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 inadmissible.

 

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 be assessed.

 

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 the tire.

 

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 occurred.

 

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 you commit.

 

 

 

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