## Facts

- Federal agents arranged an undercover cocaine deal in a Seattle hotel room that law enforcement rented and controlled.
- Agents installed a hidden video camera in the room without a warrant.
- Confidential informants brought two defendants into the room, displayed a kilogram of sample cocaine, and saw money briefly shown.
- The informants left the room and did not return.
- Agents remotely monitored the room by video for about three hours after the informants left, observing additional defendants enter and activities including shutting blinds, sampling cocaine, and displaying weapons.
- Defendants left the hotel and were arrested; all were indicted on narcotics charges, and two faced firearm charges.
- The district court ultimately suppressed video-derived evidence recorded after the informants departed, but admitted the portion recorded while the informants were present based on their consent.
- The government appealed the suppression of the post-departure surveillance evidence.

## Issues

1. Whether defendants had a reasonable expectation of privacy against covert, warrantless video surveillance in a hotel room after the consenting informants left.
2. Whether an informant’s consent to monitoring while present authorizes continued remote video surveillance after the informant departs.
3. Whether the Fourth Amendment requires a warrant (absent an exception) for secret video surveillance of activities inside a hotel room when no consenting participant is present.

## Decision

- The Ninth Circuit affirmed the suppression order.
- The court held that defendants retained a reasonable expectation of privacy in the hotel room once left alone inside.
- The court ruled that warrantless secret video surveillance conducted after the informants left violated the Fourth Amendment.
- The court allowed admission of the video recorded while informants were present, because a participating informant’s consent covered that limited period.

## Legal Principles

- A hotel room is treated as a private space for Fourth Amendment purposes, even when occupied temporarily.
- The legality or illegality of conduct occurring inside a private space does not, by itself, eliminate a reasonable expectation of privacy.
- “False friend” doctrine permits an informant or undercover participant to report or record interactions to which the participant is a party, but it does not automatically justify remote government video monitoring once no consenting participant remains.
- Secret video surveillance is highly intrusive because it captures continuous visual observation of all conduct; absent a warrant or a recognized exception, it is prohibited in a private space when no consenting participant is present.
- Consent to monitoring is time- and circumstance-limited; participant consent supports recording only while the consenting participant is present and participating.

## Conclusion

The Ninth Circuit held that covert, warrantless video monitoring of a hotel room violated the Fourth Amendment after the informants left, because defendants then retained a reasonable expectation of privacy and no participating, consenting observer remained to justify continued surveillance.


United States v. Nerber, 222 F.3d 597 (9th Cir. 2000)