Do law enforcement officials need a search warrant to use Google Earth images in a criminal investigation?
“It’s interesting to me that it’s worrisome to some people, because we’ve been doing this for some years,” says San Juan County Prosecutor Randy Gaylord.
But an Orcas Island court case now questions whether the practice should be allowed.
The case involves a man charged with criminally breaking zoning codes by building a residential structure without obtaining proper permits.
Defendant Errol Speed argues investigators subjected him to an unreasonable search when they reviewed aerial images—Google Earth images as well as aerial photos taken by the county for planning purposes—before obtaining a search warrant.
Prosecutor: Aerial images have been used for years
The practice of using aerial images is nothing new, says the prosecutor.
Gaylord added prosecutors, including himself, have been using aerial photos as evidence for years; it’s just that now, with tools like Google Earth available to all, people are more sensitive about privacy issues.
“I didn’t think I’m on the cutting edge. I’m a 56-year-old lawyer,” he said.
Defendant: Images lend inside look at 'impenetrable' property
To Speed, the images make all the difference. Without those images, he claims, investigators would never have seen the structure on his tree-lined 11-acre property.
“My property is surrounded by 150 feet of native brush for privacy,” said Speed. “It’s impenetrable. You cannot see even in winter, when the leaves are off.”
Speed contends the fact that investigators were looking at those images without a search warrant is a violation of his privacy rights under Article 1, Section 7 of the Washington State Constitution.
He adds the magnified satellite images yield a closer look than what could be seen by the naked eye of anyone flying over his property, and are themselves invasions of his privacy.
Speed has argued that these images, because they were obtained invasively, should not be admitted as evidence. The judge hearing the case has not made up his mind; he has asked the prosecutor to provide supplemental briefing on these images and their role in the case by April 22.
San Juan County Prosecutor Randy Gaylord has no doubt these images should be allowed.
“They were always in a lawful place when they took those pictures. That’s essentially the position that we’re taking,” he said. “And these are photos of spaces not necessarily considered private. Nothing prevents flights over Mr. Speed’s house.”
State Constitution adds tricky layer
Several past cases have sided with Gaylord’s argument. There have been privacy-based challenges to police use of Google images, but those fell flat, says University of Washington law professor Mary Fan.
“In general, police can see what any other party can see. And that includes what Google images can see. So it’s perfectly legitimate to use what other parties can see,” she said. “Sometimes we might think we have privacy. The court may not always deem it private if it’s been revealed to a third party.”
But there is one big caveat: none of those previous cases cited the Washington State Constitution, which offers Washingtonians stronger protection against unreasonable search and seizure than the Fourth Amendment of the U.S. Constitution.
“So, for example, while under federal protection—the Fourth Amendment, investigators can search trash left on the street. In Washington, they can’t,” said Fan. “Even if it’s theoretically exposed, the idea is it’s obtrusive. It’s not what people go around doing all the time.”
’It makes for an interesting question’
Gaylord himself admits he’s unsure how the judge will rule, especially when the ability to zoom in using Google—what he calls the “aided eye”—is considered.
“It makes for an interesting question,” he said, adding the court must make such decisions “every time there is a new technology.”
As for the use of aerial images, Gaylord believes it will remain legal.
“Aerial photos have been taken for some time, just not in the use that you can find them in the Internet,” he said. "We don’t think anyone saw anything from an intrusive altitude."
