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Cop-arrazi: Why Body Cameras Are

Incompatible with the Fourth


The idea of outfitting police officers with body cameras in order to increase
officer accountability has been around for some time. Recent events have
fueled the call for outfitting officers with body cameras as our national
conversation has turned toward police accountability. Although body
cameras are primarily used as a means of preventing police misconduct,
the possibility that citizens can now be watched at all times is concerning.
In fact, body cameras conflict with Fourth Amendment principles as they
create privacy concerns for citizens in both public and private settings.
Specifically, body cameras have the ability to permanently memorialize
any encounter between a citizen and a police officer, thereby capturing the
intimate details of a citizens everyday life.

*Candidate for Juris Doctorate, New England Law | Boston (2016). B.A., Political Science,
University of Colorado at Denver (2010). Thank you to my wonderful parents and family for
all of their love and support. I would also like to thank Professor Natashia Tidwell for all of
her help and guidance. I would like to thank my colleague Ted Sisk for coming up with my
title. Lastly, I want to thank the entire New England Law Review staff for their hard work in
editing this article for publication.



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think everything and everyone should be seen. And to be seen, we need

to be watched. The two go hand in hand, said Mae, the main character
in Dave Eggers recent novel The Circle.1 The novel tells the story of a
social media company that begins to track everything and everyoneat
times through cameras that are worn around the characters necks.2 The
reaction to the statement, however, is the most important line from the
novelBut who wants to be watched all the time?3
An increasing number of police departments are outfitting their
officers with body cameras as our national conversation has turned toward
police accountability.4 Recent events, such as the officer-involved shooting
in Ferguson, Missouri, demonstrate how valuable video evidence of such
incidents can be.5 The very different accounts of the circumstances
surrounding Michael Browns death and the perceived unwillingness of
the St. Louis Police Chief to believe witnesses over the officer demonstrate
this value.6 Other officer-involved killings7 and grand jury failures to indict
the officers involved, have further fueled the call for greater police
Although body cameras are primarily used as a means of preventing
police misconduct, the possibility that citizens can be watched at all times
is troubling.9 This Note argues that body cameras conflict with Fourth


See generally id.
3 See id. at 485.
4 Daniel J. Gross, Use of Body Cameras in Law Enforcement Surging in Wake of Ferguson
Shooting, GOUPSTATE (Jan. 3, 2015, 6:05 PM),

5 See Martina Kitzmueller, Are You Recording This?: Enforcement of Police Videotaping, 47
CONN. L. REV. 167, 178 (2014).
6 See id.
7 See Jamelle Bouie, Shoot First: When Cops First Instinct Is to Use Force, We Shouldnt Be
Surprised that People Will Die, SLATE (Dec. 4, 2014 3:55 PM),
partments_must_explain.html (discussing Eric Garners death and other incidents of police
escalation of force that lead to death).
8 See Gross, supra note 4.
9 See J. David Goodman, New York Police Officers to Start Using Body Cameras in a Pilot
Program, N.Y. TIMES (Sept. 4, 2014),




Amendment privacy principles. Part I provides a background on police

body camera programs and discusses results from jurisdictions that have
implemented such programs. Part II provides a background on relevant
Fourth Amendment principles. Part III argues that body cameras implicate
Fourth Amendment privacy concerns because they have the ability to
capture, and intrude upon, the intimate details of an individuals life.


Filming police officers during the course of their official duty is an

important means of holding government officials accountable. 10 The
availability of new technology has led to an increasing number of police
departments outfitting their officers with dashboard and body cameras.11
Such video recording devices, particularly body cameras, provide
important video evidence: documenting police misconduct and protecting
officers from false allegations.12 Although sometimes shocking, video
evidence of officer-involved shootings is helpful in determining whether
an officer engaged in any wrongful conduct.13
Recent developments have brought the discussion of filming police
officers to the forefront of our society.14 While not new, programs requiring
police officers to wear body cameras are becoming increasingly popular.15
In fact, many people are calling for widespread implementation of such
programs.16 Body cameras prevent police wrongdoing while also
protecting officers who are falsely accused.17 For instance, the video footage
can offer important evidence in he-said she-said encounters with the


See Glik v. Cunniffe, 655 F.3d 78, 8283 (1st Cir. 2011).
Kitzmueller, supra note 5, at 167, 169 (discussing video footage captured from an officers
head camera showing the fatal shooting of a homeless person by Albuquerque police officers).
Without the video it is unlikely that the incident could have been recreated as completely and
accurately. Id.


See id. at 167.

See id. at 169.
14 See Bouie, supra note 7; Gross, supra note 4.
15 See Matt Stroud, The Big Problem with Police Body Cameras, BLOOMBERG BUS. WK. (Jan. 15,
2015, 8:22 AM),
16 See German Lopez, Police Body Cameras, Explained, VOX (July 30, 2015, 10:35 AM),

17 See generally Goodman, supra note 9 (noting studies have suggested their use reduces
both citizen complaints and officers use of force).



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A. Body Camera Programs: Benefits and Results from Programs

Instituted Thus Far
The principle benefits associated with recording police activity are:
ensuring accountability and transparency, reducing complaints against
officers, and resolving officer-involved incidents.19 These categories are not
mutually exclusive, as the idea of increasing officer professionalism affects
all three categories.20 A Department of Justice report identifies a major
benefit associated with body cameras: they help prevent issues from
arising in the first place.21 This is accomplished by: increasing officer
professionalism, helping evaluate officer performance, and creating a
vehicle to identify and address problems within police departments. 22
Recording officers actions increases professionalism by forcing officers to
rigorously follow their guidelines when dealing with citizens, and even
suspects.23 Additionally, body cameras are said to increase accountability
and transparency because there is a video record of the officers encounter
with the public.24 The result is that agencies that generally handle police
officer complaints receive fewer complaints when there is video record of
the interaction.25
Despite recent events bringing the body camera discussion to the
forefront of our society, the idea of outfitting police officers with cameras is
not new.26 In fact, various jurisdictions in the United States are already
experimenting with the technology.27 As early as 2010, police departments
in Cincinnati, Ohio and San Jose, California, experimented with outfitting
officers with small cameras worn on the officers heads.28
20 See id. (explaining that an increase in officer professionalism from the use of body
cameras resulted in fewer officer complaints).

23 David A. Harris, Picture This: Body-Worn Video Devices (Head Cams) As Tools for Ensuring
Fourth Amendment Compliance by Police, 43 TEX. TECH L. REV. 357, 360 (2010).

24 UNITED STATES DEPT OF JUSTICE, supra note 19, at 5. But see Melissa Gregg & Jason
Wilson, The Myth of Neutral Technology, THE ATLANTIC (Jan. 13, 2015), (stating that one reason for the reduced complaints could be that citizens
with a grievance are intimidated by the fact that police possess a record of their encounter to
which the complaining citizen has no access).

See, e.g., UNITED STATES DEPT OF JUSTICE, supra note 19, at 5.

See Harris, supra note 23, at 361 (discussing police departments in Great Britain that
began experimenting with police officers wearing cameras as early as 2005). In fact, a report





Results from Jurisdictions that Have Implemented Body

Camera Programs

The city of Rialto, California, was one of the first jurisdictions in the
country to implement a body camera program.29 The body camera program
was introduced in February 2012 and saw positive results soon after. 30
After the cameras were introduced, complaints against officers fell by over
80% as compared with the previous year.31 As part of the program, the
police department randomly assigned body cameras to various police
officers over the course of nearly 1,000 shifts. 32 Generally, members of the
public who interacted with the officers tended to be more polite when
informed they were on camera. 33 [T]here was a 60[%] reduction in officer
use of force incidents following camera deployment, and during the
experiment, the shifts without cameras experienced twice as many use of
force incidents as shifts with cameras.34 These figures demonstrate that
officers are less likely to use force when wearing the cameras. 35 The Rialto
police chief, Tony Farrar, spoke positively of the program stating, When
you know youre being watched you behave a little better . . . [a]s an officer
you act a bit more professional, follow the rules a bit better.36

issued on the subject by the U.K. Home Office found that the officers who participated in the
trials experienced significant benefits. Id.
27 See id.
28 See Russ Mitchell, Police Head Cameras Capture Action, Evidence, CBS NEWS (Apr. 14, 2010,
7:26 PM),
29 Rory Carroll, California Police Use of Body Cameras Cuts Violence and Complaints, THE
GUARDIAN (Nov. 4, 2013, 12:00 PM),

30 Id.
31 Eileen Shim, 3 Years After this City Made Cops Wear Cameras, Heres What Happened to Police
Violence, NEWS.MIC (Nov. 25, 2014),

UNITED STATES DEPT OF JUSTICE, supra note 19, at 5.

Carroll, supra note 29. It is not clear whether the officers in Rialto were required to inform
CAMERAS ON POLICE USE-OF-FORCE, available at (explaining the methodology and the way the study was
conducted, however, nothing in the study states that officers were required to inform
members of the public they were being recorded).


UNITED STATES DEPT OF JUSTICE, supra note 19, at 5.

See Carroll, supra note 29.
36 Id.


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A similar one-year pilot program was instituted in Mesa, Arizona, in

2012.37 The Mesa Police Department outfitted fifty officers with body
cameras and created a control group with fifty officers not wearing the
cameras.38 The results, again, were promising: during the first eight months
the non-camera officers received nearly three times as many complaints as
the officers with cameras.39 Additionally, the officers outfitted with the
cameras received 45% fewer complaints, including 75% fewer use of force
complaints, as compared with the previous year when the officers had not
been wearing cameras.40 The study also found that officers equipped with
cameras were involved in far fewer stop-and-frisks and arrests.41 Officers,
aware they were being filmed, likely put more thought into whether there
was reasonable suspicion in a stop-and-frisk situation and whether there
was probable cause for an arrest. 42 On the other hand, the officers outfitted
with cameras wrote significantly more tickets, likely because they were
concerned about the repercussions of not issuing a ticket where video
footage showed a violation.43

Jurisdictions that Have Recently Decided to Implement

Body Camera Programs

Last fall the New York City Police Department began a body camera
pilot program with the intention of eventually outfitting its entire force, the
largest in the nation, with the technology.44 The program consisted of
deploying sixty cameras in five high-crime precincts.45 Interestingly, the
City was actually ordered to implement such a program by a federal judge
as remedial action for the Citys unconstitutional stop-and-frisk policy.46

See UNITED STATES DEPT OF JUSTICE, supra note 19, at 5.

39 Id. at 6.
40 Id.
41 Justin T. Ready & Jacob T.N. Young, Three Myths About Police Body Cams, SLATE (Sept. 2,
2014, 12:54 PM),

body_cams _myths_about_police_body_worn_recorders.html.
42 Id.
43 Id.
44 Goodman, supra note 9.
45 Id.
46 See Floyd v. City of New York, 959 F. Supp. 2d 540, 562, 660 (S.D.N.Y. 2013) (determining
that New York Citys stop-and-frisk policy violated the Fourth and Fourteenth Amendments
and ordering the City to implement a body camera program). In discussing why a body
camera program would serve as a good remedy, Judge Scheindlin stated:
In making these decisions I note that evaluating a stop in hindsight is an
imperfect procedure. Because there is no contemporaneous recording of




Despite this order, the City stated that it was proceeding both
independently and unilaterally because the issue was too important to
Similarly, Chicago recently decided to implement a body camera pilot
program.48 The Chicago Police Department intended to evaluate the
program after a forty-five to sixty day period.49 The program is said to be a
cornerstone of the Mayors anti-crime agenda.50 Officers will be instructed
to turn their cameras on during high-risk situations as well as during
routine stops.51 In fact, the hope is that the cameras will record a wide
range of police activity from investigatory and traffic stops, to foot and
vehicle pursuits, and simple routine calls.52
Additionally, Los Angeles recently purchased 7,000 body cameras for
widespread use amongst its police force.53 As mentioned above, body
camera programs are being implemented more and more frequently, but
Los Angeles will be the first major city to implement the cameras on a wide
scale.54 Similar to the purpose behind Chicagos plan, Los Angeles Mayor
stated that the purpose behind the effort is to repair the trust between the
community and the police department. 55 Supporters of the program claim
visual recordings of officer interactions will prevent officer misconduct and
clear officers that are falsely accused of misconduct. 56

the stop (such as could be achieved through the use of a body-worn

camera), I am relegated to finding facts based on the often conflicting
testimony of eyewitnesses. This task is not easy, as every witness has an
interest in the outcome of the case, which may
unconsciously affect the veracity of his or her testimony.

Goodman, supra note 9.

Megan Crepeau, Some Chicago Police Will Start Wearing Body Cameras in Next Two Weeks,
CHI. TRIB. (Jan. 20, 2015, 2:35 PM),

49 Id.
50 Fran Spielman, Emanuel Launches Body-Cam Pilot to Rebuild Trust Between Citizens and
Police, CHI. SUN TIMES (Jan. 20, 2015, 1:13 PM),
51 Crepeau, supra note 48.
52 Id.
53 Kate Mather & Richard Winton, LAPDs Plan for 7,000 Cameras Comes with Challenges, L.A.
TIMES (Dec. 16, 2014, 7:14 PM),

See id.
See id.
56 Kate Mather, LAPD Moves One Step Closer to On-Body Cameras for Officers, L.A. TIMES


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II. Relevant Fourth Amendment Principles

The Fourth Amendment commands that people shall be free from
unreasonable searches and seizures, and provides that warrants shall only
be issued upon probable cause.57 Although the right to privacy is not
explicitly mentioned in the Constitution, it is alluded to in several Bill of
Rights provisions, especially the Fourth Amendment. 58 The Fourth
Amendment does not grant a general right of privacy, but does protect an
individuals privacy by prohibiting certain types of governmental
intrusion.59 Picking up on this point, the Supreme Court has stated the
Fourth Amendment protects people, not places, and whatever a person
seeks to preserve as private, even in an area accessible to the public, may
be constitutionally protected.60 Thus, the Fourth Amendment provides
individuals with a certain level of privacy protection when they are in
public.61 In order for the Fourth Amendment protections to attach,
however, there must be some state action that constitutes a search or
seizure within the meaning of the Fourth Amendment. 62 Justice Harlans
concurrence from Katz v. United States embodies the test courts use for such
an inquiry todayan individual must exhibit an actual (subjective)
expectation of privacy, and that expectation must be one that society
recognizes as reasonable.63

(Nov. 4, 2014, 6:49 PM),


U.S. CONST. amend. IV.

See, e.g., Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (stating that various Bill of
Rights provisions create zones of privacy). These zones of privacy include: the Third
Amendments command against quartering soldiers during peace time, the Fourth
Amendments affirmation that people shall be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, the Fifth Amendments protection
against self-incrimination, and the Ninth Amendments statement that rights enumerated in
the Constitution shall not be used to deny the people other non-enumerated rights retained by
the people. Id.


Katz v. United States, 389 U.S. 347, 350 (1967).

Id. at 351.
61 See id.
62 Wayne D. Holly, The Fourth Amendment Hangs in the Balance: Resurrecting the Warrant
Requirement Through Strict Scrutiny, 13 N.Y.L. SCH. J. HUM. RTS. 531, 536 n.22 (1997) (While
reasonableness is certainly central to Fourth Amendment analysis, the threshold Fourth
Amendment inquiry is whether a search has occurred within the meaning of the
63 Id. at 361 (Harlan, J., concurring). In Katz, the state was permitted to introduce evidence
of a defendants phone conversation that was overheard by FBI agents who had attached an
electronic listening device outside a phone booth. Id. at 348. The Court determined that the




A. Expectation of Privacy in Words Conveyed to Third Persons

Generally, individuals have no expectation of privacy in public
conversations capable of being overheard. 64 Likewise, individuals have no
expectation of privacy in words conveyed to third persons that are
ultimately turned over to law enforcement. 65 For example, in On Lee v.
United States, the Supreme Court held that an informants electronic
transmission of statements to a nearby narcotics agent was not a search. 66
The Court reasoned that although a transmitter device was used, the effect
of such a device was the same as if the agent had simply listened to the
defendants conversation through an open window.67 The defendant
assumed the risk of what he was saying by talking confidentially and
indiscreetly with one he trusted.68 Similarly, in Lopez v. United States, the
defendant consented to a known IRS agents presence in his office and
subsequently made incriminating remarks that were recorded by the
agent.69 On the defendants Fourth Amendment claim, the Court stated that
the agents recording merely served as a memorialization of the
conversationa conversation to which the agent could, and did, testify.
According to the Court, the risk that [the defendant] took in offering a
bribe to [the agent] fairly included the risk that the offer would be
accurately reproduced in court, whether by faultless memory or
mechanical recording.70
Likewise, Hoffa v. United States addressed whether the Fourth
Amendment protects the contents of an individuals conversation made to
an informant in a hotel room.71 The defendant invited the informant into
the hotel room on several occasions, and the informant relayed the details
of the conversations to a government agent.72 These reports and the

state action was a search within the meaning of the Fourth Amendment because the defendant
justifiably relied on an expectation of privacy when he entered the phone booth and shut the
door behind him. Id. at 353.

Donald L. Doernberg, "Can You Hear Me Now?": Expectations of Privacy, False Friends, and
the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence, 39 IND. L. REV.
253, 270 (2006) (Conversations in the open would not be protected against being overheard,
for the expectation of privacy under the circumstances would be unreasonable.).

See Hoffa v. United States, 385 U.S. 293, 302 (1966).

343 U.S. 747, 749 (1952).
67 Id. at 75354.
68 Id.
69 See 373 U.S. 427, 42931, 438 (1963).
70 Id. at 439.
71 See, 385 U.S. 293, 302 (1966).
72 Id. at 296.


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informants testimony contributed to the defendants conviction.73 The

Court determined that the Fourth Amendment was not implicated in this
case because the defendant was not relying on the security of the hotel
room; rather, he was relying upon his misplaced confidence that [the
informant] would not reveal his wrongdoing.74 It was further stated that
no court has ever expressed the view that the Fourth Amendment protects
a wrongdoers misplaced belief that a person to whom he voluntarily
confides his wrongdoing will not reveal it.75
Lastly, in United States v. White, the defendant was monitored through
a radio transmitter device carried by an informant, and these conversations
were used as evidence against the defendant at trial.76 The Court of
Appeals reversed the district court holding that the Fourth Amendment is
violated when a conversation is recorded and instantaneously broadcasted
to government agents.77 The Supreme Court, however, determined that the
proper inquiry was whether the defendant had a reasonable expectation of
privacy when conversing with the informant. 78 According to the Court, the
prior holdings in Hoffa and Lopez are clearan individual engaged in
illegal activity assumes the risk that the information revealed to a
companion will neither now, nor later, be revealed to law enforcement. 79 In
dissent, Justice Harlan noted that permitting law enforcement to
instantaneously record conversations would cause individuals to limit
what they say to one another in public, and reduce spontaneity in everyday
conversations.80 According to Justice Harlan, such spontaneity is important
one may count on the obscurity of his remarks, protected by the
very fact of a limited audience, and the likelihood that the listener
will either overlook or forget what is said, as well as the listeners
inability to reformulate a conversation without having to contend
with a documented record. 81

B. Expectation of Privacy in Public Movements

Individuals also have an expectation of privacy in their public


Id. at 302.
75 Id.
76 401 U.S. 745, 74647 (1971).
77 Id. at 747, 749.
78 Id. at 749, 752.
79 Id. at 75253.
80 Id. at 787 (Harlan, J., dissenting).
81 Id. at 788 (Harlan, J., dissenting).




movements and the places they visit.82 The visual surveillance of a person
in public generally does not implicate the Fourth Amendment because
there is no expectation that ones public movements are to remain private.83
Whether extended visual surveillance and electronic tracking violate
expectations of privacy is another question, and one that the Supreme
Court addressed for the first time in United States v. Knotts.84 The Court
held that visual surveillance and monitoring through an electronic tracking
device did not constitute a search within the meaning of the Fourth
Amendment.85 The Court reasoned:
A person travelling in an automobile on public thoroughfares has
no reasonable expectation of privacy in his movements from one
place to another. When [the defendant] traveled over the public
streets he voluntarily conveyed to anyone who wanted to look
the fact that he was traveling over particular roads in a particular
direction, the fact of whatever stops he made, and the fact of his
final destination when he exited from public roads onto private

Likewise, in United States v. Jones, the Court addressed whether

attaching a GPS monitoring device to a defendants car constituted a search
within the meaning of the Fourth Amendment. 87 The Court held that
attaching the GPS to the defendants car constituted a search because it was
a trespass.88 While the majority did not analyze the case under the Katz
expectation of privacy standard, five justices addressed whether
individuals have an expectation of privacy in preventing the government
from monitoring their movements in public.89 Justice Alitos concurrence,
joined by Justices Ginsburg, Breyer, and Kagan, determined that the longterm GPS monitoring of the defendants car was a search because societys
expectation has been that law enforcement agents and others would not
and indeed, in the main, simply could notsecretly monitor and catalogue
every single movement of an individuals car for a very long period.90 In a


See United States v. Jones, 132 S. Ct. 945, 950 (2012) (stating the governments argument
that the defendant did not have a reasonable expectation of privacy in the places he visited
because he was driving on public roads visible to all).
2.7(g), at 101617 (5th ed. 2014).

Id. 2.7(g), at 101718.

Id. 2.7(g), at 1018.
86 United States v. Knotts, 460 U.S. 276, 28182 (1983).
87 United States v. Jones, 132 S. Ct. 945, 949 (2012).
88 Id. at 949, 95051.
89 See LAFAVE, supra note 83, 2.7(g), at 1018 & n.271.
90 Jones, 132 S. Ct. at 964 (Alito, J., concurring).


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separate concurrence, Justice Sotomayor noted that both long-term and

short-term GPS monitoring could violate expectations of privacy. 91 This is
so because GPS monitoring generates a precise, comprehensive record of
a persons public movements that reflects a wealth of detail about her
familial, political, professional, religious, and sexual associations.92

III. Body Cameras Are Incompatible with Fourth Amendment
The Fourth Amendment protects a certain amount of privacy and
prohibits unwarranted governmental intrusion, but it does not grant a
general right of privacy.93 Police worn body cameras designed to capture a
range of encounters with the public will violate citizens expectations of
privacy.94 The body cameras create privacy concerns for individuals in both
public and private settings.95 The search threshold inquiry is important
when determining whether an individual memorialized by an officers
body camera is entitled to Fourth Amendment protection.96 Body cameras
will record a significant amount of innocent activity, thereby affecting
individual privacyespecially when officers enter an individuals home.97
An officer capturing video evidence of an individual engaged in criminal
activity could constitute a search within the meaning of the Fourth
Amendment.98 Under Katz, if an individual is exhibiting an actual
expectation of privacy, and that expectation is objectively reasonable, an


Id. at 955 (Sotomayor, J., concurring).

Id. (Sotomayor, J., concurring).
93 See Katz v. United States, 389 U.S. 347, 350 (1967).
94 See Crepeau, supra note 48 (explaining that body cameras will capture a range of police
activity including: investigatory stops, traffic stops, foot and vehicle pursuits, and even
routine calls).
95 Matt Pearce, Growing Use of Police Body Cameras Raises Privacy Concerns, L.A. TIMES (Sept.
27, 2014, 6:00 AM),

96 See Afsheen John Radsan, The Case for Stewart over Harlan on 24/7 Physical Surveillance, 88
TEX. L. REV. 1475, 1475 (2010) (arguing that physical surveillance by police officers can reach
the point where it becomes a search).
FOR ALL 3 (2013), available at
98 See, e.g., Katz, 389 U.S. at 350 (stating that Fourth Amendment protects against certain
types of government intrusion).




officer equipped with a body camera conducts a search. 99 Such a search

must comply with other Fourth Amendment strictures, such as probable
cause and reasonableness.100
A. Privacy Expectations When an Officer Outfitted with a Body Camera
Enters an Individuals Home
An officer outfitted with a body camera entering a home creates
serious privacy implications.101 A police officer can enter a home for a
variety of reasons including consensual entry or in response to a domestic
violence call.102 Individuals have a heightened privacy interest in the
sanctity of their homes because physical entry into ones home is the chief
evil the Fourth Amendment protects against. 103 More to the point, [i]t is
accepted at least as a matter of principle, that a search or seizure carried
out on a suspects premises without a warrant is per se
unreasonable . . . .104 In fact, a search warrant fundamentally protects
individuals interest in the privacy of their homes against unjustified
government intrusion.105 An officer outfitted with a body camera who
enters an individuals home, even for a benign purpose, will intrude on
that individuals privacy because the officer could reproduce the intimate
details of the home with complete accuracy.106
Under the plain view doctrine, an officer is permitted to seize evidence
of a crime without a warrant if the officer is lawfully present in a place
where the object can be seen, and the incriminating nature of the object is
immediately apparent.107 However, an officer lawfully entering an

99 See Marc Jonathan Blitz, Video Surveillance and the Constitution of Public Space: Fitting the
Fourth Amendment to A World That Tracks Image and Identity, 82 TEX. L. REV. 1349, 1408 (2004)
(explaining that public video surveillance conducted by law enforcement presents
a deep threat to core liberty and privacy interests in a number of ways).

U.S. CONST. amend. IV.

See STANLEY, supra note 97.
102 Id.
103 United States v. United States Dist. Ct., 407 U.S. 297, 313 (1972).
104 Coolidge v. New Hampshire, 403 U.S. 443, 47475 (1971).
105 Steagald v. United States, 451 U.S. 204, 213 (1981) ([a] search warrant . . . is issued upon
a showing of probable cause to believe that the legitimate object of a search is located in a
particular place and therefore safeguards an individual's interest in the privacy of his home . .
. against the unjustified intrusion of the police).


Cf. Quin M. Sorenson, Losing A Plain View of Katz: The Loss of a Reasonable Expectation of
Privacy Under the Readily Available Standard, 107 DICK. L. REV. 179, 17980 (2002) (explaining
that new technologies may one day allow the government to reproduce intimate details of a
persons home without actually seizing any items).

Horton v. California, 496 U.S. 128, 13536 (1990).


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individuals home with an active body camera may capture incriminating

details without those details being immediately apparent. 108 In fact, a
Department of Justice report on body cameras specifically states that
[m]any law enforcement agencies have taken the position that officers
have the right to record inside a private home as long as they have a legal
right to be there.109 Because body camera footage remains under police
department control, there is nothing to stop an officer from viewing the
footage in an in-depth manner at a later time to identify incriminating
details.110 Therefore, permitting officers to use body cameras while entering
an individuals home is incompatible with the plain view doctrine.111
Likewise, body cameras may embolden officers to enter an individuals
home in a pretextual manner in order to capture incriminating evidence on
film.112 The exigent circumstances exception to the warrant requirement
may serve as a vehicle for such pretextual searches.113 It is easy to imagine a
scenario in which an officer develops probable cause outside of an
individuals home leading to a valid arrest. 114 From this point, the officer
may arguably search the individuals home under an exigent
circumstances theory.115 The scope of such a search is substantially limited

108 See UNITED STATES DEPT OF JUSTICE, supra note 19, at 15 ([When] enter[ing] a home in
response to a call for service, pursuant to a valid search warrant, or with consent of the
resident, officers can record what they find inside.).

Id. (emphasis added).

See id. at 1719 (explaining that if footage is deemed evidentiary the police
department generally keeps the footage, which is not subject to public disclosure, until the
investigation is over).

111 This situation is similar to Arizona v. Hicks, in which the Court held that the
incriminating nature of a stolen speaker was not immediately apparent because the officer
had to move the speaker to reveal the identification number. 480 U.S. 321, 328 (1987).
112 Cf. Steagald v. United States, 451 U.S. 204, 215 (1981) (stating that an officer may use an
arrest warrant as a pretext for entering an individuals home with only a reasonable suspicion,
rather than probable cause, that criminal activity is taking place).
113 See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 299 (1967) (stating that the scope
of an exigent circumstances search must be reasonably necessary to prevent the danger of the
suspect either resisting or escaping).

This scenario is similar to Vale v. Louisiana, in which officers were conducting

surveillance outside an individuals home, and after witnessing the individual engage in an
apparent drug transaction, the officers arrested the individual and subsequently searched his
home. 399 U.S. 30, 3233 (1970).
115 While the Court in Vale v. Louisiana held that the arrest on the street did not create an
exigent circumstance, that holding could very well be confined to specific facts of the case. See
id. at 34 (stating that the exigent circumstances destruction of evidence rationale was
inapplicable because the officers were aware that there was no one currently in the house
when the defendant was arrested).




by the exigent circumstances doctrine itself.116 However, that limited scope

would be thrown out the window if an officer equipped with a body
camera were able to record and reproduce the intimate details of the
individuals home.117 Thus, an officer outfitted with a body camera entering
a home creates serious privacy implications.118
B. Privacy Implications Associated with Officer Body Camera Use in
Public Places
Generally, individuals have no expectation of privacy in the
movements they make in public, or in the places they go while using public
roads and walkways.119 The principle is that a person voluntarily conveys
such information to anyone interested in looking.120 Body camera use by
police officers will capture more than mere information concerning where
a person is at a particular timethe cameras will capture intimate details
of a persons life.121 Additionally, an individual does not have a reasonable
expectation of privacy that the words conveyed to another will not be
turned over to law enforcement.122 While there is no reasonable expectation
of privacy in a persons public movements or conversations, there is an
expectation of privacy that a persons movements, conversations, and daily
conduct will not be memorialized in video form by a police officer. 123
The cases stating that individuals have no expectation of privacy in
their conversations are distinguishable from the way in which a body


Hayden, 387 U.S. at 299 (The permissible scope of search must, therefore, at the least, be
as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the
house may resist or escape.).

See supra note 106 and accompanying text.

See STANLEY, supra note 97, at 3. See also Matthew Feeney, Police Body Cameras Raise
Privacy Issues, CATO INST. (Feb. 12, 2015, 1:27 PM), (It is not hard to imagine a situation in which
police officers wearing body cameras enter someones home and leave without making an
arrest. Footage of that encounter could reveal embarrassing or private information about the

119 See United States v. Knotts, 460 U.S. 276, 281 (1983) (explaining that an individual
travelling in an automobile on public thoroughfares has no reasonable expectation of privacy
in his movements from one place to another.).
120 See id.
121 See United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring).
122 See Hoffa v. United States, 385 U.S. 293, 302 (1966).
123 See Blitz, supra note 99, at 1407 (explaining that a persons private life is not always
carried out in a private place, and merely because a person is in a public space does not mean
that the private details of their life are no longer private).


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camera would capture a public conversation. 124 In On Lee, the defendants

incriminating words were electronically transmitted to a nearby narcotics
agent and the Court determined that the defendant assumed the risk that
what he said would not be kept confidential.125 The conversations that
would be captured by a body camera are not the type of confidential
conversations at issue in On Lee.126 Rather, they are everyday conversations
simply revealing the personal details of an individuals life.127 While some
consider body cameras merely an extension of dashboard cameras, the
body cameras capture everything an officer sees as opposed to the limited
vantage point of a dashboard camera.128
Lopez, on the other hand, concerned a defendant who invited a known
IRS agent into his office and assumed the risk that the agent was not
recording his conversation.129 In a sense, this is similar to a scenario in
which an officer informs a member of the public that he or she is being
recorded by the officers body camera.130 In fact, the body camera program
instituted in Rialto indicated that when members of the public were
informed that they were on camera, they generally responded in a more
polite manner.131 Once they knew they were being recorded, the difference
in the way these individuals responded is instructive. 132 They changed the
way they actedby being more politemeaning they were less likely to
converse openly and in their normal manner. 133 But this is a different
situation than Lopez, because the individuals in Rialto, and people in
general, are not consenting to the officers presence.134 Rather, a police
officer has free range to approach and record individuals in public, with or
without their consent.135

124 See United States v. White, 401 U.S. 745, 75253 (1971); Hoffa, 385 U.S. at 302; Lopez v.
United States, 373 U.S. 427, 439 (1963); On Lee v. United States, 343 U.S. 747, 754 (1952).

On Lee, 343 U.S. at 749, 75354.

See id. at 75354.
127 See Blitz, supra note 99, at 1408 (explaining that public video recording could capture
intimate details of a persons life such as a medical condition or status of a personal
128 Rachel Weiner, Police Body Cameras Spur Privacy Debate, WASH. POST (Nov. 10, 2013),


See 373 U.S. at 42931, 439.

See Carroll, supra note 29.
131 Id.
132 See id.
133 See id.
134 See Lopez, 373 U.S. at 42931, 439.
135 It is not clear whether the officers in Rialto were required to inform members of the




Additionally, Hoffa concerned a defendant who invited an informant

into his hotel room on several occasions and then made incriminating
remarks to the informant that were later used against him at trial.136 The
Court explicitly stated that the Fourth Amendment does not protect
individuals engaged in illegal activity when they voluntarily confide about
such illegal activity to another person.137 The issue with a body camera is
not that it will record an individual conversing about illegal activity, but
rather that it will record individuals engaged in their everyday affairs
possibly revealing intimate details of their life.138 Video surveillance by law
enforcement generally does not violate the Fourth Amendment, but it is
not the act of video surveillance itself that is an issueit is the intimate
details of a persons life captured by a body camera that is an issue.139
Additionally, there are similarities between United States v. White and a
police officer outfitted with a body camera memorializing an individuals
public conduct.140 In White, an informant transmitted the defendants
conversationwhich took place in publicdirectly to a government
agent.141 The Supreme Court determined the instantaneous transmission of
the defendants words did not violate his expectation of privacy because
the defendant assumed the risk that information he was revealing would
not be turned over to law enforcement. 142 In dissent, Justice Harlan focused
on the chilling effect this would have on conversation in public. 143 Such a
practice by law enforcement would undermine that confidence and sense
of security in dealing with one another that is characteristic of individual
relationships between citizens in a free society.144

public they were being recorded. See generally POLICE FOUNDATION, supra note 33 (explaining
the methodology and the way the study was conducted, however, nothing in the study states
that officers were required to inform members of the public they were being recorded).

385 U.S. 293, 296 (1966).

Id. at 302.
138 See id.
139 See Blitz, supra note 99, at 1378 (2004) (explaining the courts generally consider the
Fourth Amendment inapplicable to instances where a defendant complains of video
surveillance by law enforcement); see also United States v. Taketa, 923 F.2d 665, 677 (9th Cir.
1991) (stating that [v]ideo surveillance does not in itself violate a reasonable expectation of
privacy because the police may record what they normally may view with the naked eye).
The Taketa court, however, went on to note that it is possible for an individual to create a
temporary zone[] of privacy, where they may not reasonably be videotaped. Id.


See 401 U.S. 745, 74647 (1971).

See id. at 74647.
142 Id. at 75253.
143 Id. at 787 (Harlan, J., dissenting).
144 Id. (Harlan, J., dissenting).


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This confidence and sense of security will be undermined to an even

greater extent when citizens everyday conversations are subject to being
recorded by a police officers body camera.145 Although it is permissible for
a police officer to listen in on such a conversation, the difference is that
recording the conversation creates a permanent record for law enforcement
purposes.146 A recording removes the difficulty associated with
remembering a statement, or event, and attempting to piece the
information together after the fact.147 This flows into another point Justice
Harlan made in his dissent, namely that our system of government, and
particularly the Constitution, should not impose on our citizens the risks
of the electronic listener or observer without at least the protection of a
warrant requirement.148 According to Justice Harlan, [f]or those more
extensive intrusions that significantly jeopardize the sense of security
which is the paramount concern of Fourth Amendment liberties, I am of
the view that more than self-restraint by law enforcement officials is
required and at the least warrants should be necessary.149
The risk of a video observer creates an even greater impact on a
citizens sense of security in a public area. 150 The privacy interest of
individuals in public should be protected at least to the extent that their
conversations are not subject to being recorded by video without the
protection of a warrant. 151 Lastly, as Justice Sotomayor noted in United
States v. Jones, monitoring individuals to the extent that it creates a precise
record of their movements could violate expectations of privacy even
though such monitoring takes place in public.152 Body cameras capture the
same wealth of detail about an individuals familial, political,
professional, religious, and sexual associations that Justice Sotomayor
stated could violate expectations of privacy. 153


See id. (Harlan, J., dissenting).

See Blitz, supra note 99, at 55 (arguing that public video surveillance by law enforcement
allows the authorities to sift through sensitive information about our movements and
activities. A recording transforms an ephemeral event into a permanent record.).


White, 401 U.S. at 786 (Harlan, J., dissenting).
149 Id. at 78687 (Harlan, J., dissenting).
150 See id. (Harlan, J., dissenting).
151 See id. (Harlan, J., dissenting); see also Rebecca G. Van Tassell, Walking a Thin Blue Line:
Balancing the Citizen's Right to Record Police Officers Against Officer Privacy, 2013 BYU L. REV.
183, 189 (2013) (analyzing whether an officer has a reasonable expectation of privacy to not be
recorded in public while conducting their official duty).


See 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring).

See id. (Sotomayor, J., concurring).




At first glance, outfitting police officers with body cameras seems like a
great way to curb police misconduct. However, body camera studies reveal
that the only consistent result is a reduction in citizen complaints. Not only
do body cameras have less of a positive impact than expected, they
implicate Fourth Amendment privacy concerns because they have the
ability to capture the intimate details of an individuals home and everyday
life. Accordingly, individuals should have an expectation of privacy that
their movements, conversations, and daily conduct will not be
permanently memorialized by an officer wearing a body camera.