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Can I Watch My Neighbors With Binoculars?

Posted By on April 28, 2017

Source: Wikimedia Commons

The short answer is yes. You do not have an expectation of privacy when you are outside, even in your own yard. While law enforcement cannot come onto your property and search it without a warrant, they can watch your home from across the street or across the field with binoculars or any other device readily available to the pubic. And so can your neighbors, especially if you’re engaging in activity that invites scrutiny—like revving your engine or throwing wild underage drinking parties, both of which have been going on in my neighborhood for almost a year now.

Several members of the local community, including us, were forced to contact law enforcement about the conduct of the neighbors. Each time, law enforcement would talk with unruly characters, but as soon as the squad was out of sight, the behavior started again, becoming even more aggressive. Law enforcement was called again after a resident at the neighbor’s home nearly ran down my pregnant daughter-in-law as she walked with two of my grandchildren. After enduring months of unending noise and traffic, I finally decided to seek assistance from my local officials, writing them a detailed letter about what I had observed and asking for their help in identifying a solution. I copied the poorly behaved neighbors as well. In response, a teenaged resident/relative left me a profanity-laced voice message, claiming that watching them through binoculars when they were in their yard is illegal. The ignorant rantings of an ill-educated teenager notwithstanding, I can assure everyone that it is not illegal to watch your neighbors when they’re outside behaving recklessly. It’s only when they’re inside that there’s a problem. And my neighbors aren’t bright enough to take they’re nastiness inside.

When the Santa Clara Police Department received an anonymous tip that someone was growing cannabis in their attic, they set up surveillance of the residence. Law enforcement’s activities were well within the scope of the Fourth Amendment, until they decided to use a specialized device that could detect heat emanating from walls. This temperature-sensitive technology was not, and still is not, available to the general public. While the defendant was convicted by the trial court, and the appellate court affirmed the conviction, the Supreme Court reversed, holding that  police can watch a suspect home without a warrant if they’re just observing it using publicly available tools, like binoculars. But the moment they use some technology that is not available for the public, they need a warrant because it is search as defined by the Fourth Amendment. California v. Ciraolo, 476 U. S. 207, 213 (1986).

Another seminal case concerning the expectation of privacy in commercial settings was also decided in 1986. In that case, Dow Chemical, Inc., learned that the EPA had hired a private aerial photographer to fly over its fenced-in property to take pictures of the chemicals that were being improperly stored there. The Supreme Court held that the EPA and other regulatory agencies had the authority to inspect commercial property, even if that property was fenced off. There is no expectation of privacy on privately held commercial land if the owners are engaging in an activity that is regulated by a government agency. Dow Chemical Co. v. United States, 476 U. S. 227, 234-235, 239 (1986). So, if you’re running an unlicensed auto-salvage yard, you have no expectation of privacy on the land where the unlicensed commercial activity is taking place. Cry me a river.

But what about stalking? If you’re watching someone through binoculars, are you stalking them? Not unless you intend to stalk them or intend to cause them apprehension. In every state, stalking requires either the intent to 1) stalk (general intent) or 2) the intent to cause the victim to feel threatened (specific intent). Neighbors looking to see what all the commotion is about is not stalking in any jurisdiction. A sleazy guy parked up the block watching children in their yard  is stalking. There is no good reason for a questionable character to be watching children.

In short, if you believe your neighbors are engaging in illegal activity, like intentionally harassing you by revving their engines for hours on end or by intentionally driving like maniacs past your home or by allowing underage drinking, you have the right to observe what they are doing when they are out in the open. If they don’t like it, they can take it inside.

About the author

Jerri L. Cook is a recognized leader in rural media. She holds a B.S. in Organizational Communications and a Juris Doctor (J.D.) from Concord Law School. Exceptional legal research and writing is essential to providing effective counsel. With her proven record of excellence, Jerri L. Cook provides effective trial support for attorneys who find themselves with only a 24-hour day. Her background in communications, including content creation and internet programming, complement her academic focus on Cyber Law. E-Discovery can be daunting, but with Jerri L. Cook on the team, digital information is readily discovered and retrieved. Contact her at 715.257.4363.

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