Chapter 38: Electronic Surveillance
Generally
Legal issue: The main legal issue in conducting electronic surveillance is whether a search warrant is required. As we discuss, this depends on the nature of the surveillance technology and its sophistication.
Compare electronic communications surveillance: A warrant is ordinarily required to obtain or intercept electronic communications or data. See Chapter 39 Electronic Communications and Records Searches (Cell Site Location Information).
Related subjects covered elsewhere: Chapter 40 Wiretaps and Bugs, Chapter 65 Motions to Disclose Surveillance Site Location.
Classes of Electronic Surveillance
: As a general rule, the courts are more apt to require a warrant when officers utilize acquisition technology, as opposed to enhancement technology.
Enhancement technology: Enhancement surveillance devices merely magnify or clarify sights and sounds that officers could have intercepted without them. Thus, a warrant is not ordinarily required to use enhancement technology if it is simply used to obtain better picture or sound quality of something that could be seen or heard; e.g., binoculars, outside pole cameras.[1]
Acquisition technology: Acquisition devices do not merely enhance sights or sounds; they permit officers to see and hear things they could not have seen or heard otherwise. Examples include, thermal imaging devices, audio bugs, wiretaps, and parabolic microphones.
"Sophisticated" technology: Defendants sometimes argue that a warrant is required whenever officers want to utilize surveillance technology that is highly sophisticated, regardless of whether it is also highly intrusive. These arguments usually fail.[2]
Electronic Visual Surveillance
The test: The prevalent view is that a warrant is not required if officers utilized technology that (1) was in general public use, and (2) merely permitted them to see things they could have seen from a plausible vantage point (although less clearly and with somewhat more effort).[3]
Video surveillance cameras: Because surveillance cameras are so prevalent, their use does not constitute a search so long as they covered places that could not support a reasonable expectation of privacy; e.g., public places, places open to the public, non-private workspaces.[4] See this endnote for examples.[5]
Duration of recording: A warrant is not required merely because the camera was in use for a lengthy, but reasonable, period of time.[6]
Recording inside apartment buildings: A warrant is not required to install a stationary camera inside an apartment building as follows:
Lawful entry: Officers must not have violated the suspect's reasonable privacy expectations in gaining entry into the building. See Chapter 59 Standing (Privacy Expectations in Certain Places and Things, Inside apartment buildings).
Location of camera: The camera must have been installed in a place in which the suspect did not have a reasonable expectation of privacy; e.g., camera disguised as smoke detector was lawfully placed in a common hallway where residents would be expected to see "maintenance staff, mail service, garbage service, invited guests, other tenants.[7]
What did the camera record? The camera must not have recorded the inside of the suspect's apartment; e.g., the camera recorded only the resident's "entry and exit into the apartment from the unlocked common hallway."[8]
Night vision: The use of night vision technology will not convert surveillance into a search if it was used to observe places in which the suspect could not reasonably have expected privacy. This is true even if he reasonably believed he could not have been seen because of darkness; e.g., officers used a night vision device to observe a drug deal inside a car in public parking lot.[9]
Vehicle Tracking
Attaching the tracker
Generally: Attaching a tracking device to a vehicle constitutes a "search."[10] Whether the search is lawful depends on "the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations."[11]
Probation or parole search: Officers may install a tracker if the person in control is a parolee or a probationer subject to warrantless searches of vehicles or property under his control.[12]
Monitoring the tracker
Cell site tracking: A person or vehicle may be tracked by obtaining real-time cell site location data or GPS data. See Chapter 35 Search Warrant Special Procedures (Vehicle Tracking Warrants).
Vehicle tracking warrants: See Chapter 35 Search Warrant Special Procedures (Vehicle Tracking Warrants).
Warrantless tracking: Prior to Jones, it was the rule that a warrant was not required to track a beeper if the vehicle remained on public streets or in public places, such as parking garages.[13] This may still be the law, but Jones created some uncertainty. The Third Circuit ruled that a warrant was required.[14] A warrant may be required if the vehicle will be tracked for an extended period.[15] Recommendation: Seek a warrant.
Tracking a stolen cellphone: A warrant is not required to track a vehicle by means of a tracking device in a cellphone if the phone had been stolen.[16]
Contraband Tracking
How used: The transmitter is hidden inside a package containing contraband or other evidence in order to track its whereabouts, usually after the suspect took possession of it.
Installation: A warrant is not required to hide a beeper inside a package that had previously been opened lawfully; e.g., package opened intentionally or accidentally by carrier.[17]
Tracking
Tracking in public places: Court authorization is not required to track a package if it remains on a street or other place in which the suspect could not have reasonably expected privacy.[18] The Supreme Court has advised officers that "warrants for the installation and monitoring of a beeper will obviously be desirable since it may be useful, even critical, to monitor the beeper to determine that it is actually located in a place not open to visual surveillance."[19]
Tracking in private places: Once the package is inside a residence or other private place, a warrant is required to continue tracking it.[20]
Other Electronic Surveillance
Thermal imaging: A warrant is required if the scan reveals heating conditions inside a home or other private structure.[21]
Surveillance in public restrooms: A warrant is required to conduct surveillance in a restroom.[22] A warrant is not required to enter public restrooms and observe anything in plain view.[23]
Notes
[1] USSC: US v. Knotts (1983) 460
US 276, 282 ["Nothing in the Fourth Amendment prohibited the
police from augmenting the sensory faculties bestowed upon them at
birth with such enhancement as science and technology afforded
them in this case."]; Dow Chemical Co. v. US (1986) 476 US
227, 238 ["The mere fact that human vision is enhanced somewhat,
at least to the degree here [a "precision aerial mapping camera"],
does not give rise to constitutional problems" and "It may well be
that surveillance of private property by using highly
sophisticated surveillance equipment not generally available to
the public, such as satellite technology, might be
constitutionally proscribed absent a warrant."];
US v. Knotts (1983) 460 US 276, 282 ["Nothing in the Fourth
Amendment prohibited the police from augmenting the sensory
faculties bestowed upon them at birth with such enhancement as
science and technology afforded them in this case."]. CAL:
P v. Arno (1979) 90 CA3 505, 511 ["So long as that which is
viewed or heard is perceptible to the naked eye or unaided ear,
the person seen or heard has no reasonable expectation of privacy
in what occurs."]. OTHER: US v. Ishmael (5C 1995) 48
F3 850, 855 ["While technology certainly gives law enforcement a
leg up on crime, the Supreme Court has never equated police
efficiency with unconstitutionality."]; US v. Harrelson (5C
1985) 754 F2 1153, 1170 ["Mistaking the degree of intrusion of
which probable eavesdroppers are capable is not at all the same
thing as believing there are no eavesdroppers."];
US v. Scott (1C 1992) 975 F2 927, 930 ["There is no
constitutional requirement that police techniques in the detection
of crime must remain stagnant while those intent on keeping their
nefarious activities secret have the benefit of new knowledge."].
[2] USSC: US v. Knotts (1983) 460
US 276, 284 ["We have never equated police efficiency with
unconstitutionality, and we decline to do so now."]. OTHER:
US v. Houston (6C 2016) 813 F3 282, 290 ["The law cannot be
that modern technological advances are off-limits to law
enforcement when criminals may use them freely."];
US v. Ishmael (5C 1995) 48 F3 850, 855 ["While technology
certainly gives law enforcement a leg up on crime, the Supreme
Court has never equated police efficiency with
unconstitutionality."]; US v. Scott (1C 1992) 975 F2 927,
930 ["There is no constitutional requirement that police
techniques in the detection of crime must remain stagnant while
those intent on keeping their nefarious activities secret have the
benefit of new knowledge."].
[3] USSC: Dow Chemical Co.
v. US (1986) 476 US 227, 238 ["The mere fact that
human vision is enhanced somewhat, at least to the degree here [a
"precision aerial mapping camera"], does not give rise to
constitutional problems" and "It may well be that surveillance of
private property by using highly sophisticated surveillance
equipment not generally available to the public, such as satellite
technology, might be constitutionally proscribed absent a
warrant."]; US v. Knotts (1983) 460 US 276,
282 ["Nothing in the Fourth Amendment prohibited the police from
augmenting the sensory faculties bestowed upon them at birth with
such enhancement as science and technology afforded them in this
case."]; Kyllo v. US (2001) 533 US 27, 40 [if
officers use "a device that is not in general public use, to
explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a
'search'"]. 9th CIR: US v.
Gonzalez (9C 2003) 328 F3 543, 548 [no reasonable
expectation of privacy from video surveillance of hospital
mailroom]. OTHER: US v. Ishmael (5C
1995) 48 F3 850, 855 ["While technology certainly gives law
enforcement a leg up on crime, the Supreme Court has never equated
police efficiency with unconstitutionality."]; US
v. Harrelson (5C 1985) 754 F2 1153, 1170 ["Mistaking
the degree of intrusion of which probable eavesdroppers are
capable is not at all the same thing as believing there are no
eavesdroppers."].
[4] OTHER: US v. Bucci (1C 2009)
582 F3 108, 117 [8-month surveillance via pole camera for eight
months, "An individual does not have an expectation of privacy in
items or places he exposes to the public, like Bucci''s front
yard]; US v. Houston (6C 2016) 813 F3 282, 287-88 ["Houston
had no reasonable expectation of privacy in video footage recorded
by a camera that was located on top of a public utility pole and
that captured the same views enjoyed by passersby on public
roads."]; US v. Powell (6C 2017) 847 F3 760, 773 ["each of
the cameras viewed areas that were clearly visible from a public
vantage point"]; US v. Jackson (10C 2000) 213 F3 1269 [FBI
agents installed video-only cameras atop a telephone pole
overlooking the homes of the defendant' and another woman. The
cameras "could be adjusted by officers at the police station, and
could zoom in close enough to read a license plate." In ruling a
warrant was not required to conduct the surveillance, the court
noted that the cameras "were incapable of viewing inside the
houses, and were capable of observing only what any passerby would
easily have been able to observe. Thus, [the defendant] had no
reasonable expectation of privacy that was intruded upon by the
video cameras."]. NOTE: The First Circuit has granted en
banc review of US v. Moore-Bush (1C 2020) 963 F3 29, 42
[pole cameras are not a "new technology and are subject to basic
rule that people cannot reasonably expect privacy in areas that
can be seen by passersby; Supreme Court's decision in
Carpenter v. US (2018) __ U.S. __ [138 S.Ct. 2206] does not
restrict the use of pole cameras in such areas].
[5] EXAMPLES: Not a search
• Video surveillance in jail release office.
Sacramento County Deputy Sheriff's Assn. v.
County of Sacramento (1996) 51 CA4 1468, 1478-84.
• Video surveillance of hospital mailroom. US
v. Gonzalez (9C 2003) 328 F3 543, 548.
• Video surveillance of "open and undifferentiated work
area."
Vega-Rodriguez v.
Puerto Rico Telephone Co. (1C 1997) 110 F3 174, 181.
• Video surveillance in national forest. US v.
McIver (9C 1999) 186 F3 1119, 1125.
• Video surveillance of open field near suspect's farm.
US v. Vankesteren (4C 2009) 553 F3 286, 291.
• Video surveillance of suspect's front yard. State
v. Holden (Utah 1998) 964 P2 318 321.
• Work area in missile site. US v.
Apperson (10C 2006) 441 F3 1162, 1187.
[6] OTHER: US v. Dennis (5C 2022)
41 F4 732, 741 ["Although the Supreme Court addressed a form of
continuous surveillance in [Carpenter v. US (2018) __ US __
[138 S.Ct. 2206], unlike cell-site location information, there is
nothing inherent in the use of security cameras to cast doubt on
their validity. It is rather whether the surveillance invades
protected privacy interests."]; US v. Trice (6C 2020) 966
F3 506, 518 ["The camera did not provide the type of comprehensive
monitoring at issue in [Carpenter v. US (2018) __ US __
[138 S.Ct. 2206]]; US v. Tuggle (7C 2021) 4 F3 505, 514
[warrantless use of three pole cameras over an 18-month period did
not constitute a "search"];
[7] OTHER: US v. Tuggle (7C 2021)
4 F4 505, 511 ["Agents mounted two cameras on a pole in an alley
next to his residence and a third on a pole one block south of the
other two cameras."]; US v. Trice (6C 2020) 966 F3 506, 517
["law enforcement could have observed his entry and exit into the
apartment from the unlocked common hallway, regardless of whether
it was truly public."] [defendant "had no reasonable expectation
of privacy in the apartment building's unlocked common hallway
where the camera recorded the footage"].
[8] QUOTE FROM: US v. Trice (6C
2020) 966 F3 506, 510 ["The camera captured nothing beyond the
fact of Trice's entry and exit into the apartment" and "nothing
inside the apartment is visible"]. USSC:
Carpenter v. US (2018) __ US __ [138 S.Ct. 2206, 2220] ["We
do not call into question conventional surveillance techniques and
tools, such as security cameras."]. US v. Tuggle (7C 2021)
4 F4 505, 511 ["The first two cameras viewed the front of Tuggle's
home and an adjoining parking area."].
[9] CAL: P v.
Lieng (2010) 190 CA4 1213, 1228 [night vision technology
"is no more 'intrusive' than binoculars or flashlights, and courts
have routinely approved the use of flashlights and binoculars by
law enforcement officials"]. OTHER: US v.
Dellas (N.D. C 2005) 355 FS2 1095, 1107 ["night vision
goggles merely amplify ambient light to allow the wearer to see in
relative darkness"]; Oregon v. Wacker (1993)
317 Or. 419, 429 [no reasonable expectation of privacy when
officers used night-vision binoculars to observe narcotics
activity inside a car in a public parking lot].
[10] USSC: US v.
Jones (2012) 565 US 400. OTHER:
US v. Katzin (3C 2013) 732 F3 187, 198.
[11] QUOTE FROM:
Grady v. North Carolina (2015) 575 US 306, 310.
[12] CAL: P v. Zichwic (2001) 94
CA4 944, 952 ["Defendant contends that attaching a monitoring
device to his truck on November 13, 1998 was arbitrary and
capricious. We disagree."]. 9th CIR: US v. Korte (9C
2019) 918 F3 750, 756 ["If an officer can conduct a warrantless
search of a parolee's cell phone — an object that is "the sum of
an individual's private life" ... placing a GPS device on a
parolee's car cannot logically demand more constitutional
protection.].
[13] USSC: US v.
Knotts (1983) 460 US 276, 281 ["A person traveling in an
automobile on public thoroughfares has no reasonable expectation
of privacy in his movements from one place to another."];
Cardwell v. Lewis (1974) 417 US 583, 590-91
[a car "travels public thoroughfares where its occupants and its
contents are in plain view"]. CAL: P v.
Salih (1985) 173 CA3 1009, 1016 ["The critical issue here
is whether or not the monitoring of the beeper revealed
information that could not have been obtained through visual
surveillance."]. 9th CIR: US v.
Dubrofsky (9C 1978) 581 F2 208, 211 ["Transmitting the
[beeper's] location is merely an aid to what can be accomplished
by visual surveillance."]. OTHER: US v.
Hernandez (5C 2011) 647 F3 216, 220-21; US
v. Gbemisola (DCC 2000) 225 F3 753, 759 [suspect
"had no reasonable expectation of privacy with respect to his
travels on the public street"]; US v.
Berry (D. Md. 2004) 300 FS2 366, 368 ["A GPS merely records
electronically what the police could learn if they were willing to
devote the personnel necessary to tail a car around the clock."].
[14] OTHER: US v. Katzin (3C
2013) 732 F3 187, 198.
[15] USSC: US v.
Jones (2012) 565 US 400, 432 [conc. opn. by Alito, J.)
["For these reasons, I conclude that the lengthy monitoring that
occurred in this case constituted a search under the Fourth
Amendment."]. OTHER: US v.
Maynard (DCC 2010) 615 F3 544.
[16] CAL: P v. Barnes (2013) 216
CA4 1508, 1518 ["[Did defendant have a legitimate expectation of
privacy in the cell phone he had stolen. The answer is an emphatic
'No."].
[17] USSC: P v.
Karo (1984) 468 US 705, 713 ["We conclude that no Fourth
Amendment interest of Karo or of any other respondent was
infringed by the installation of the beeper."]; P v.
Salih (1985) 173 CA3 1009, 1015 ["The
installation of a beeper in the circumstances of this case
[a US Customs inspection] violated no one's Fourth Amendment
rights"]. NOTE: The US Supreme Court has ruled a warrant is
not required to transfer to a suspect an item in which a beeper
has been secreted. US v. Karo (1984) 468 US
705, 712.
[18] 9th CIR: US v.
Dubrofsky (9C 1978) 581 F2 208, 211 ["Electronic tracking
devices continually broadcast 'here I am' ... This intrusion,
though, is slight and is not an impermissible search."].
ALSO SEE: P v. Barnes (2013) 216 CA4 1508, 1518
["[Did defendant have a legitimate expectation of privacy in the
cell phone he had stolen. The answer is an emphatic 'No."].
[19] QUOTE FROM: US v.
Karo (1984) 468 US 705, 713, fn.3. NOTE: The
affidavit for such a warrant should "describe the object into
which the beeper is to be placed, the circumstances that led
agents to wish to install the beeper, and the length of time for
which beeper surveillance is requested." Id. at p. 718.
[20] USSC: US v.
Knotts (1983) 460 US 276, 285 ["But there is no indication
that the beeper was used in any way to reveal information as to
the movement of the drum within the cabin"]; Kyllo
v. US (2001) 533 US 27, 40 ["Where, as here, the
Government uses a device that is not in general public use, to
explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a
'search'"]; US v. Karo (1984) 468 US 705, 716
["Indiscriminate monitoring of property that has been withdrawn
from public view would present far too serious a threat to privacy
interests in the home to escape entirely some sort of Fourth
Amendment oversight."]. CAL: P v.
Zichwic (2001) 94 CA4 944, 956 ["Monitoring does amount to
a search when it reveals information about otherwise hidden
activities inside a residence."].
[21] USSC: Kyllo v.
US (2001) 533 US 27, 40 ["Where, as here, the Government
uses a device [a thermal imager] that is not in general public
use, to explore details of the home that would previously have
been unknowable without physical intrusion, the surveillance is a
'search' and is presumptively unreasonable without a warrant."].
NOTE: What is thermal imaging? "Thermal imagers
detect infrared radiation, which virtually all objects emit but
which is not visible to the naked eye. The imager converts
radiation into images based on relative warmth—black is cool,
white is hot, shades of gray connote relative differences; in that
respect, it operates somewhat like a video camera showing heat
images." Kyllo v. US (2001) 533 US 27, 29-30.
ALSO SEE: US v. Nueva
(1C 1992) 979 F2 880, 882 ["All objects emit heat, in the form of
infrared radiation, which can be observed and recorded by thermal
imaging devices. Specifically, thermal imagers detect energy
radiated from the outside surface of objects, and internal heat
that has been transmitted to the outside surface of an object,
which may create a differential heat pattern."].
[22] CAL: P v.
Triggs (1973) 8 C3 884, 894, fn.7 ["Unless he has probable
cause to search, an officer has no right to retreat to a
clandestine position to peer into a restroom"].
[23] CAL: P v.
Triggs (1973) 8 C3 884; P v. Metcalf (1971)
22 CA3 20.