§ 3.1.8 Unmanned Surveillance Cameras/Videotaping of Hotel Room
In an effort to determine who was growing marijuana in the forest, the National Forest Service installed video and still cameras to photograph persons who approached the area, and the cameras were motion activated. The Ninth Circuit held that the defendant did not possess an expectation of privacy, noting that the defendant exposed his criminal activity to any person who visited that area. United States v. McIver, 186 F.3d 1119 (9th Cir. 1999).
However, agents who videotaped a hotel room with an informant’s consent violated the Fourth Amendment when they continued taping after the informant left the hotel room. United States v. Nerber, 222 F.3d 597 (9th Cir. 2000).
§ 3.1.9 Bank Records & Other Third-Party Records/Stored Communications Act (Historical Cellphone Records)
1. Bank Records & Other Third-Party Records.
a. Bank Records. “United States v. Miller, 425 U.S. 435 (1976), established that a depositor has no expectation of privacy and thus no ‘protectable Fourth Amendment interest’ in copies of checks and deposit slips retained by his bank.” United States v. Payner, 447 U.S. 727, 731-32 (1980), citing Miller, 425 U.S. at 437. In Payner, the Supreme Court held the defendant had no expectation of privacy in bank documents seized from a bank executive’s briefcase. Id. See also S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984) (where the Securities and Exchange Commission subpoenaed an individual’s financial records from two broker-dealer firms, the individual had no Fourth Amendment claim, because once he gave his financial information to someone else, “even on the understanding that the communication [wa]s confidential,” he could not object if the third party conveyed that information to law-enforcement authorities) (citing Miller, 425 U.S. at 443). See also In re Grand Jury Proceedings (Marsoner) v. United States, 40 F.3d 959, 962-63 (9th Cir. 1994) (“In general, an American depositor has no reasonable expectation of privacy in copies of his or her bank records, such as checks, deposit slips, and financial statements maintained by the bank.”); United States v. Mann, 829 F.2d 849 (9th Cir. 1987) (same).
b. Phone Company Records/Pen Registers. The installation and use of a pen register by a telephone company does not constitute a “search” within the meaning of the Fourth Amendment, and the defendant “entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not ‘legitimate.’” Smith v. Maryland, 442 U.S. 735, 735-36 (1979) (“[w]hen petitioner voluntarily conveyed numerical information to the phone company and ‘exposed’ that information to its equipment in the normal course of...
