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Video surveillance conducted by an invited visitor may be used at trial without violating the Fourth Amendment, the 2nd U.S. Circuit Court of Appeals has ruled. Extending the “firmly established” rule that audio recordings do not run contrary to the Fourth Amendment’s prohibition against unreasonable searches and seizures, the 2nd Circuit said the same rationale applies “with equal force” to video surveillance in United States v. Davis, 02-1569. Leon Davis, also known as Flash, claimed on appeal that Southern District of New York Judge Colleen McMahon should have suppressed the evidence obtained against him by a confidential informant working for the Drug Enforcement Administration. The informant, Edwardo Lorenzo, had come to Davis’ residence in Spring Valley, N.Y., and recorded his own purchase of 9.5 grams of cocaine using an audio transmitter and a portable video camera concealed in his jacket. Davis claimed the use of the video camera violated the Fourth Amendment because it was a “sense-enhancing technology” that is “not in general public use.” Judge McMahon denied the motion to suppress. Davis was found guilty following a four-day trial and was sentenced to serve 7 years and 8 months in prison. Writing for the 2nd Circuit, Judge Robert Katzmann noted that “a defendant does not have a privacy interest in matters voluntarily revealed to a government agent, including a confidential informant.” Katzmann outlined the holdings in two U.S. Supreme Court cases dealing with audio surveillance, United States v. White, 401U.S.745 (1971) and Lopez v. United States, 373 U.S. 427 (1963). In Lopez, he said, the Court found that a wire recording made by a federal agent who was in an office at the defendant’s invitation did not violate the Fourth Amendment, in part because the federal agent could have testified about the conversations. And the same view was expressed in White, he said, where the Supreme Court allowed government agents to relate a conversation they overheard while monitoring the frequency of a radio transmitter concealed by an informant. “Once Davis invited Lorenzo into his residence, Davis forfeited his privacy interest in those activities that were exposed to Lorenzo,” Judge Katzmann said. Davis, in emphasizing “sense-enhancing technology,” had tried to draw a comparison between video recording and the Supreme Court’s rejection of the use of thermal imaging devices to detect infrared radiation inside a home from outside the home in Kyllo v. United States, 533 U.S. 27 (2001). To the police, infrared radiation is a sign that a home contains high-intensity lamps for growing marijuana. CASE DISTINGUISHED But Judge Katzmann said that facts in Davis’ case were “critically distinct” from those in Kyllo. The defendant in Kyllo “did not knowingly expose the contents of the home,” he said. “Moreover, the device in Kyllo detected more than what even an invited guest could have detected with ordinary sensory perception.” The judge also noted that the camera concealed by Lorenzo did not have “enhanced magnification capabilities,” and there was no indication that “enhancement techniques” were applied to the images that were transmitted to the drug agents by the camera. Therefore, Katzmann said, the court was not deciding the “constitutionality of video surveillance conducted by an invited visitor equipped with a hidden camera with the power to depict items and details unobservable by the human eye.” Senior Judge Jon O. Newman and Judge Rosemary S. Pooler joined in the opinion. Assistant U.S. Attorneys Rosemary Nidiry and Laura Grossfield Birger represented the government. Theodore S. Green of Green & Willstatter in White Plains, N.Y., represented Davis.

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