- LEGALITIES OF SURVEILLANCE
- By Kelly E. Riddle
- Kelmar & Associates, Inc.
- San Antonio, Texas
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- Surveillance and privacy issues are a constant source of contention
for PI's. Although the author is not an attorney and does not intend to
offer legal advice, there are case-laws currently on the book which investigators
should be aware of. These, by no means, are the final or sole cases related
to the subject. It should be understood that the courts are constantly
hearing cases that may have a bearing on the PI industry. The courts have
the right to over-rule prior decisions, to restrict prior findings or to
disregard prior case law all together. Therefore, please consider the
following case findings with these circumstances in mind.
- DeLuna -v- State of Texas (1986): Part of the court's findings involved
a decision that photographs are admissible as evidence if they accurately
depict the subject at the time they were taken.
- Darden -v- State of Texas (1982): The court ruled on several issues
which included the admissibility of motion pictures and photographs as
evidence. The court decided that motion pictures and photographs are admissible
as evidence provided there is proof of their accuracy as correct representations
of the subject at the given time and they have material relevance.
- Johnson -v- State of Texas (1977): The court delivered a finding that
photographs that fairly and accurately depict the subject are generally
admissible and any discrepancies between the photograph and the subject
at the relevant time, if properly pointed out, will not render the photograph
- Terry -v- State of Texas (1973): The court indicated that photographs
are admissible in evidence and sighted the theory that they are pictorial
communications of the witness who uses them, instead of, or in addition
to, some other method of communication.
- Hall -v- State of Texas (1992): The court ruled that under Rule 1001
which governs the admissions of photographs, including video tapes, the
"7 prong test" must be satisfied. The 7 prong test consists
of the following:
- 1) It must be proved that the recording device (camera) was capable
of taking testimony. Note: The investigator must be able to show that the
camera was in good operating condition without malfunctions.
- 2) The operator of the recording device must be shown to be competent
in the use and operation of the device.
- 3) The authenticity and correctness of the recording must be documented.
Note: The investigator must be able to document the proper chain of custody
and that tampering with the tape has not occurred.
- 4) The investigator must be able to show that the tape or photographs
have not had any additions, deletions or changes made to the tape. Note:
The investigator must be able to testify that the tape is a true and complete
recording, free of editing or tampering of any kind. If a tape is edited,
the original unedited copy must be available for review by the court.
- 5) The court must be shown the manner of presentation.
- 6) The recording must show proper identification of the subjects depicted
in the tape or photographs. Note: The investigator must have proper facial
views of the subject documented so that the identity of the subjects can
- 7) Must be able to show that the testimony or actions was elicited
voluntarily without inducement. Note: This goes directly to the "entrapment"
of a subject. The Investigator cannot cause a situation that would create
circumstances that would make the subject act differently than they might
without the circumstances presented to them. Example: the investigator
cannot let the air out of a tire to cause the subject to have to change
- U.S. -v- Pretzinger (1976): The court indicated that the attachment
of an electronic location device to a vehicle moving about on public thoroughfares
or through public air or public space does not infringe upon any reasonable
expectation of privacy and does not constitute a search. therefore no
search warrant is needed for installation of the device. Note: The investigator
should remember other laws such as trespassing laws when considering the
use of these devices. If the investigator has to enter upon the property
of the subject to affix the device on the vehicle, trespassing may have
- U.S. -v- Mendoza (1978): The court made a ruling on the admissibility
of tape recordings which were made with the consent of one party to a conversation
(ex: an undercover officer). The court rules that judicial authorization
to record conversations is not necessary in these situations.
- U.S. -v- Torres (1984): According to the findings in this case, television
surveillance of suspected criminals and criminality is not unconstitutional.
- U.S. -v- Rizzo (1978): The court found that in this case, a private
investigator was attempting to gather evidence of marital infidelity on
behalf of their client. The court stated that regardless of whether or
not the private investigator installed an electronic device for recording
conversations over the telephone or procured the client-spouse to install
it by giving her the device and instructing her on how to use it, they
violated the provision against interception of wire or oral communications.
- White -v- Weiss (1976): The found that when a private investigator
used, or gave their client an electronic device to record telephone conversations
even though it was within the client's own home and it involved one spouse
against another violated the wiretap provisions of Omnibus Crime Control
and Safe Streets Act.
- U.S. -v- Myers (1982): In a case in which undercover agents videotaped
a conversation with a Congressmen, the court ruled that the agents did
not violate the Congressmen's 1st and 4th Amendment Rights.
- Air Line Pilot's Association, International -v- United Airlines: The
court rules that it is a violation of the National Labor Relations Act
to unlawfully photograph a picket line is it is intended to coerce or interfere.
- National Labor relations Board -v- Southern Mayland Hospital: The
court ruled that it is not illegal to photograph union activities in areas
restricted to the union.
- General Notes: It is apparent that the court has ruled that a person
has the right to privacy if a reasonable and prudent person would have
an expectation of privacy under similar circumstances. If a person has
the garage door open and you can see the subject from the street without
any binoculars or other visual assistance, the person can't expect to have
a total sense of privacy. Whereas, a subject in their own home with the
doors and curtains closed would be expected to have a certain degree of
privacy. Common sense goes a long way in this type of work. Remember,
it is your business, livelihood and reputation on the line. Making a few
dollars illegally is not worth the long-term circumstances. If the situation
involves trespassing, entrapment or some other violation, think before
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