“My Circuits Gleam”: A Fourth Amendment Query

A legal question for Fourth Amendment lawyers out there:

It’s settled law that if you’re in a Terry stop, you have a duty to comply with the orders of the officer who stops you. Likewise, if you receive a summons or citation from court, you’re obliged to respond. Etc.

But suppose that you (somehow) discover a listening/video device planted or inserted in or on an object that would ordinarily be protected by the Fourth Amendment, e.g, your car, your home, your computer, your phone. You surmise that the device was put there by the government in order to spy on you–but can plausibly assert (whether truthfully or not) that you don’t know for sure who put it there. Are you obliged to “comply” with government surveillance by analogy with a Terry stop? In other words, are you obliged to let government surveillance continue without interference after you’ve discovered that it’s taking place? Or can you destroy or disable an A/V device on the grounds that no officer was present to give you an order to comply with anything?

If you do destroy/disable the device, and the device was there through a procedurally correct search warrant, can you be held criminally liable for undermining the government’s attempt to surveil you? There is, after all, no way for the person under surveillance to know that the surveillance in question had the authority of a warrant.

My potentially archaic terminology of a “listening/video device” conjures up Cold War imagery of “bugs,” but I really mean: any discoverable form of electronic surveillance (e.g., a GPS device that you find attached to your car). The issue overlaps with encryption law, but encryption pre-empts surveillance before it takes place, rather than disabling surveillance that’s currently under way–and I’m thinking about the latter. The issue I have in mind strikes me as slightly more analogous to possession of a radar-detector than to the use of encryption, but that analogy breaks down pretty quickly as well.

Hence the question, as it seems a distinctive sort of case. The issue is not addressed in the very basic criminal procedure textbook I use, Matthew Lippman’s Criminal Procedure: the textbook assumption seems to be that electronic surveillance almost always goes undiscovered by the target. (I own the second edition of the book [2013], not the most recent one.)

Analogous issues may seem to arise for physical surveillance, but I don’t think they do: for the most part, if you’re under physical surveillance out in public space, you’re in plain view: you can act as you please (within the normal limits of the law), and so can the government. In that case, you have the right to go out of plain view, in which case they have the right to search or seize you if they have reasonable suspicion that you’re committing a crime. But that’s just a Terry stop, so it raises no new issues.

I’ve been surveilled twice by drone (by Israeli rather than American authorities). I’ve always wondered what would have happened, legally speaking, if I’d found a way to knock the drone out of commission, and pretend that I had no idea who had sent it. Of course, practically speaking, I kind of know what would have happened.

(Thanks to John Semel for the link to the GPS story above, and for some helpful comments on Facebook. And apologies for the weird spacing. Just a bug in the program, I guess….)

One thought on ““My Circuits Gleam”: A Fourth Amendment Query

  1. Pingback: The Fourth Amendment and Electronic Surveillance: A Puzzle | Khawaja's Phil/Crim 380 Blog

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