United States v. Aaron Thompson
2016 U.S. App. LEXIS 1688
| 7th Cir. | 2016Background
- An informant working with police entered Aaron Thompson’s apartment to buy crack; he wore two hidden video recorders and an audio recorder and used $400 in marked bills supplied by police.
- Video shows Thompson inviting the informant in, taking the money, reaching into a bathroom where another person handed him a sandwich bag; informant received 12 small bags later confirmed as 2.6 g of crack.
- After the buy the informant described seeing items (baking soda, a bowl in a microwave) and reported hearing others; police applied for a search warrant based on the informant’s statements (officer did not view the video before applying); execution yielded 8.3 g of crack.
- Thompson moved to suppress the informant’s video recordings as an unlawful Fourth Amendment search, arguing (1) the informant exceeded the scope of his license (trespass theory) and (2) video captures more than audio so violated a reasonable expectation of privacy.
- The magistrate and district court denied suppression, holding Thompson forfeited any privacy interest in what he voluntarily exposed to an invited visitor and that video here captured only what the informant could lawfully observe; Thompson pleaded guilty but reserved his suppression appeal right.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether covert video by an invited informant exceeded the scope of the invite and thus was a Fourth Amendment search (trespass/license theory) | Thompson: recording exceeded the license to be there; like Jardines, the informant revealed a search purpose | Government: informant was lawfully invited; use of recording while present does not exceed the license; undercover informants permitted | Court: No search — invitation covered the informant’s presence and recording did not convert the encounter into a search |
| Whether covert video recording violated a reasonable expectation of privacy because video reveals more than audio | Thompson: video is a greater intrusion than audio and captured information not voluntarily disclosed | Government: anything knowingly exposed to an invited person is not protected; audio precedent controls; the videos showed only what the informant could see | Court: No reasonable expectation — Thompson forfeited privacy in what he exposed to the informant; poor-quality video captured only visible matters |
| Whether the videos tainted the subsequent search warrant and evidence seized during execution | Thompson: (implied) videos were unlawfully obtained and could taint the warrant | Government: warrant was supported by informant’s statements independent of video; officer did not rely on videos | Court: Warrant supported by untainted information; seized drugs not subject to suppression |
| Whether distinction between audio and video should be recognized for constitutionally relevant intrusion | Thompson: requests circuit to treat video as more intrusive and thus different from audio precedent | Government: circuits have rejected the distinction where device captures no more than the informant could observe | Court: Declined new rule; agreed with other circuits that covert video that records what an invitee lawfully observes is not a search |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (establishes privacy-expectation test for searches)
- Jones v. United States, 132 S. Ct. 945 (recognizes trespass and property-based search theory)
- Florida v. Jardines, 133 S. Ct. 1409 (license scope limited by purpose; dog on porch constituted search)
- Hoffa v. United States, 385 U.S. 293 (no Fourth Amendment protection for voluntarily disclosed information to an informant)
- United States v. White, 401 U.S. 745 (recording by government informant does not violate Fourth Amendment if agent lawfully present)
- Kyllo v. United States, 533 U.S. 27 (sense-enhancing technology that obtains details otherwise unavailable can constitute a search)
- Lopez v. United States, 373 U.S. 427 (undercover agent recordings permissible when agent lawfully present)
- United States v. Davis, 326 F.3d 361 (2d Cir. — covert video by invitee does not violate Fourth Amendment)
- United States v. Brathwaite, 458 F.3d 376 (5th Cir. — no constitutional distinction between covert audio and video when informant lawfully present)
- United States v. Wahchumwah, 710 F.3d 862 (9th Cir. — covert video by informant lawful when it records only what the informant could observe)