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Binoculars in Public Areas

This question comes from an officer in Alabama.  And basically, the question is: Can cops use binoculars to view suspects in a public area?

They want to see, for example, sales of narcotics, and so forth.  Now, does the officer need probable cause to do that?  Does the cop need probable cause to make contact and so forth?  And I have your answer.  Cops can absolutely use binoculars to see anything that would be open to view.

Let’s say the people are in a park, and the cops want to be 500 yards away with ultra-powerful binoculars.  They don’t want to burn their position, right?  They can absolutely be five hundred yards away, not visible to these people, and use binoculars to see what they’re doing.

There is no expectation of privacy from being surveilled when the people are in a public place.

So that’s by binoculars.  If you start bringing in drones and you start bringing in pole cameras, then maybe the answers get a little murky.  But absolutely, when it comes to binoculars, they are fair game.  Only when you point them towards the windows of a house or backyards, can things get a little tricky.

If you are looking into windows, and you are seeing something that is not visible with the naked eye from a lawful vantage point, then that is a search under the Fourth Amendment.

Let me give you an example.  Cops could stand on the sidewalk in front of a home and with the naked eye, see cocaine on the kitchen table.  But they don’t want to be on the sidewalk looking into this guy’s house because they’re going to get burned.  So instead, they go 200 yards back and use binoculars and see the same thing.  Would that be lawful?

If the court believes, (and you’re going to have to convince the court of this), that you could have seen the same thing with the naked eye from the sidewalk, you will win.  But if the court finds that the only way that you saw what you saw was with those binoculars, and therefore there was no way that you could observe the same thing with the naked eye from a lawful position, you will lose.  That would be a search under the fourth amendment.  That would be invading the person’s expectation of privacy.

We have no doctrine that prevents cops from seeing things in public, including also looking into cars or watching a house.  That’s a lawful use of binoculars, looking at the outside, looking at the front of the house.

But using those same binoculars to look into windows or backyards is more problematic. You have to justify that, as I told you earlier.

Let’s end off there, guys.  And until next time, keep doing the great job you’re doing out there!


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