could be recorded on their own property even if the property is not within the curtilage is contrary to societys concept of privacy, said Green Bay attorney Breet Reetz, who represents Marco Magana. It all began in rural Marinette County last May, when a fishermen reported to local authorities that he had been run off the land by two men who told him fishing is closed and that he had observed trees cut down and power lines running across the property. Authorities investigated and found the property and two more adjacent properties were owned by members of the Magana family, which had purchased them months earlier. Authorities left it at that until the following month, when a logger reported that when he had gone to check on a timber stand at one of the properties, he stumbled over a marijuana cultivation operation with more than 30 plants in a 50 x 50 clearing. The DEA then was called in and entered the Maganas properties without a warrant. Agents installed video cameras that eventually captured incriminating evidence of vehicles traveling in and out of the properties. It wasnt until the DEA observed some of the men handling what believed to be marijuana did they go and request a warrant. A warrant was signed and the agents, accompanied by several local sheriff officers, executed the warrant and arrested the men at separate addresses near Green Bay. The bust was big news in Marinette County. Youve got thousands of plants, and as healthy as they look, this is a big operation, Sheriff Jerry Suave told local reporters at the time. The grow is probably the largest Ive seen, he added. Before trial, set for the fall, counsel for the Maganas filed a motion to suppress the evidence, informing the court that videos from the surveillance camera showed dates that indicated that the camera had been running for 79 consecutive hours before DEA agent Steven Curran obtained a search warrant for the property. It is undisputed that the government trespassed without a warrant upon private property with visible No Trespassing signs posted, Reetz wrote in the motion, noting that the camera had operated from July 12 to July 15, but the warrant wasnt issued until July 17. Nor were there any exigent circumstances that would have allowed officers to enter the property without a warrant. Federal prosecutors were ready with a response. Officers entering an open field is not an area enumerated as protected under the Fourth Amendment, countered Assistant US Attorney for Eastern Wisconsin James Santelle. Open fields, woods, and private lands are not persons, houses, papers, and effects protected under the Constitution. That was good enough for Eastern Wisconsin US District Court Chief Judge William Griesbach, who dismissed the defense motion and ruled that it was legal for the DEA to go onto private property without a warrant to install multiple covert digital cameras, and to use the evidence they obtain that way to obtains warrants and in court. Citing US v. Oliver, Griesbach held that the rural properties were curtilage and not protected by the Fourth Amendment. But the Maganas attorneys and other legal experts argue that even though open fields are not considered curtilage, if No Trespassing or Private Property signs are posted on the land, the property owner should still be entitled to an expectation of privacy under the law. And they are willing to take their argument to the highest court in the land. We have become a nation of men and not a nation of laws, which, is what our founding fathers didnt want us to become, Reetz said. After formal sentencing, the case heads for the US 7th Circuit Court of Appeals. If Reetz and Richards dont prevail there, it is on to the Supreme Court. If the court were to take up the case, it would once again have the opportunity to try to untangle the dilemmas that result when the Fourth Amendment runs up against new technologies, for better or worse. Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com. Please visit and support StopTheDrugWar.org to help end prohibition. linkwithin_text=Related Articles: 