Courts Aren't Buying Dispensary-Raiding Cops' 'Expectation Of Privacy' Arguments

from the 'expectation-of-privacy'-isn't-'expectation-of-not-getting-caugh dept

We recently covered the complete absurdity that is the Santa Ana police union’s legal battle to clear cops caught misbehaving (to put it lightly…) during a raid on a pot dispensary. The cops in question tore cameras out of the wall, disabled the surveillance system and then, when they thought they were “safe,” made disparaging comments about a disabled woman, ate presumably pot-laced edibles, played a few rounds of darts and generally behaved like any group of miscreants would if they felt they were unobserved.

Among the numerous laughable claims made in the union’s effort to block recordings of these actions from being used against the cops performing these actions is that the recording itself is “illegal” as the officers had an “expectation of privacy” while performing their law enforcement duties in a public areas of a publicly-accessible business.

The suit also claims the video shouldn’t be used as evidence because, among other things, the police didn’t know they were on camera.

“All police personnel present had a reasonable expectation that their conversations were no longer being recorded and the undercover officers, feeling that they were safe to do so, removed their masks,” says the suit.

First off, any expectation of privacy only arose because the officers thought they had disabled all of the cameras. In any other reasonable situation, the presence of cameras would alert both police and members of the public that any expectations of privacy were severely misguided. Surveillance cameras in businesses are the rule, not the exception. Just because these cops missed a camera doesn’t make the recording “illegal,” nor does it somehow grant them an expectation of privacy that logically doesn’t exist.

The legal action seems doomed to failure, even more so now that the Ninth Circuit Appeals Court — whose jurisdiction includes Santa Ana, California — has just issued an opinion, backed by Supreme Court decisions, stating that public areas of public businesses carry no expectation of privacy.

This ruling sides with law enforcement over a citizen’s objections — the same thing the misbehaving cops are seeking, but completely in reverse.

In this case, a motel owner (Mahesh Patel) claimed Fourth Amendment violations were committed when officers entered his business and cited him for code violations in plain view. He claimed his private business (as in private ownership) granted him an expectation of privacy that was violated by the officers’ entry.

Not so, says the court:

As in Barlow’s, the police officers entering the public areas of the Galleria Motel are entitled to observe (without a warrant) anything observable by the public. Camara and See [Supreme Court cases cited by the plaintiff] only allow a commercial property owner to manifest a reasonable expectation of privacy in his property by closing off portions of his business to the public.


The areas of the Galleria Motel open to the public are not within the enumerated items in the Fourth Amendment; therefore, no search occurs when police officers enter those areas. Because the complaint alleged only that police officers entered the public areas of the Galleria Motel, Patel has failed to demonstrate a reasonable expectation of privacy pursuant to Katz, rendering Camara and See inapplicable to this case.

This affirms the lower court’s judgment.

The only allegation in the complaint (relevant to this appeal) was Patel’s claim that the officers violated the Fourth Amendment. Defendants filed a motion to dismiss for failure to state a claim. The district court granted the motion, holding that neither Patel nor HFS had a reasonable expectation of privacy in the areas of the Galleria Motel that were open to the public.

So, for consistency’s sake, if nothing else, cops can’t claim to have an expectation of privacy in areas of businesses open to the public, not if the courts are going to deny the same privilege to citizens. But that’s exactly what the police union’s filing on behalf of the dispensary-raiding cops is trying to achieve.

And, indeed, the judge presiding over the case in Orange County Superior Court has already denied the officers’ request for an injunction, stating very briefly that the cops had no expectation of privacy because they were on duty at the time — never mind everything else about cameras, California’s wiretap law (which was invoked by the union) or the public areas of private businesses.

The union is still free to pursue its lawsuit against the police department, but it won’t be able to prevent the recordings from being used to investigate the participants of the raid. It will almost certainly appeal this decision, but there’s nowhere to go with this particular argument. Even if it makes its way up the chain to the federal appeals court, the Ninth has already expressed its opinion on the privacy expectations of public places… and it used Supreme Court decisions to back its assertions up.

But police unions and badly-behaving police officers are both known to explore every argument available, no matter how incredibly stupid, simply because to do otherwise is to admit wrongdoing. And there’s always a chance a system designed to cut cops as much slack as possible will still somehow come through for them.

Filed Under: , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Courts Aren't Buying Dispensary-Raiding Cops' 'Expectation Of Privacy' Arguments”

Subscribe: RSS Leave a comment
Capt ICE Enforcer says:

The police are innocent.

Everyone has it wrong, to include the union. Please understand what had actually happened.

– Police narrowly avoided death during a high stake raid.

– After the raid, the police (PEACE) officers had anxiety and required some medication to help calm their nerves. You know, some good stuff to counter the pills which they received after raiding CVS pharmacy.

– The wrist watch on the police officer indicated it was now lunch time. Instead of wasting tax payer dollars for fuel cost etc, they made the command decision to eat at the dispensary. And as everyone knows, Police are not on the clock during lunch time, or when a doughnut shop is near.

– This means everything that occurred is perfectly legal.

Capt ICE Enforcer

Anonymous Coward says:

Also forgetting the cash they stole from the business, and anything else they took to save on buying birthday/christmas presents etc….

If these officers aren’t immediately fired, have their pensions voided and face criminal prosecution then its the final proof that cops can basically do whatever they want and will NEVER face any sort of punishment.

tqk (profile) says:

Sue the PBA?

And there’s always a chance a system designed to cut cops as much slack as possible will still somehow come through for them.

If not, I hope they sue the PBA for every penny it has. It’s certainly come up with some incredibly nonsensical lawyering in its attempt to derail this. The cops have been robbed of union dues if this is all they can expect of “their” PBA.

Anonymous Coward says:

I just thought of an idea that will cause the police union(s) to do something more than protect shitty officers. Make the union liable for payouts that said shitty officers incur in the process of abusing the public. Should the union not come to the defense of said shitty officers, and the department alone does then the union is no longer liable.

That One Guy (profile) says:

Re: Re: Re:

Yes, but what the AC is noting is that without the recordings there wouldn’t have been an investigation, since it would have been the word of the store owner versus the word of the cops as to what happened, and it doesn’t take much to know which would have been accepted as fact and which would have been brushed off as lying.

That One Guy (profile) says:

Re: Re: Re:2 Re:

No, that’s pretty much exactly the reasoning behind the statement from the union. The recordings are bad and should be illegal because they expose police ‘misconduct’, and as a result led to the investigation and possible punishment against the thuggish idiots in blue.

You can be sure if the recordings exonerated the cops the union would be demanding that they be admitted as evidence, rather than demanding that they be excluded as evidence.

GEMont (profile) says:

And there’s always a chance a system designed to cut cops as much slack as possible will still somehow come through for them.

Sadly, although the courts and common sense agree that these cops are guilty of being assholes, there is still a very good chance that the courts will eventually find a way to exonerate these delinquent miscreants and shove justice even further down the rabbit hole.

GEMont (profile) says:

Re: Re: Re:

…punishment for their ‘harmless’ actions.

While I hope the courts are still at least slightly honest, I’m pretty sure they will eventually exonerate all the cops concerned with this act of wanton destruction. No charges laid, no harm, no foul.

They are, after all, War Heroes, who have bravely entered the “land” of the Enemy, and while there, caused great destruction to the Enemy’s Weapons of Mass Dissemination, as well as destroying some of the Enemy’s articles of support, thereby weakening the Enemy and aiding the War Effort being waged by the Good People of the United States Ownership Society against the competition.

Its quite possible the cops might get a medal or commendation for their actions, instead of criminal charges.

tqk (profile) says:

Re: I'm confused

Under what justification is it legal for the police to remove *installed* security cameras in a business?

I believe it was an illegal/unlicenced hemp products distributor. They were there to bust them for that. If they weren’t dirtbags, they might have considered those cameras could add to their evidence against the shop. Instead, they saw them as superfluous and in their way of having a good time.

GEMont (profile) says:

Re: Re: I'm confused

I believe it was an illegal/unlicenced hemp products distributor.

You also have to remember that in the United States, an accusation of “DRUGGIE!!!”, or “TERRORIST!!!” by any duly appointed law enforcement authority, cancels your US civil rights immediately and completely.

Thus these cops did not damage the property of a citizen of the USA, since everyone concerned with any aspect of that business was stripped of all US Civil Rights, the minute the cops arrived at the establishments door. So no harm was done technically, by destroying property, as it belonged to nobody.

In fact, the cowboy cops could have pistol whipped, raped and then executed every person they found on the premises, with little more than a verbal reprimand – possible but unlikely – in response to their actions.

In the War on Drugs, US citizens are the Enemy, and in much the same way that “salting the land” was used to decrease the Enemy’s support apparatus during all the previous cross-national wars, loss of citizenship and other tactics such as asset forfeiture, are useful to the War Effort when assaulting the members of your own general public.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...