MEMORANDUM

TO: Chief Zipperman

FROM: Assistant Chief Jimenez, Samuel

DATE: October 23, 2017

SUBJECT: Super-Body-Worn-Camera

Under the Fourth Amendment, Americans are guaranteed a certain degree of privacy through

the right to be secure in their persons, houses, papers, and effect against unreasonable searches

and seizures (Schlag 2013). Katz v. United States outlined the parameters of an unreasonable

search. Utilizing a SBWC to obtain facial recognition to scan a color photograph of a subject and

using a voice oscilloscope to record the subject’s unique voice characteristics is not a violation of

an individual’s privacy rights. However, utilizing the SBWC to get an individual’s DNA sample,

making a DNA profile of that individual, and then storing that profile in the Department’s DNA

databank would constitute a violation of an individual’s privacy right. Thus, I would not

recommend the purchase of SBWCs for the department.

The main threat towards individual privacy rights that SBWC’s create is the collection and

storing of an individual’s DNA without his or her knowledge absent an exigency, consent, or

warrant. Specific guarantees in the Bill of Rights have penumbras formed by emanations from

those guarantees that create zones of privacy (Griswold v Connecticut 1965). The United States

Constitution, through the bill of rights, implies a fundamental right to privacy. Based on

Griswold, individuals have a fundamental constitutional privacy right in their genetic material. In

Mario W. v. Kaipio, the court found that buccal swab involves the extraction of thirteen genetic
markers from the arrestee’s DNA sample that create a DNA profile effectively unique to that

individual which presents a privacy concern. Moreover, under Mario W., the taking of

defendant’s DNA violated his Fourth Amendment constitutional rights of privacy germane to

search and seizure (Begovich 2017).

The use of SWBCs also poses a threat to California’s Constitutional Right of Privacy. Privacy

is considered an inalienable right which may not be violated by the Government and/or an

individual, corporation, or other organization (Begovich 2017). In White v Davis, the California

Supreme Court articulated the principal mischiefs at which the privacy amendment was directed

to which included “government snooping” and the secret gathering of personal information,

collection and retention of unnecessary personal information by government and business

interests, the improper use of information properly obtained for a specific purpose, and the lack

of a reasonable check on the accuracy of existing records (Begovich 2017). Thus, SWBCs

violate California’s Constitutional Right of Privacy.

If the SBWCs are purchased, the policy and procedures manual should compel patrol officers

to obtain consent from each subject before activating the SBWC. Officers should obtain consent

before activating the SBWC because by doing so the department would not be held liable or be

vulnerable to lawsuits as a result of using SBWCs. Officers should also obtain consent so that

absent a warrant or exigency, evidence obtained through SBWCs can be admissible in court.

Lastly, officers should obtain consent to promote transparency and improve community relations

with the community they serve.

 References

Begovich, M. (2017, October 14). POINTS & AUTHORITIES IN SUPPORT OF MOTION TO

DESTROY DEFENDANT’S DNA SAMPLE & EXPUNGE GENETIC PROFILE (

Health & Saf. Code § 11361.8 ) . Retrieved October 17, 2017, from

https://ole.sandiego.edu/bbcswebdav/courses/LEPSL-530-

MASTER/Summer%202017%20Refresh/M7/PROP64.pdf

Griswold v. Connecticut 381 U.S. 479 (1965). (n.d.). Retrieved September 8, 2017, from

https://supreme.justia.com/cases/federal/us/381/479/case.html

Schlag, C. (2013). The New Privacy Battle: How the Expanding Use of Drones Continues to

Erode Our Concept of Privacy and Privacy Rights. University of Pittsburg Journal of

Technology Law and Policy, 1-22. Retrieved September 28, 2017, from

https://ole.sandiego.edu/bbcswebdav/courses/LEPSL-530-

MASTER/Expanding_Drones_and_Privacy.pdf.