Legality of Television Surveillance in Government Offices ( 1979 )

February 2, 1979
79-10 MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Constitutional Law—Fourth Amendment—
Interception of Oral Communications—Legality of
Television Surveillance in Government Offices
This responds to your request for our opinion concerning the legality o f
using concealed television cameras for surveillance in buildings owned by
or leased to the Governm ent, where the Government officer occupying the
particular space has consented to the surveillance.
While existing statutes govern certain aspects o f television surveillance,
no statute specifically regulates the surveillance for law enforcement pur­
poses. The requirements o f Title III o f the Omnibus Crime C ontrol and
Safe Streets Act o f 1968, 18 U .S.C . § 2510 et seq., would apply if a tele­
vision device intercepts an oral com m unication “ uttered by a person ex­
hibiting an expectation that such com m unication is not subject to intercep­
tion under circumstances justifying such expectation.” 18 U.S.C.
§ 2510(2). In the area o f foreign intelligence and foreign counterintelli­
gence, the recently enacted Foreign Intelligence Surveillance Act o f 1978
specifically encompasses television surveillance “ under circumstances in
which a person has a reasonable expectation o f privacy and a warrant
would be required for law enforcement purposes.” 50 U.S.C.
§ 1801(b)(4). That Act generally requires that any such surveillance under­
taken for foreign intelligence purposes be authorized by judicial order.
Since the existing statutes do not cover much o f this area,1 the Fourth
Amendment is the only existing check on governmental action in similar
situations. The relevant statutes are themselves predicated on the Fourth
Am endm ent, and are framed in terms o f that A m endm ent’s test o f
“ reasonable expectation o f privacy.” O ur discussion will focus on the
requirements o f the Fourth Am endm ent.
1 For example, Title III does not apply to surveillance that does not intercept com m unica­
tions, and the Foreign Intelligence Surveillance Act o f 1978 would not apply to surveillance
conducted outside the United States.
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We have identified only a few cases dealing with the Fourth Amendment
aspects o f surreptitious television surveillance.2 While these cases apply
generally to surveillance conducted in Government buildings, we do not
believe that the case law in this area has been developed sufficiently to pro­
vide authoritative guidance. The following discussion will therefore be
drawn from the general principles o f Fourth Amendment law and its
application in analogous contexts.
The starting point in our analysis is the Supreme C ourt’s decision in
Katz v. United States, 389 U.S. 347 (1967), holding that the Government
may not, without warrant or in the absence o f exigent circumstances,
violate “ the privacy upon which [an individual] justifiably relied.” Id. at
353. In delineating the circumstances in which one may have a justifiable
expectation o f privacy, the C ourt stated:
W hat a person knowingly exposes to the public even in his own
home or office, is not a subject o f Fourth Amendment pro­
tection * * *. But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally
protected. [389 U.S. at 351-52.]
Justice Harlan, in elaborating on this concept, stated that whether what
one seeks to preserve as private will, in fact, be constitutionally protected
depends on whether that expectation o f privacy is “ one that society is
prepared to recognize as ‘reasonable.’ ” Id. at 361. See also, United States
v. White, 401 U.S. 745, 752 (1971).
Under these principles, the installation and maintenance o f video
surveillance in a private office would constitute, in our opinion, an inva­
sion o f one’s reasonable expectation o f privacy and would thus be a search
and seizure within the Fourth Amendment. See, United States v. H um­
phrey, supra, 451 F. Supp. at 60; People v. Teicher, supra at 590. The next
1 The most recent, United States v. Humphrey , 456 F. Supp. 51 (E .D . Va. 1978), will be
more fully discussed below. United States v. McMillon, 350 Supp. 593 (D .D .C . 1972) upheld
police visual observations and videotapes o f an individual’s yard; the court reasoned that,
since the officers had authority to be on an adjacent piece o f property, the observations were
within the plain view doctrine and that the police actions were reasonable under the circum ­
stances. Poore v. State o f Ohio, 243 F. Supp. 777 (N .D . Ohio 1965), a ff’d, 366 F. (2d) 33 (6th
Cir. 1966), was a pre-Katz decision concluding that police observations and movies made from
behind a “ two-way” glass in a m en’s washroom were not a search, for the reason that any
member o f the public might have walked into the washroom and m ade the same observations.
The State courts have also dealt on occasion with this issue. People v. Teicher, 395 N.Y.S.
2d 587 (N .Y.S.C. 1977), upheld a visual surveillance conducted pursuant to court order
against contentions that the court had no statutory authority to issue the order and that it did
not conform to the Fourth A m endm ent’s requirements as to probable cause, particularly,
minimization, and use o f electronic surveillance where other investigative tools were avail­
able. A nother decision, Avery v. State, 292 A .2d 728 (M d. Ct. o f Special Appeals 1972), ap­
peal dismissed, 410 U .S. 977 (1973), upheld the warrantless use o f a television camera
primarily on the ground that the surveillance was conducted with the full cooperation and
consent o f the victim. Sponick v. City o f Detroit Police Department, 211 N .W . 2d 674, 690
(Mich. Ct. App. 1973), upheld television surveillance o f a bar on the ground that the sur­
veillance only m ade “ a perm anent record o f what any member o f the general public would
see if he entered the tavern as a p a tro n .”
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question is whether the situation differs when the surveillance is conducted
in Government buildings or offices. For the following reasons we believe
that the situation is not any different in Government offices and that per­
sons within Government offices also have a reasonable expectation of
privacy.
A. ■
Surveillance in a Governm ent office still constitutes a search within the
Fourth Amendment. In United States v. Hagarty, 388 F. (2d) 713 (7th Cir.
1968), the only C ourt o f Appeals decision to date applying K atz analysis to
the question o f a warrantless continuous electronic surveillance in a
Government office, the court held that evidence obtained by such a
surveillance violated the Fourth Am endm ent. The court stated that the key
question under Katz was whether the defendant sought to exclude “ the
uninvited ear” and that, under this standard, it was “ immaterial that the
overheard conversation took place in an IRS office.” Id. at 716. The same
rationale would apply to a visual surveillance by electronic means.
In United States v. Humphrey, supra, the court indicated that while
one’s reasonable expectation o f privacy is less in an office than at home,
the television surveillance o f the Government office involved was subject
to the Fourth Am endm ent. 451 F. Supp. at 60.3
Several arguments, predicated on the Governm ent’s authority over its
buildings, may be advanced contrary to this result. First, it is a familiar
canon that one with joint access or control over property may permit it to
be searched, United States v. Matlock, 415 U.S. 164, 171 note 7 (1974),
and the Governm ent’s control over its buildings may be a basis for allow­
ing the appropriate officials to “ consent” to the search. However, the
courts have not taken such a broad view o f the G overnm ent’s authority.
The cases generally utilize the traditional test whether the property has in a
practical sense been devoted to the exclusive use o f the employee. See,
United States v. Blok, 188 F. (2d) 1019 (D.C. Cir. 1951) (search of
employee’s desk); United States v. Kahan, 350 F. Supp. 784 (S.D.N.Y.
1972), a ff’d on other issues, 415 U.S. 239 (1974) (search o f employee’s
wastebasket). Cf., United States v. Millen, 338 F. Supp. 747, 753 (E.D.
Wis. 1972). Under this test, if the property has been devoted to the
exclusive use o f a person, he has a justifiable expectation o f privacy in it
sufficient to insulate the property from search even though the search is
1 The court found, first, that the television surveillance was justified by the same exception
for audio surveillance, and that the intrusion was reasonable, at least until the date that the
primary focus shifted from foreign intelligence. The court then found, however, that televi­
sion surveillance after that date was reasonable due to the office setting and the limited scope
o f the intrusion. It is unclear whether this latter finding was meant to suggest that television
surveillance might be conducted without a warrant even in a law enforcement context so long
as it is conducted reasonably, or whether it was only addressing the issue o f reasonableness
apart from the warrant question.
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consented to by the owner o f the property (or his agent) who for certain
purposes at least has authorized access to the property. See, Stoner v.
California, 376 U.S. 483 (1964); Chapman v. United States, 365 U.S. 610(1961).
More im portantly, it is doubtful whether the G overnm ent’s “ consent”
has any validity with respect to surveillance o f an individual, as opposed to
discrete physical searches. Under Title III o f the Omnibus Crime C ontrol
Act electronic m onitoring o f telephonic and oral communications requires
a warrant even though the owner o f the property or the subscriber to the
telephone has consented; only the consent o f a party to a com m unication
suffices to dispense with the warrant requirement. See 18 U.S.C. § 2511(2)(c). The same was true prior to Title III under § 605 o f the Com munica­
tions Act o f 1934, 47 U .S.C . § 605, with respect to telephone com m uni­
cations. See, Rathbun v. United States, 355 U.S. 107 (1957).
These statutory restrictions have a constitutional foundation. The cases
upholding the doctrine o f consent to surveillance under the Fourth
Amendment are not predicated on the consent of the owner o f the perti­
nent property, but rather on the consent of the person to whom the
targeted individual reveals his communications or activities. United States
v. White, supra. The underlying rationale seems to require that the doc­
trine be kept within these limits. The courts reason that there can be no
justifiable expectation o f privacy regarding information voluntarily
revealed to another; one’s confidant may later reveal the disclosures to the
Government. H offa v. United States, 385 U.S. 293 (1966). The use o f elec­
tronic equipment, with the confidant’s consent, to record these disclosures
simultaneously is then regarded as much the same as a subsequent
disclosure to the Government. Lopez v. United States, 373 U .S. 427
(1963). The “ consent” necessary for the surveillance is thus that o f the
confidant, whose ability to report to the police is equated with the elec­
tronic surveillance—i.e., the one to whom the disclosures are made.
The Governm ent’s authority over its buildings may raise another ques­
tion. It is a generally accepted principle o f Fourth Amendment law that no
“ search” occurs when an officer observes objects or activities from a loca­
tion where he has a right to be. Harris v. United States, 390 U.S. 234, 236
(1968). See also, M cDonald v. United States, 335 U.S. 451, 458 (1948)
(Jackson, J., concurring). Under this rationale, courts have upheld
searches o f areas that are usually deemed quite private—e.g., looking into
bedrooms, United States v. Johnson, 561 F. (2d) 832 (D.C. Cir. 1977) (en
banc)\ Nordskog v. Wainwright, 546 F. (2d) 69 (5th Cir. 1977); or
bathroom s, Ponce v. Craven, 409 F. (2d) 621 (9th Cir. 1969), cf. Smayda
v. United States, 352 F. (2d) 251 (9th Cir. 1965).
Even searches when the police went to great lengths to secure a view
from a position where they were authorized to be were upheld by the
courts: for example, searches through only a narrow opening, see, United
States v. Wright, 449 F. (2d) 1355 (D.C. Cir. 1971) (peeping through an
8-to-9-inch crack in garage); United States v. Vilhotti, 323 F. Supp. 425,
67
431-32 (S.D .N .Y . 1971) (gaps between boards covering window),4 or
where the officers had to go through various machinations to conduct
their “ search,” see, e.g., James v. United States, 418 F. (2d) 1150, 1151
note 1 (D.C. Cir. 1969) (squatting to see under garage door), United States
v. Fisch, 474 F. (2d) 1071 (9th Cir. 1973) (listening at crack below door be­
tween motel room s),5 or even where Governm ent agents have resorted to
artificial means to conduct their surveillance. See, United States v. Solis,
536 F. (2d) 880 (9th Cir. 1976) (use o f dogs to smell drugs); Fullbright v.
United States, 392 F. (2d) 432 (10th Cir. 1968) (use o f binoculars to see
through shed door). C f , United States v. Lee, 274 U.S. 559, 563 (1927).6
These cases could arguably allow the surveillance here, since the Govern­
m ent’s authority over its premises could certainly confer on an officer the
right to be in the location from which he could conduct the surreptitious
m onitoring. In fact, one decision upholding the use o f video equipment
relied in part on this rationale. See, United States v. McMillon, supra.
We think, however, that this is not a controlling principle here. In the
cited cases the Governm ent agent’s “ search” was usually limited in time;
the outcom e o f the case may have been different were the investigation an
ongoing one. C f , Texas v. Gonzales, 388 F. (2d) 145 (5th Cir. 1968) (in­
volving repeated police peeps through window). Moreover, the targeted
individual himself left his affairs open to public view in these cases. See,
e.g., United States v. Coplen, 541 F. (2d) 211, 215 (9th Cir. 1976); Ponce
v. Craven, supra (both suggesting that if an individual wanted privacy, he
should have closed the window to public view). This rationale has little ap­
plicability in a Governm ent office where an individual cannot bar entry to
a Government agent. C f , United States v. Holmes, 521 F. (2d) 859, 865
(5th Cir. 1975), a ff’d by an equally divided court, 537 F. (2d) 227 (5th Cir.
1976) (en banc).
M ore im portantly, however, adherence to this “ plain view” rationale in
all circumstances would disregard the fundamental teaching o f Katz. The
C ourt there decided that individuals might retain under the Fourth
Amendment a justifiable expectation o f privacy despite the existence of
sophisticated techniques that could intrude on that privacy. Just as this
precept holds true in the area o f oral communications, it would appear to
be equally applicable with respect to an individual’s activities. O f course,
the fact that these activities are visible by officers in a position where they
are authorized to be will bear heavily on the issue whether a person’s ex­
pectations o f privacy are reasonable. But this fact cannot be determinative
without ignoring the essential inquiry m andated by Katz.
The courts appear to share this view o f Katz. In response to intrusive
• See also, People v. Berutko, 453 P.. 2d 721 (S.C. Cal. 1969) (opening in drape).
’ See also, State v. Day, 362 N .E. 2d 1253 (Ohio Ct. o f A pp. 1976). But see, State v.
Kaaheena, 575 P. (2d) 462 (S.C. Haw. 1978).
‘ See also, Commonwealth v. Hernley, 263 A. 2d 904 (Pa. Super. Ct. 1970) (use o f ladder
and binoculars); People v. Ferguson, 365 N .E. 2d 77 (111. A pp. 1977) (use o f binoculars).
68
investigative methods, the courts have gone beyond the test of whether the
officer was where he was authorized to be and focused instead on whether
his observations intruded on a reasonable expectation o f privacy. In
United States v. Kim, 415 F. Supp. 1252, 1254 (D. Haw. 1976), the court
explicitly stated that Katz protected individuals against “ unreasonable
visual intrusions,” even from viewpoints where the police had a right to
be, and held that the Governm ent’s use o f a powerful telescope to observe
activities in the defendant’s apartm ent constituted a search.7 The courts
have also held invalid those police searches which, although not dependent
on sophisticated equipm ent, depended on particularly intrusive methods
o f search to view areas usually considered private. See, e.g., Kroehler v.
Scott, 391 F. Supp. 1114 (E.D . Pa. 1975) (peephole use to view public
toilet stall).8
This approach is also reflected in the cases upholding police investiga­
tive activities. It is implicit in the decisions upholding police observations
into windows on the ground that, because the area was open to public
view, no reasonable expectation o f privacy existed. More recent decisions
make this trend more explicit by going beyond the “ plain view” concept
and inquiring whether the investigation intruded into the subject’s privacy
or constituted reasonable police conduct. See, e.g., United States v. Solis,
supra (use o f dogs to smell drugs in trailer home); United States v.
McMUlon, supra. See also, United States v. Bronstein, 521 F. (2d) 459,
464 (2nd Cir. 1965) (Mansfield, J., concurring); Comment, Shiner, Police
Helicopter Surveillance, 15 Ariz. L. Rev. 145, 162-67 (1973).
We believe that this approach would, at the least, preclude a
mechanistic resort to warrantless television surveillance in Government
buildings, although the Government may otherwise have full authority to
implement the monitoring. While Government employees may not
reasonably expect that their activities will remain wholly private, the
Hagarty and Humphrey decisions demonstrate that at least some
employees may retain justifiable expectations o f privacy at work.
A reasonable expectation o f privacy is a factual m atter and there may be
circumstances when no such expectation exists. For example, where (1) the
search is directly related to safeguarding the integrity o f the work being
performed by the employee, (2) the employee has effective notice that such
a search might be made, and (3) there is an especially im portant public
need concerning the integrity o f the work being performed by the em ­
ployee, the employee probably has no justifiable expectation o f privacy.
7 See also, People v. Fly, 34 Cal. A pp. 3d 665 (1973) (use of telescope); People v. Sneed, 32
Cal. A pp. 3d 535 (1973) (use o f helicopter); but see, State o f Hawaii v. Stachler, 570 P . 2d
1323 (Haw. 1977) (use o f helicopter); People v. Superior Court, 37 Cal. A pp. 3d 836 (1974)
(air patrol); Dean v. Superior Court, 35 Cal. A pp. 3d 112 (1973) (use o f helicopter).
■ See also, People v. Triggs, 506 P . 2d 232 (Cal. 1973) (observation o f a toilet stall) and
cases cited therein; State v. Bryant, 177 N .W . 2d 800 (Minn. 1970) (same); State v. Kent, 432
P. 2d 64 (Utah 1967) (observation from motel attic through ventilator to bathroom and part
o f bedroom).
69
See, United States v. Bunkers, 521 F. (2d) 1217 (9th Cir. 1975); United
States v. Collins, 349 F. (2d) 863 (2nd Cir. 1965) cert, denied, 383 U.S. 960(1966); Shaffer v. Field, 339 F. Supp. 997 (C.D. Cal. 1972), aff'd, 484 F.
(2d) 1196 (9th Cir. 1973); United States v. Donato, 269 F. Supp. 921 (E.D.
Pa. 1967), a ff’d, 379 F. (2d) 288 (3d Cir. 1967).
In most cases where the television surveillance is related to the safe­
guarding o f the integrity o f the employee’s work, the surveillance could
also be characterized as a search for evidence o f crime; some courts have
taken a dim view o f warrantless searches conducted on Government
premises for this purpose. See, United States v. Hagarty, supra, at 718;
United States v. Blok, supra, at 1201. C f , M cM orrisv. Alioto, 567 F. (2d)
897, 900 (9th Cir. 1978). Second, it is not entirely clear whether in most
cases the employees receive effective notice, or even any inkling, that they
may be subjected to surreptitious electronic surveillance; the absence of
such notice may preclude such surveillance. See, United States v. Speights,
557 F. (2d) 362 (3rd Cir. 1977) (relying heavily on absence o f notice to
overturn search o f employee’s locker). Finally, even if the Government
does give warning o f surreptitious television m onitoring, it is questionable
whether the courts would uphold searches based upon such notice in all
circumstances. The courts have, in other contexts, warned o f the Govern­
m ent’s manipulation o f an individual’s reasonable expectation o f privacy,
see, United States v. Albarado, 495 F. (2d) 799, 807 note 14 (2nd Cir.
1974); United States v. Kim, supra, at 1256-57; c f , Collier v. Miller, 414
F. Supp. 1357, 1366 (D. Tex. 1976),’ and they may accordingly look with
disfavor upon a notice o f television surveillance intended to alter the ex­
pectations o f a large num ber o f employees.
B.
A second justification advanced for conducting warrantless surrep­
titious television surveillance o f Government employees is the “ public”
nature o f the area to be surveilled. The Fourth Am endment will not pro­
tect inform ation knowingly exposed to the public, even if the exposure
occurs in a home or office. K atz v. United States, supra, at 351. Accord­
ingly, if a particular employee’s activities could be said to be exposed to
the public, see, United States v. Santana, A ll U.S. 38, 42 (1976), surrep­
titious television surveillance may be conducted without a warrant.
Under this standard, certain places are so open to public observation
that no justifiable expectation exists with respect to activities conducted
there. For example, open fields, see, A ir Pollution Variance Board v.
Western Alfalfa Corp., 416 U.S. 861 (1974), public streets, see, United
States v. Santana, supra, and com m on areas o f buildings generally open to
the public, see, United States v. Cruz Pagan, 537 F. (2d) 554 (1st Cir.
9 See also A m sterdam , Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 384
(1974); N ote, 86 Yale L .J. 1461, 1475, 1498 (1977).
70
1976), have been held, in given contexts, to be such public areas. This doc­
trine has been applied to uphold surreptitious television monitoring o f a
public place. See, Sponik v. City o f Detroit Police Department, supra
(tavern); see also, Poore v. State o f Ohio, supra (public washroom). We
believe that, as a general rule, warrantless surreptitious television surveil­
lance may be used to m onitor activity conducted in public areas. C f ,
United States v. Brooks, 567 F. (2d) 134 (D.C. Cir. 1977) (camera
surveillance o f customers in a “ Sting” operation); United States v.
Mitchell, 538 F. (2d) 1230 (5th Cir. 1976) (en banc) (videotaping o f activi­
ties in public parking lot).
However, several caveats are in order. First, even though an area may
be usually thought as open to public view, under special circumstances
even these areas may afford a reasonable expectation of privacy. See,
United States v. FMC Corporation, 428 F. Supp. 615, 618 (W .D. N.Y.
1977) (“ open fields” doctrine not applicable to a lagoon with highly
restricted access). Second, even though an individual is in an area where
his activities are open to public view, he still may reasonably expect that
his privacy is protected against certain types o f investigations such as the
use o f a beeper on his clothing, cf., United States v. Holmes, supra, at
866, or the use o f a powerful microphone to hear his conversations far
removed from those who could normally overhear him.
A different situation exists regarding Government offices or working
spaces generally not open to public view. As we have already outlined, an
individual in a private office has a greater justifiable expectation o f
privacy, at least with respect to surreptitious electronic monitoring. United
States v. Hagarty, supra. The more troublesome questions arise with
respect to offices that are occupied by two or more employees or spaces
that are entered at times by others.
Joint occupation o r frequent entry does not automatically preclude a
reasonable expectation o f privacy. Katz made clear “ what [an individual]
seeks to preserve as private, even in an area accessible to the public, may
be constitutionally protected.” 389 U.S. at 351-52. Under this standard,
although an individual’s activity is subject to the view o f those who share
or enter his office, he still may enjoy reasonable expectation o f privacy
due to such factors as the configuration o f the office or an individual’s
knowledge o f the habits o f others in the office. Indeed, the subject’s abil­
ity to shield his activities from others’ view is generally the reason for in­
stalling a continuous monitoring system to investigate his actions. We do
not believe that the fact that an office is shared or subject to entry by
others will always allow the Government to install surreptitious television
surveillance without a warrant. A recent decision by the Ninth Circuit
adopts this view. United States v. McIntyre, 582 F. (2d) 1221, 1224 (9th
Cir. 1978).
This conclusion is bolstered by recent developments in Fourth Am end­
ment law concerning reasonable expectations o f privacy in public places.
It appears that, even though an individual is in a public place, he may still
71
retain a reasonable expectation o f privacy with respect to certain forms of
investigation. This principle is evident in Katz itself: while an individual in
a public telephone booth is subject to visual surveillance (or to eavesdrop­
ping unaided by artificial techniques, see United States v. Fuller, 441 F.
(2d) 755, 760-61 (4th Cir. 1971)), he may not be subjected to electronic
surveillance without a warrant. In the same manner, several courts have
indicated that although a person driving in public is not free from visual
observation, he may reasonably assume that he is not being monitored by
a “ beeper.” See, United States v. Moore, 562 F. (2d) 106, 112 (1st Cir.
1977); United States v. Holmes, supra, at 866;10 but see, United States v.
Hufford, 539 F. (2d) 32 (9th Cir. 1976).
The above cases show that the lack o f reasonable expectations with re­
gard to one form o f surveillance does not necessarily forfeit the reasonable
expectations with regard to other forms o f surveillance. Rather, any in­
quiry into a reasonable expectation o f privacy must take into account a
person’s expectations both to his surroundings and to the methods o f in­
vestigation that may be utilized in those surroundings. The use o f sur­
reptitious monitoring may not be justified solely by the occasional pres­
ence o f others in the same room , because the subject could still reasonably
expect to be free from surreptitious m onitoring and because the Govern­
ment has not routinely used this type o f investigatory technique to date to
m onitor its employees’ activities. People v. Triggs, supra. The decision in
Hagarty supports this view. Just as the Government might not conduct
continual surveillance o f oral communications by electronic means,
neither can it maintain continual visual surveillance by electronic m eans."
Even though at least one court has upheld the use o f television
surveillance on the basis o f consent o f others in the room, Avery v. State,
supra, we do not believe that this factor will necessarily alter our con­
clusion. As discussed above, the doctrine o f consent is predicated on the
rationale that the targeted individual is voluntarily disclosing his activities
or communications to those around him. This rationale would allow
surveillance o f those activities that the target freely allowed others to see.
However, the rationale would have no application to activities that the
target was not voluntarily leaving open to others and which he might in
fact succeed in preventing others from seeing. In such instances the
10 See also. United States v. Choate, 422 F. Supp. 261, 269 (C.D . Cal. 1976); People v.
Triggs, supra; People v. Smith, 67 Cal. A pp. 3d 638, 654 (1977) (beeper on plane); People v.
Sneed, supra, at 541.
11 For this reason we do not believe that the result in Poore v. State o f Ohio, supra, retains
all o f its validity today. The court there upheld police observations and movies from behind a
two-way glass in a restroom on the basis that any member o f the public could have walked in
and m ade the same observation. The approach in Katz may alter this result by looking to the
reasonable expectations o f those using public restrooms, and some courts have explicitly so
held. See, Kroehler v. Scott, supra; People v. Triggs, supra. Moreover, even if one has no
reasonable expectations with regard to the public, he may still have a reasonable expectation
with regard to police use o f two-way mirrors and cameras.
72
surveillance is not merely securing evidence that would be otherwise avail­
able, but collecting evidence that the Government could not obtain at all
from the consenting individuals. Indeed, this seems to be the very purpose
o f surreptitious television surveillance.
Conclusion
It is apparent from the above discussion that few, if any, definitive con­
clusions can be made with regard to the general use o f surreptitious televi­
sion surveillance without a warrant. Rather, the question whether such
surveillance will am ount to a “ search,” and thus be subject to the stric­
tures o f the Fourth Amendment or o f various statutes that adopt Fourth
Amendment standards, must depend on all the facts and circumstances o f
a particular situation. A particularized study o f these facts and circum­
stances must be conducted in each case to determine whether judicial
authorization must be obtained.12
We recommend that the responsibility for screening proposed television
surveillance for law enforcement purposes be lodged in a Deputy Assistant
Attorney General for the Criminal Division. Where such surveillance is
proposed for foreign intelligence purposes, this same responsibility should
be vested in the Chief A ttorney o f the Investigation Review Unit. If, on
the basis o f this screening, the responsible official concludes that the
surveillance would not intrude on the target’s justifiable expectations o f
privacy, we suggest that he then be vested with the authority to approve
the surveillance. If the surveillance would infringe on the target’s
justifiable expectations o f privacy, he should be required to initiate pro­
ceedings for securing judicial authorization or, in cases involving foreign
intelligence, appropriate executive approval.
We further recommend that guidelines for the screening in the Criminal
Division and the Investigation Review be formulated in order to ensure
that the screening in the Criminal Division and the Investigation Review
Unit is conducted on a consistent basis.
J o h n M . H a rm o n
Assistant A ttorney General
Office o f Legal Counsel
11 In certain foreign intelligence situations—e.g., overseas surveillance—the approval of
the President or his designee might take the place o f judicial authorization in the absence of
legislation.